W v. I

FCMC 10365 of 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10365 OF 2006

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J U D G M E N T

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1.  This is the Petitioner Wife’s application for maintenance pending suit against the Respondent Husband for herself and the only child of the family, a son now aged 19 and is studying in a college in the U.S. The Wife used to run a property development business in China together with the Husband until the breakdown of their marriage in about 2005 when her involvement ceased.  She claims to have exhausted all her own means after the Husband stopped his maintenance payment since October 2005, and hence her application now before me.

The Background

2.  First, some relevant background. The Wife is now aged 47 and the Husband 51. Both were born and raised in Fujian, China and received university education there. The Wife is said to have come from a well-off and influential family with both parents as high-ranking officials in the Chinese government, with her father in particular said to be the head of the Foreign Ministry of the Fujian Province at one time. 

3.  In 1983 the parties were married in Fujian, and in 1988 they came to settle in Hong Kong after the Wife’s parents had earlier been posted here by the Chinese government. Shortly thereafter the Wife gave birth to the son, and in 1989 she started an import/export business trading in China making, in her words, millions of dollars. The parties soon bought their first property in Hong Kong at City Garden in North Point as their matrimonial home through a holding company called L Development Ltd.(“LD”) held by them in equal share. With profits generated from the Wife’s trading business and with the assistance of bank mortgages, they began to invest in the property market through LD Ltd. and 2 other companies incorporated by them, and there was a time when LD held 3 residential properties and 3 business premises.

4.    From the period between 1992 to 2005, with the help of the Wife’s parents and an uncle who used to be a legislator in Hong Kong, the parties were able to develop 3 major property projects in Hangzhou namely LV, CB and PS in chronological order, with the Wife mainly responsible for the promotion and sale of the units in Hong Kong and other parts of Asia, and the Husband for the daily operation of the companies which owned the projects, i.e. Hangzhou LL Property Development Ltd.(“Old LL.”) held by LD Ltd. and 2 other nominee companies of the parties for LV, and Hangzhou New LL Property Development Ltd.(“New LL”) also held by LD Ltd. as the majority shareholder for the other 2 projects, including the financial/funding and supervision of the projects, hence he was, and still is, stationed mainly in China.

5.     By 1997 all the houses of the first project LV had been sold and Old LL Ltd. made, according to the Wife, several hundred millions of dollars which were retained by the Husband for the development of the subsequent projects. On the other hand, due to the economic downturn at around the same time in Hong Kong, the parties’ properties in Hong Kong held by LD Ltd. all turned into negative equity and the Wife started to experience serious cash flow problems with the mortgagee banks which threatened with foreclosure actions, and when the Husband refused to divert sufficient money from Old LL Ltd. to Hong Kong to help, she had to sell some of the properties over the next few years to reduce the financial burden.

6.  As a result the parties’ relationship turned sour and in 1998 they met in Hong Kong to discuss their marital problem, during which the Wife suggested a divorce and to divide the profits from the LV project between them, but later changed her mind when the Husband offered that they should continue to develop their property business in China, and that he would remit RMB50,000 per month to her to meet her family’s needs and various other expenses in Hong Kong.

7.  In 2001 after the former matrimonial home had been foreclosed by the mortgagee bank, the Wife and the son moved into a rented apartment, and the Husband then adjusted his regular monthly remittance for them to HK$40,000 per month, plus additional payments from time to time.

8.  In 2003 the Wife set up several B.V.I. companies in Hong Kong at the request of the Husband including one known as RW Architects & Consultants Ltd.(“RW”) into which he would transfer money from New LL Ltd. from time to time. The reason for these transactions is not entirely clear between the parties, as the Husband’s case is that they were for use in the design and advertisement for their property projects in Hong Kong, but the Wife claims that the moneys would normally be converted into RMB and transferred back to the Husband’s personal bank accounts.   

9.  Despite their property development business apparently doing well in China due to its booming property market, the parties continued to have disagreements over various money matters, and in 2004 their relationship turned for the worse when the Wife’s father was hospitalised after a heart attack and they had a major dispute over the Husband’s contribution towards the medical expenses.

10.  In April 2005 the Wife’s father died from his illness, and the parties had another serious disagreement over the Husband’s contribution towards the funeral expenses. The Husband then requested the Wife to file her tax return separately from his from then on, and thereafter failed to return to Hong Kong for months including missing their traditional family gathering at the Mid-Autumn Festival.

11.  In September 2005 the Wife discovered that the Husband had without her knowledge back in 2003 caused LD Ltd. to transfer all its majority shareholdings in New LL to a company owned 99% in total shareholding by him known as PB (Asia) Ltd.(“PB”) to the effect that 97% of New LL have since been held by PB Ltd. with the remaining 3% by another company known as Zhejiang NC Ltd. held by the Husband together with his parents and a friend.

12.  At about the same time the Husband transferred $5 million to RW Ltd. in Hong Kong allegedly for planning and designing work for the projects in China. Upset by her discovery of his shares dealings referred above and believing the money came from New LL Ltd. in which she was interested, the Wife instead put the money in the account of a company known as HT Enterprises Ltd.(“HT”) owned and controlled by her and refused to return them to the Husband, which in turn led him to stop remitting any more maintenance payment to her.

13.   Matters finally came to a head when the Husband returned to Hong Kong in early October 2005 and met with the Wife at the matrimonial home for discussions about a possible divorce and division of their matrimonial assets which turned into an argument when the Wife refused to return the $5 millions, during which she accused the Husband of using violence on her resulting in bruises on her face and body, and causing her to flee from her home to take shelter at a friend’s place.

14.  The parties later met again in a restaurant for further discussion and the Husband agreed to draft an agreement on the division of assets for the Wife’s consideration. A few days later the Wife returned to the matrimonial home to find the Husband already returned to China but left behind what appears to be a draft document dated 12^th November 2005 for the Wife to guarantee that she would save up the said $5 millions properly and would only use the money to maintain herself and their son (Paginated Bundle : 518). He has since stopped his monthly remittance of $40,000 to the Wife.

15.    Upon his return to China, the Husband signed a transfer of shares agreement on 26^th April 2006 transferring all his shares in PB Ltd. to his father at a stated consideration of $990,000 but which he has subsequently conceded was never paid, as a result his father now holds 97% of New LL Ltd. which had assets worth more than RMB 54 millions according to its accountant report for the year ended 31^st December 2005(PB : 519), and on the Wife’s case should now be worth even more at RMB 1 billion today after taking into account of the higher average price of its 2 projects in China.

The Proceedings

16.    In June 2006 the parties met again in Hong Kong for further discussion about their divorce and the division of assets but again failed to reach any agreement. The Wife then left for the U.S. with the son to look for a college for his future enrolment. Upon her return to Hong Kong she discovered that the Husband had in July 2006 issued a writ in the High Court against her together with RW Ltd. and HT Ltd. as defendants for the return of the said $5 millions. One month later the Wife instituted these proceedings for divorce against the Husband on his unreasonable behaviour, and also sought maintenance pending suit and post-decree ancillary relief.

17.  In her Financial Statement (Form E) filed on 18^th October 2006, the Wife claimed to be still a director of HT Ltd. earning only $12,000 per month with virtually no assets or savings but more than $16 millions in debts. She also disclosed a monthly expenditure of about $185,600, including $45,000 for the son in the U.S., hence her need to seek maintenance pending suit in that amount. 

18.   In response the Husband filed his Form E about 3 weeks later on 6^th November 2006, a very sparingly made document apparently in his own hand writing despite the fact that he was then already legally represented, in which he revealed that he had given away all his shareholdings in PB Ltd. due to the Wife’s embezzlement of the $5 millions and the company’s huge debts of more than $150 millions incurred from the 2 projects in China. Similarly he disclosed a monthly income of only $4,000 to 12,000 with personal debts of more than $7.6 millions, and made no proposal of maintenance pending suit for the Wife or the son, but instead demanded her return of the $5 millions.

19.    This caused the Wife to immediately follow up with an application for the Husband to provide further details of his alleged transfer of his PB Ltd. shares and for an injunction restraining him from further disposing his assets including his interest in PB Ltd.

20.  At the hearing of her application on 11^th December 2006 during which the Husband was represented by counsel, the Wife was granted the injunction on an interim basis pending further disclosure of his dealing of his shares in PB Ltd., which he did on 16^th April 2007 when he confirmed in his 2^nd supplemental affirmation that he did already a year ago on 26^th April 2006 transfer all his 99% shareholdings in PB Ltd. to his father, and exhibiting thereto copies of the relevant instrument of transfer and bought and sold note.

21.   In his affirmation the Husband explained that as New LL Ltd., the only asset of PB Ltd., was then in serious financial difficulties with debts amounting to RMB162 millions, but since his father was offering his help to get him out of his trouble, and as he “has better connection of people ….. in China and he also has greater ability to raise the necessary finance to save the said company in China”, he therefore decided to transfer to his father his shares in PB Ltd. which he said had no value at all anyway (PB : 368).

22.    Not surprisingly the Wife found this explanation of the Husband unacceptable and immediately launched an application under s.17 of Matrimonial Proceedings and Property Ordinance, Cap.192 on 30^th April 2007 that his disposition of PB Ltd. shares be set aside on the ground that it was made with the intention to defeat her financial claims.

The Application

23.  Meanwhile further affirmations were filed by the parties with more disclosure and follow-up discovery, and it was not until 19^th November 2007 when the Wife decided to proceed with her application for maintenance pending suit after having allegedly exhausted all her savings including the said $5 millions without any income of her own or maintenance from the Husband. In her voluminous supportive affirmation filed on the same date, her 6^th in the proceedings and amounted to 127 pages including exhibits of her itemised monthly expenditure prepared by an accountant, the Wife gave details of how she spent more than $6 millions supporting herself and her son over the past 3 years from 1^st July 2004 at an average sum of over $170,000 per month, which has come down to about $150,000 for herself alone now that the son has left Hong Kong for college in the U.S., but with his school fees and personal expenses there amounting to more than $70,000 per month, the Wife therefore seeks a monthly sum of slightly over $224,000 as maintenance pending suit including contribution towards her legal costs.

23.   By his 4^th affirmation filed on 31^st January 2008 in reply and in opposition, the Husband disputes the Wife’s allegation that she has no income or means to support herself as he believes that she is still running a business in China through LD Ltd. and another company known as PC Ltd.(“PC”) under her control, and that she has also received monthly rental income of more than RMB40,000 by letting out some of the  properties of LD Ltd. without his consent, for which he has filed a lawsuit against her in China.

24.    He also disputes that the Wife or the son needs to spend as much as she claims, as the family expenses in the past only averaged about $40,000 per month, hence with her own income aforesaid she should be able to support herself and their son at the former standard of living without any contribution from him as he is in financial difficulties and cannot afford to pay her any maintenance. He also denies that he has ever agreed to the Wife using the said $5 millions to meet her expenses, but that in any event with that sum still under her control and available to meet her needs, he sees no reason for her to bring her present application.

25.  There was a further twist when the application finally came before me on 14^th March 2008 when it was revealed by Mr. Fong, counsel for the Husband that the Wife has been detained in China since early February by the authority to assist in their investigation of certain “illegal” commercial transactions, and therefore sought an adjournment to her application until such time when she returns to Hong Kong.

26.  Upon hearing arguments from both sides I refused the adjournment as I agreed with Mr.Pilbrow for the Wife that while there were very little details of her present situation in China, one could not ignore the possibility that she might return to Hong Kong at anytime, hence she was entitled to proceed with her application in her absence, and as the son is entirely dependent on the parties, it was also necessary for the court to consider his needs under the circumstances, and so the hearing went ahead with the application based primarily on the parties’ affirmations.

The Law

27.  The application is of course brought under section 3 of the said Matrimonial Proceedings and Property Ordinance under which the court is to award such sum as it thinks reasonable, and to do so the court has unfettered discretion : Waller v. Waller [1956] 2 WLR 1071, CA and Griffith v. Griffith [1957] 1 WLR 478, Raydan and Jackson on Divorce and Family Matters, 18^th edition, chap 16.17.

28.  It has also been said that the approach to maintenance pending suit should be empirical, and that as in most hearing of such applications, in particularly in the circumstances of the present case, where there is no oral evidence and therefore it is not possible or necessary to make any detailed investigation of their financial position, the court will have to take a broad view of the wife’s needs on the one hand and husband’s ability to pay on the other to come to a “rough and ready” conclusion, or take a “broad brush” approach, but may nevertheless have regard to any of the criteria listed under s.7 of the Ordinance that has been drawn to its attention, to make a reasonable award intended only to operate for a relatively short period of time pending the final determination of the ancillary relief application : see F v. F (maintenance pending suit) [1983] 4 FLR 382; Miller v. Miller [1985] 1 HKC 595; Wong Wai Chi Susanna v. Kim Miu Sup Mark, CACV 263/1998. With the granting of the decree nisi of divorce to the Wife recently on 12^th March, such period will likely to be no more than 6 – 9 months.

The Evidence   

29.   While there seems to be a big discrepancy between the parties over what should be the reasonable needs of the Wife and the son, and that the Husband has maintained throughout his affirmations how he could not afford to pay them any maintenance due to his own very little income and grave financial difficulties, Mr. Fong conceded on behalf of the Husband at the hearing that the son does have a need of some $32,000 per month for his school fees and general living expenses in the U.S. and offered to pay that amount for him starting 1^st April 2008. As for the Wife’s expenses, Mr. Fong also agreed that while it is not clear when she will return to Hong Kong, it may be necessary for the time being for her to retain her rented apartment as her residence, and offered to also pay for her rent at the monthly sum of $29,000 as stated in her 6^th affirmation.

30.    This would come to a total sum of some $61,000 per month that the Husband has offered to pay, and even ignoring for the time being Mr.Pilbrow’s subsequent clarification that the sum of $29,000 was only the Wife’s average monthly figure for her rental for the past 3 years adopted by her accountant when preparing her monthly expenditure for these proceedings and that her current rental is actually higher at $44,000 per month, as evidenced by her supplemental affirmation of 28^th February 2007 (PB : 256, 257), it begs the obvious  question : how can the Husband afford to pay $61,000 when his disclosed income amounts to only $4,000 - 12,000 per month and that he has his own expenses to meet?

31.  It is the Wife’s case that the Husband has still not performed his duty to make full and frank disclosure of his financial resources, in which case it has been said that the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of his assertions as to his ability to pay : see G v. G ( maintenance pending suit; legal costs) [2002] 3 FCR 339, [2003] 2 FLR 71.

32.  Similarly, if the court is dissatisfied with a husband’s explanation for his lack of income, and takes the view that he is deliberately arranging his affairs so as to keep money out of his possession because of his wife’s application, the court will make an order founded on its assessment of what the husband could reasonably have as his income if he chose to get it in or to earn or otherwise acquire it, as it has been said over and over again that the court “looked at realities…and not only ascertained what moneys the husband had, but what moneys he could have if he liked…” : J-PC v. J-AF [1955] p 215, 231, 241-242, CA, per Sachs J and Hodson LJ; Davis v. Davis [1967] p 185, 192, CA, per Willmer J.   

33.    It is common ground that the main income of the parties’ property development business in China would come from the net profits made from the sale of houses under the 3 projects, which on the Wife’s case ran in millions of dollars, rather than from any monthly salary of a mere few thousand dollars as the Husband has claimed to be his income in his Form E.

34.  According to the balance sheet of New LL Ltd. for the year of 2005, which was first exhibited to the Wife’s 5^th Affirmation of 8^th August 2006 (PB : 446, 519) in which she also set out in details the background and history of the parties’ property development business during the marriage, and to which the Husband has never filed any affirmation to rebut, the company had at that time total assets of more than RMB 219 millions and total debts of RMB 165 millions, hence a net equity of RMB 54 millions. It also shows an undistributed profit of RMB 9.39 millions at the beginning of that year, but by the end of the year the amount was reduced to only RMB 883,280.64, it thus appears that RMB 8.5 millions had been distributed as profit over the year to shareholders, but the Wife’s case is that she has never received any profits from New LL Ltd. which was then, and she believes still is, controlled by the Husband.

35.  While the balance sheet of a year later in 2006 reveals that the total amount of debts had gone up to RMB 369 millions, it also shows a much higher assets value at more than RMB 405 millions, hence a net equity of some RMB 36 millions (PB : 833).

36.  None of these documents were ever challenged by the Husband either in his affirmations or at the hearing, and while no doubt full oral evidence at the final ancillary relief hearing will be adduced for the true interpretations and effects of these balance sheets, they do not on the face seem to support the Husband’s case that the company was then in such serious financial difficulties that he had to transfer all his shares, which he said were then worth nothing, to his father on 26^th April 2006, when the balance sheet in fact shows that even with debts of RMB 182 millions at the beginning of that year, the company was still enjoying a net equity of RMB 52 millions with assets of more than RMB 234 millions.

37.   Furthermore, while the transfer is the subject matter of another application (section 17) of the Wife to be dealt with on a separate occasion when no doubt fuller evidence will be heard not just from the parties but possibly also from the Husband’s father as the transferee, there is no question that the burden of proof is on the Husband as subsection (3) provides that where the disposition took place less than 3 years before the application, and in this case it was just 6 months after the parties met for the last time to discuss their divorce and within 1 year of the Wife’s application, there is the presumption, unless the contrary is shown, that the disposition was made with the intention to defeat the Wife’s claim.

38.   However, from all the evidence before me in particularly the Wife’s all important 5^th Affirmation, to which as aforesaid the Husband has never properly responded or rebutted in any of his subsequent affirmations, it was the Wife’s family who had the influence and connection to help the parties in the development of their business in China, while the Husband’s family was said to be not well off and his father was “regarded by the Chinese government in the 50s and 60s as a member of the right wing, enemy of the proletariat” (PB : 450). There was never any mention of the Husband’s father having the means or ability to “raise the necessary finance to save the said company in China”, as the Husband claimed, until his 2^nd supplemental affirmation.

39.  In fact, there is still absolutely no evidence before the court from the Husband of any other information about his father, such as his background, his job or status, or any kind of information which may go to support his case. Even if his father does indeed have the ability to save the company, and there is no evidence to suggest that it needed to be saved, it is difficult to see why it had to be done by first transferring all the Husband’s shares to him, as there are clearly better ways of making him a share holder of the company, if that was what the Husband said was necessary to give his father or anybody for that matter, more power to negotiate with the creditors and banks for a better term in the restructure of the company’s debts, without requiring the Husband to give up all his shares. With his experience in running the company and developing its projects all these years, it is simply unnecessary, and in fact illogical, for the Husband to give up all his shareholding and control in the company in this manner, if the intention was indeed to save the company.   

40.    Even if one were to exclude the Husband’s shareholding in PB Ltd., and I do not see why for the reasons set out above, Mr.Pilbrow has submitted for the Wife that the documentary evidence before the court show that the Husband still own assets and properties worth more than RMB 71 millions, including RMB 6.6 millions owed to him by New LL Ltd. (PB : 527), his 4 properties in Hangzhou worth RMB 3.8 millions (PB : 528 - 531), total owner’s equity of Old LL Ltd. of RMB 23.2 millions (PB : 531 – 539), the proceeds of sale of 60% shares of Old LL Ltd. of RMB 15.1 millions (PB : 509), and the proceeds of sale of New LL Ltd.’s shares of RMB 23 millions (PB : 509).

41.  While it is not clear whether some of the proceeds of sale of the various company shares are still available at the Husband’s disposal, in particularly those in relation to Old LL Ltd. which occurred some years back, these figures nevertheless provide a good indication of the kind of profits and wealth that his property business in China were able to generate, and which would be too simplistic in my judgment for the Husband to explain away by just a few references to huge debts or financial hardship without more detailed and concrete evidence.

42.     For all these reasons I am satisfied that the Husband has more means than he has disclosed to meet the Wife’s reasonable needs which, as will be apparent, he used to do in fact at much more than merely $40,000 per month as he has suggested.

43.  In her 6^th affirmation the Wife explained how she would in the past fax a monthly list of her expenditure to the Husband in China for his consideration, whereupon he would fax his comments back to her with his remittance in the amount approved by him. She claims that the Husband had taken away some of these lists from the former matrimonial home during his last visit, but the 13 monthly lists for the period from August 2003 to July 2005 which she has been able to retrieve and exhibited to her affirmation (PB : 730 – 741) show that her listed monthly expenditure during that period would range from RMB 74,490 to more than RMB 180,000.

44.  From these documents it appears that the Wife had a regular household expenditure of RMB 43,000 per month at that time, and while some of the listed items such as her father’s medical expenses, office expenses and bank repayments are no longer relevant, others like holiday and overseas trips for the family, the son’s school expenses and extracurricular activities, household repair and purchases were in fact additional and necessary expenses not included in her regular household expenses, making her total monthly expenditure already well above the sum of $40,000 which the Husband suggested that she required at that time.

45.     As aforesaid the Wife has also produced a much more detailed account of her monthly expenditure for the 3 years period from July 2004 to June 2007 prepared by chartered accountants Hodson Impey Cheng (PB : 648 – 729) purportedly based on supporting documents and direct representation provided by her. While Mr. Fong has pointed out that no such supporting documents have been identified in the account, from the contents and in particularly the various figures as appeared in the monthly accounts, it appears that they would have included her bank and credit card statements.

46.  These monthly accounts clearly show a much higher level of expenditure than in those lists that the Wife used to fax to the Husband earlier, averaging at more than $173,000 per month for herself and the son for that period, despite the fact that her father’s medical expenses were no longer included after his demise in April 2005. While the general household expenses including rental payments had remained fairly constant at around $40,000 until January 2007 when the rent was increased to $44,000 per month, it appears that such significant increase was mainly due to the Wife’s personal expenses on clothing, cosmetics, entertainments, travelling and car expenses, and credit cards interest payments which were not generally included in her previous monthly lists, which is also why she says all her capitals, including the said $5 millions sent from the Husband, have now been exhausted which prompted her present application.

47.     While it is part of the Husband’s case in general that the Wife may have other income such as rental from her other properties which he suspects have not been properly disclosed, and that I also agree that she has so far not given a full and proper account of all those properties which she and/or her companies including LD Ltd. had since the 1997 economic downturn sold and their sale proceeds with documentary evidence, all of which no doubt she will have to properly deal with at the ancillary relief trial, but given the fact that she has now been detained and hence even if such income do exist, she would not be in any position to receive them, instead Mr. Fong for the Husband chose to challenge many of the Wife’s items of expenses, not quite on the basis that they are unreasonable or exaggerated, but that they are unnecessary given her present situation in China, such as most of her personal expenses like clothing, cosmetics, entertainment and travelling, of which otherwise I do not find anything out of the ordinary given the background and wealth of this family, but I do agree that under her present circumstances, realistically she can hardly argue that she would still have the needs to spend on those items.

48.  There are however still other items which in my view need to be paid even in her absence as of necessity to preserve a home for her and the son when he is in Hong Kong on school leave, or to avoid the  cancellation or forfeiture of certain necessary services, such as her rental of $44,000, basic household utilities which I would put at $1,500, insurance at $588, the salary of her domestic helper at $3,400, as well as her credit card interest payments and her legal costs, the total of which I would round up to $80,000 per month to include food for the helper and the pet.

49.   As I have said, the Wife’s other personal expenses in general do not appear unreasonable or exaggerated to me, given the background of this family and the wealth of the parties as well as the documentary evidence in court, and upon her return to Hong Kong I would expect the Husband to either adjust the amount accordingly, or to bring the matter back before me for proper argument if necessary.

50.  As for the son’s expenses, as aforesaid the Husband has offered to meet by a monthly sum of $32,900, which is less than half of what the Wife is seeking, the difference being mainly the provision for his car and his travelling expenses between U.S. and Hong Kong. I accept that the Wife’s estimation on some of the son’s personal expenses, including the 2 items just mentioned, may have been too high, and with some proper downward adjustment I would put his total expenses at $40,000 per month.

Conclusion

51.   In conclusion and for the reasons aforesaid I allow the Wife’s application to the extent, at this stage, of the total amount of $120,000 per month for herself and the son to be dated back to 1^st February 2008 when she was first being detained in China, to be paid by the Husband on the 1^st day of each month until further order. In the absence of the Wife in Hong Kong, the said monthly sum shall be paid to her solicitors on her behalf. As I have already said, I expect this sum to be adjusted upward to include the Wife’s other personal expenses upon her return to Hong Kong without prejudice to her right to seek to backdate such amount to cover the period before she was detained. If unfortunately her detention in China turns out to be much longer than anticipated, similarly the Husband may want to bring the matter back to court for further directions. It also goes without stating the obvious that the amount that I have so ordered are liable to proper adjustment in either direction at the final ancillary relief hearing when much more detailed evidence and testimony are available. 

52.  Lastly I propose to make a costs order nisi in favour of the Wife  to be taxed if not agreed, as she can be said to have been successful with her application, such order to be made absolute at the expiration of 14 days.