WXJ v. YCK

FCMC 677/2018

[2020] HKFC 212

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 677 OF 2018

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BETWEEN

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D E C I S I O N

(Extension of time for filing Notice of Appeal)

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Background

1.  The Petitioner was the Wife (“W”) and the Respondent was the Husband (“H”).  There is a child of the family, a girl, born in August 2014 who is now at the age of 6.

2.  On 30 June 2020, this Court handed down its Judgment after trial whereby H was required to pay maintenance pending suit for W in the sum of HK$8,500 a month and interim maintenance for the child of the family in the sum of HK$7,400 a month, both to commence on 15/7/2020 and thereafter on or before the 15^th day of each succeeding month until further Order (“MPS Decision”).

3.  On 15 July 2020, H through his then solicitors Messrs. Khoo & Co., filed an Inter Partes Summons seeking :-

“1. The Respondent do have extension of time to file and serve a Notice of Appeal, if so advised, against the Judgment by His Honour Judge G. Own made on 30 June 2020 within 14 days upon the extension of legal aid, if any, for filing the Notice of Appeal.

2. The costs of this application be reserved.”

4.  Oddly though, the Inter Partes Summons had not been scheduled for any date or time for hearing.  Further, there was no affirmation or letter to explain why this was so, not to say that there was no draft of any grounds of appeal, written statement/skeleton submission so required when a party intends to appeal any decision of the Family Court[1]. Worst still, there was no affirmation of service as to whether the Inter Partes Summons had been served on W’s solicitors on record.

5.  On 22 July 2020, Messrs. A Lee & Partners filed a Notice of Change of Solicitors in place of the said Messrs. Khoo & Co.  It was noted that it was the same assigned solicitor Mr. Wong Ho Chun of Messrs. A Lee & Partners represents H in the Notice of Re-assignment of Solicitor dated 16 July 2020.

The Court’s Views

6.  From the contents of the Inter Partes Summons, H intended to file a Notice of Appeal contingent upon (a) being so advised to do so; and (b) extension of his legal aid for filing the Notice of Appeal.

7.  At the time of this Decision, 3 months had elapsed after the said Inter Partes Summons was issued and also over 3 months after the MPS Decision.  This Court had, however, yet to be informed as to the grounds of H’s intended appeal or whether there was any extension of H’s legal aid for him to file a Notice of Appeal.  As a matter of fact, the assigned solicitor for H had never informed the Court that H had ever requested for extension of his legal aid certificate for the said purpose.  On the other hand, it was noted that W had obtained extension of her legal aid certificate on 30 July 2020 for enforcement of the MPS Decision and that enforcement proceedings are already on its way.

8.  This is another oddity that H simply filed an Inter Partes Summons without seeking a call-over hearing. 

9.  In the circumstances, the said Inter Partes Summons served no real or any practical purpose and must be dismissed.  I wish to add that had H pursued his Inter Partes Summons properly and diligently in accordance with the said Protocol for lodging appeals, it would still not operate as any stay of execution of the MPS Decision and W was fully entitled to continue with her enforcements proceedings.

Decision

10.  For the above reasons, I will dismiss H’s Inter Partes Summons filed on 15 July 2020.

11.  Since there was no affirmation of service of the said Inter Partes Summons, there will be no Order as to costs.  I also decided that there should be no order for legal aid taxation of H’s own costs.

Orders

12.  I now grant the following Orders :-

(a) H’s Inter Partes Summons filed on 15 July 2020 be dismissed;

(b) There be no Order as to costs; and

(c) There be no Order for legal aid taxation of H’s own costs.

13.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.