WMH v. LCY

CAMP 123/2024, [2025] HKCA 92

On An Intended Appeal From [2024] HKFC 50 &

[2024] HKFC 131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 123 OF 2024

(ON AN INTENDED APPEAL FROM FCMC NO 11274 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  There are before the Court the following applications:

(1)  the Respondent (“H”)’s application by summons filed on 10 July 2024 (“the Leave Summons”)  seeking leave to appeal against the order of His Honour Judge G Own dated 15 March 2024 (“the Order”), whereby the Judge allowed the Petitioner (“W”)’s claim for ancillary relief and ordered H to pay W a lump sum of $4,720,000 within 30 days from the date of the Decree Absolute in full and final settlement of W’s claim for ancillary relief; and

(2)  H’s application by summons dated 30 July 2024 (“the New Evidence Summons”)  seeking leave to file and serve his affirmation as per the draft (“the Draft Affirmation”)  annexed to the New Evidence Summons in support of his application for leave to appeal.

2.  Having considered the documents and the submissions filed by the parties, we consider that it is appropriate to deal with the two applications on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a)  and rule 14A(1)  of the Rules of the High Court, Cap 4A.

BRIEF BACKGROUND

3.  H and W, formerly husband and wife, were married in Hong Kong in April 2013.  They have a pair of twin daughters born in April 2015 during their marriage.  In 2018, they separated. 

4.  On 19 September 2019, W petitioned for divorce on the ground of one-year separation with the parties’ consent to separate.  On 14 April 2020, a Decree Nisi was granted.

5.  On 19 July 2021, sole custody, care and control of the twin daughters were granted to H with defined access to W, including staying access.

6.  On 24 May 2022, W filed an updated Form 25 seeking a lump sum and property orders for herself in her claim for ancillary relief against H.  There was no cross claim for ancillary relief by H, whether for himself or for the twin daughters.

7.  The major dispute between the parties in the ancillary relief proceedings below concerned 4 landed properties (“Property A” to “Property D” respectively, and “the 4 Properties” collectively).  Except for Property B co-owned by the parties as joint tenants, Properties A, C and D are all under H’s sole name.  All 4 Properties are mortgaged to banks in Hong Kong.

8.  W’s case at the trial was that all 4 Properties formed part of the matrimonial pot which should be shared equally between the parties, while H’s position was that other than Property B which he agreed to share with W equally as a matrimonial asset, Properties A, C and D, which were purchased by him solely for investment purposes, should not form part of the matrimonial pot.

9.  Prior to the trial, the parties had reached agreement on the valuation of the 4 Properties and the amount of their respective outstanding mortgages.  The trial took place before the Judge from 28 to 30 June 2022.  On the first day of the trial, H’s counsel requested for an adjustment to the agreed values of the 4 Properties, but the request was objected to by W’s Counsel.  On the last day of the trial, the Judge directed the parties to file a joint letter with the court to set out whether adjustment should be made to the previously agreed valuation of the 4 Properties[1].

10.  By a joint letter dated 12 July 2022 from the parties’ legal teams, the prevailing market values of the 4 Properties previously agreed were adjusted to $4,404,000 for Property A, $6,128,000 for Property B, $5,950,000 for Property C, and $10,172,000 for Property D (“the Agreed Values”).

THE JUDGMENT

11.  On 15 March 2024, the Judge handed down a written judgment on W’s claim for ancillary relief (“the Judgment”).  Following the approach in LKW v DD [2010] 13 HKCFAR 537, the Judge found that as there were clearly surplus of assets available for distribution and there was no dispute that both parties had sufficient earning capacity to meet his or her financial needs (save for W’s accommodation needs to be addressed), this was clearly a sharing case from any perspective[2].  With regard to the 4 Properties, the Judge held that Properties B, C and D, but not Property A, were matrimonial assets available for sharing.  The Judge’s detailed reasons for his findings in relation to the 4 Properties are set out at §§71 to 101 of the Judgment, which it is not necessary to repeat here.

12.  To ascertain the total value of the matrimonial pot available for sharing, the Judge took into account, inter alia, (i)  the parties’ financial positions as disclosed in their respective updated Form Es filed on 14 February 2022, (ii)  the Agreed Values of Properties B, C and D, and (iii)  the respective accrued values of W and H’s mandatory provident funds (“MPFs”).  The Judge found that the matrimonial pot available for sharing rounded up to a net amount of $18.8 million. 

13.  The Judge decided that an equal division of the matrimonial pot would be a fair and reasonable outcome in the present case, having regard to the relevant factors under s 7(1)(a)  to (g)  of the Matrimonial Proceedings and Property Ordinance, Cap 192. He reasoned as follows:

“Assessing the parties financial needs

[113] As I decided above, both parties are self-sufficient in terms of financial needs except that W has accommodation needs. At the time of trial, W was living with her parents at a public housing unit.

Income, earning capacity, property and other financial resources

[114] Both parties have earning capacity. The only difference was the level of income. He was earning about 3 times of W’s income. Both of them are working in the Police Force and stability of work normally would not be an issue.

[115] H indicated that he would not seek promotion as he wanted to spend more time with the children. W also indicated she would not seek promotion as her level of English was not good.

…

Consideration of any good reasons for departing from equal division

Sources of assets

[117] On the evidence, I have found that 3 out of the 4 Properties are matrimonial assets. There was no dispute on the source of other assets of the parties.

Financial needs, obligations and responsibilities etc

[118] On the evidence, both parties are self-sufficient on over their monthly expenses. The twin daughters are well supported by H and under his custody, care and control.

[119] At this stage, H does not need to claim ancillary reliefs against W for the twin daughters.

Standard of living before breakdown of marriage

[120] There was no issue that the standard of living before the breakdown of the marriage was materially different from present.

Age of each party and duration of marriage

[121] H is 47 and W is 39. The marriage lasted for about 5 years and 4 months counting to separation in 2018.

Any physical or mental disability of either party

[122] Neither party has any physical or mental disabilities affecting their earning capacity.

Contribution of the welfare of the family

[123] Both parties’ contributed to the welfare of the family whilst both of them are employed full time by the Hong Kong Police Force.

Compensation

[124] The parties have no issue on this factor.

Deciding the Outcome

[125] Given careful and full consideration to all the circumstances, I decided that an equal division of the matrimonial pot would be fair and reasonable.

[126] I noted H’s submission that this was not a long marriage. On the duration factor, I would say the period of marriage is average, neither nor short marriage. However, this was not a ‘childless’ marriage and the twin daughters were born just 2 years after the marriage.

[127] On the facts of the ancillary relief, H had treated matrimonial assets as his own and had deprived W’s interests since 2014 (Property C)  or 2016 (Property D). It was H’s own case that there had never been any sharing of rental income of so-called ‘investment’ properties (Property C and Property D)  throughout the years. The only sharing of rental income was in respect of their joint investment (Property B)  but that did not always happen either.

[128] On the evidence of the Whatsapp messages, it was clear that W’s request to return to Property D with one of the twins was outright rejected without any reasons being given by H despite W had made monetary contribution. This could, in my view, amount to marital conduct justifying departure from equal division. The deprivation of spousal interests over matrimonial assets was yet another factor to support departure.

[129] On litigation aspect, it was unfortunate to see H, being represented by experienced lawyers and Counsel, attempted to run his case against well settled legal principles. To some extent, this could amount to litigation conduct and must be avoided.

[130] Although H produced no evidence of his estimate of 6 million to support each of the twins until their maturnity, I am mindful to take note of his acceptance of sole responsibilities to support the twin daughters.

[131] On a careful assessment of all the circumstances and to achieve fairness, I stand by my decision of equal division (50:50)  in this case.” [sic.]

14.  Accordingly, the Judge ordered H to pay W a lump sum of $4.72 million, made up of W’s half share of the matrimonial pot (HK$9.4 million), less the value of her total assets (approximately $4.68 million)[3].

15.  On 12 April 2024, H issued a summons in the court below seeking leave to appeal against the Judgment.  On 26 June 2024, the Judge gave a written decision (“the Leave Decision”)  refusing to grant leave to appeal.

THE PRESENT APPLICATIONS FOR (1)  LEAVE TO APPEAL AND (2) ADMISSION OF NEW EVIDENCE

16.  By the Leave Summons, H renewed his application for leave to appeal against the Order to the Court of Appel.  Attached to the Leave Summons is a draft notice of appeal (“the Draft Notice of Appeal”)  containing the following three intended grounds of appeal:

(1)  The Judge erred in deciding that there should be an equal division of the matrimonial pot (“the 1^st Intended Ground”).

(2)  The Judge erred in the computation of the matrimonial pot, in that he failed to apply a discount to the face value of the parties’ respective MPFs (“the 2^nd Intended Ground”).

(3)  The Judge erred in ordering H to pay W a lump sum of $4.72 million within 30 days from the date of the Decree Absolute, without making any order for the sale of the landed properties (“the 3^rd Intended Ground”).

17.  On 18 July 2024, H lodged his submissions in support of the Leave Summons.  On 24 July 2024, W lodged her statement in opposition.  As pointed out by Mr Lo (on behalf of W)  at §2 of W’s statement in opposition, H has not challenged any findings of fact by the Judge in the Judgment[4].

18.  By the New Evidence Summons, H sought leave to adduce “evidence of the current/prevailing market situation and values of [Properties B, C and D], and the implications of the [Order] on the financial positions of the parties given the current market condition”, in support of the 3^rd Intended Ground[5]. 

19.  On 3 September 2024, H lodged his submissions in support of the New Evidence Summons.  On 17 September 2024, W lodged her submissions in opposition, followed by H’s submissions in reply lodged on 24 September 2024.

DISCUSSION

20.  The relevant principles for granting leave to appeal from a judgment given by the District Court are well settled, and will not be repeated here.

The 1^st Intended Ground

21.  Under the 1^st Intended Ground, H contends that in the particular circumstances of this case, a fair distribution of the matrimonial pot should be at least 60% in his favour, and not on a 50:50 basis as ordered by the Judge.

22.  In support of the 1^st Intended Ground, Mr Lam (for H)  raises 2 main arguments:

(1)  The Judge failed to pay sufficient and proper regard to H’s acceptance of sole responsibility to support the twin daughters of the family, which “clearly justify a departure from equal division”.  Had he done so, he should have come to the conclusion that an equal division would be unjust and unfair to H, for the reasons identified in the Draft Notice of Appeal.

(2)  The Judge wrongly took into consideration certain “marital conduct” and “litigation conduct” of H and appeared to have relied on them as constituting “factors justifying departure from equal division against H, which dwarfed or neutralised the factors justifying departure from equal division in favour of H”.  The Judge ought not to have taken those matters into account because (i)  his criticisms of H’s conduct are unfair and inconsistent with the evidence, and (ii)  in any event, a party’s conduct should be regarded as a material factor for the present purpose only if it is “obvious and gross” in the sense as explained in Wachtel v Wachtel [1973] Fam 72 (at p80).

23.  Neither argument has merit.  As a starting point, it bears emphasis that financial provision applications in matrimonial proceedings are highly fact-specific, and the weight that may be given to any relevant factor in an application for ancillary relief involves an exercise of discretion: LKW v DD, §§52, 85 and 131.  The well-established principles for appeals against an exercise of discretion by a trial judge are applicable.

24.  In respect of the 1^st argument, while the fact that one of the parties will be left with significantly more onerous obligations or responsibilities than the other is a relevant factor when considering whether there should be a departure from equal division, the weight to be given to such factor is a matter of discretion for the Judge (LKW v DD, at §§106, 107 and 131).  In deciding whether to depart from equal division in the present case, the Judge had plainly considered H’s role as the primary care-taker for the twin daughters[6]. However, taking into account H’s monthly income of over $90,000 and his decision not to claim ancillary relief against W for the twin daughters, as well as other relevant factors, the Judge ultimately decided that the matrimonial pot should be shared equally.  The Judge did not commit any error of principle, and his decision was one reasonably open to him in the exercise of his discretion.

25.  In the Draft Notice of Appeal (at §1(1)(g)  - (m)), it is argued that the “broad-brush” estimate given by H in his oral evidence at the trial that it would cost him around $6 million to support both daughters financially until their completion of university was not challenged by W in cross-examination, and the estimate was, if anything, conservative having regard to the monthly expenses of the twin daughters stated in H’s updated Form E.  H complains that the Judge erred in rejecting or disregarding the estimate on the ground that it was not supported by evidence.  H also complains that the Judge erred in taking the sum of $6 million as H’s estimate to support each of the twin daughters in the future.  In addition, H refers to the low monthly expenses spent by W on the twin daughters when compared to those spent by him, and his decision not to seek promotion in his career in order to spend more quality time with his daughters, in support of this intended ground of appeal. 

26.  None of the above arguments has substance.

27.  As pointed out by the Judge in the Leave Decision at §§32 and 33, H was legally represented and fully assisted by counsel at the trial and, through his counsel, unequivocally confirmed his position that he would not be seeking any ancillary relief for the twin daughters.  There was nothing to suggest that the welfare of the twin daughters would not be properly provided for given H’s financial ability.  The fact that he had spent more on the twin daughters than W was readily explicable and understandable having regard to the fact that he earned about 3 times of W’s income.  Should there be any material change of circumstances in the future, H could still make an application for the twin daughters’ maintenance during their minority or prior to their cessation of full time education[7].

28.  H argues that there is no evidence that W will be able to pay any significant amount of the twin daughters’ maintenance.  In our view, whether any future application by H for maintenance on behalf of the twin daughters will be successful or yield any useful result is speculative at this stage.

29.  As for the complaint that the Judge erred in taking the sum of $6 million as H’s estimate to support each of the twin daughters in the future, in the Leave Decision, at §34, the Judge accepted that it was a typo which should have read for both daughters.  It is surprising that H should persist with this point after the Judge’s clarification.

30.  As for the complaint that the Judge should not have rejected or disregarded H’s estimate of $6 million as the expenses for bringing up the twins daughters on the ground that it was not supported by evidence,  regardless of whether there was any sufficient basis for the estimate, as earlier mentioned, we consider that the Judge was entitled to give little or no weight to the fact that H would be taking up the sole financial responsibilities for maintaining the twin daughters under his custody, care and control in the circumstances of the present case.  We also consider that the Judge was entitled to take the view that the expenses for the upbringing of the twin daughters was not an issue which required determination by him.

31.  The second argument raised by Mr Lam concerning the Judge’s criticism of H’s conduct is a non-starter.  As stated at §99 of the judgment of the Court of Final Appeal in LKW v DD, the conduct of the parties is in principle a factor which may, alone or in combination with others, result in a departure from an equal division.  In the present case, notwithstanding the Judge’s observations or views on H’s conduct[8], he did not in fact make any order departing from an equal division against H.  There is also no basis to suggest that the Judge would have made an order departing from an equal division in favour of H but for his views on H’s conduct.

32.  In all, the 1^st Intended Ground is not reasonably arguable, and does not have any reasonable prospect of success.

The 2^nd Intended Ground

33.  The 2^nd Intended Ground can be briefly disposed of.  Mr Lam argues that a discount should be applied to the face value of the MPFs held by the parties when computing the matrimonial pot, because MPF is an illiquid asset and a distinction should be drawn between an asset which can be immediately realised for cash and one that is not readily realisable or transferrable until much later.  In support of this proposition, Mr Lam relies on the decision of His Honour Judge I Wong in SSLT v SMFC [2019] HKFC 250, at §§41 to 48, which has since been followed in a number of cases decided by the Family Court[9].  Mr Lam further contends that the Judge should have applied a 50% discount to the face value of H’s MPF, and 60% discount to that of W’s MPF.

34.  Mr Lo objects to the application of the proposed discounts to the parties’ MPFs on the ground that it is a new point which was not raised at the trial, and there was no investigation into the following fact-sensitive matters: (i)  actuarial evidence on the discount applicable; (ii)  likely timing of retirement of H and W respectively; (iii)  possibility of delayed retirement of H and W respectively; and (iv)  factors and circumstances where MPF might be withdrawn early.

35.  In response, Mr Lam argues that the proposed discount rates are not “factual evidence”, but he has not pointed to anything which can substantiate the discount rates proposed by H.

36.  We accept, as a matter of principle, that for the purpose of determining the value of the matrimonial pot, a discount may appropriately be applied to an asset which cannot be immediately realised for cash or one that is not readily realisable or transferrable until much later.  However, whether a discount should be given, and what discount rate should be applied, must depend on the circumstances, including the nature of the asset in question and the period of time that must or will likely elapse before the asset can be realised. In this case, there was some evidence concerning the normal retirement age of a police officer.  We doubt whether actuarial evidence is necessarily required to determine the appropriate discount that should be applied in respect of the parties’ MPFs.  However, there must be some proper basis to substantiate the proposed discount rates.  H has not given any basis for his proposed discount rates (namely, 50% in the case of his MPF and 60% in the case of W’s MPF).  Further, issues such as the possibility of early/delayed retirement for a police officer, the circumstances where the MPF might be withdrawn early, and the appropriate discount rate(s)  were not investigated or argued at all at the trial.  Also, as mentioned in the Leave Decision (at §§50 and 51), no issue was raised by H at the trial concerning the value of the MPFs.

37.  In the circumstances of this case, we are not satisfied that there was no reasonable possibility that the state of the relevant evidence on the issue of discount would have been materially more favourable to W had the point been taken by H.  Mr Lo’s Flywin objection to the 2^nd Intended Ground is well-founded.  We do not consider the 2^nd Intended Ground to be reasonably arguable, or have any reasonable prospect of success.

The 3^rd Intended Ground

38.  Under the 3^rd Intended Ground, Mr Lam argues that:

(1)  The Judge erred in not making an order for the sale of any of the landed properties, notwithstanding that it was obvious from the circumstances of the case that H could not satisfy the lump sum award without first selling one or more of the 4 Properties.

(2)  In ordering H to pay a lump sum award based on the valuation of Properties B, C and D assessed as at the time of, and/or shortly after the trial, the Judge failed to apply his mind to, and the Order did not allow for, the fluctuation or volatility of the property market in Hong Kong, particularly when there was an intervening period of more than 18 months between the time when H filed his reply submissions and the date of the Judgment.

(3)  The Judge erred in computing the lump sum payable by H on the assumption that the landed properties could be sold at the Agreed Values in circumstances where the value of Properties B, C and D had substantially decreased by 19% to 21% during the aforesaid intervening period.

(4)  By failing to make any order for the disposition of Property B, the Judge failed to achieve a “clean break” between the parties.

39.  The crux of H’s complaint under this intended ground is that it is unfair and prejudicial to him to have to pay a lump sum of $4.72 million to W when it is impossible for him to meet the payment obligation without selling any of the landed properties, especially when the property market in Hong Kong has experienced a significant downturn after the trial and the market values of Properties B, C and D have substantially decreased given the latest market conditions.

40.  In support of this intended ground of appeal, H applies, by the New Evidence Summons, for leave to adduce the Draft Affirmation  under Order 59, rule 10(2)  of the Rules of High Court and/or the inherent jurisdiction of the court.  In the Draft Affirmation, H seeks to establish, by reference to (i)  the “Centa-City Leading Index” between 30 June 2022 (the last day of trial)  and 5 April 2024, and (ii)  the updated valuation of Properties B, C and D (as at 18 March 2024)  given by 5 banks, that the private residential properties market in Hong Kong had dropped by about 18.22% during the period from 30 June 2022 to 5 April 2024, and the market values of Properties B, C and D as at 18 March 2024 had dropped by a total of $4,766,000 from their Agreed Values (ie a 21.4% decrease).  After taking into account the total outstanding mortgage amounts of these three properties as at 5 April 2024 and the proposed discounts to the parties’ respective MPFs (an issue which we have dealt with above), and all other things being constant, the matrimonial pot would be substantially reduced from $18.8 million to approximately $12.9 million in value, a half share of which would yield approximately $6.45 million.  Thus, H contends that he should only transfer assets amounting to approximately $3.19 million to W (ie $6.45 million less $3.26 million, being the value of assets held by W)  to achieve an equal division of the matrimonial pot.  Otherwise, W would have made an unfair gain of approximately $1.53 million, effectively taking up more than 50% of the value of the matrimonial pot.

41.  Mr Lam submits that the proposed new evidence should be admitted under the Ladd v Marshall principles, or alternatively under the wide discretion of this Court with reference to the principles set out in Cheung Wing Kuen Samuel v Ip Chui Sum [2022] 3 HKLRD 709[10].

42.  As noted by Lam VP (as he then was)  in Man Lin Heung, the Administratrix of the Estate of Man Kwai Yin v 梁根林 [2019] HKCA 846, although procedurally an application for leave to adduce new evidence could not be entertained until after leave to appeal has been granted, an applicant in an application for leave to appeal can support such application by reference to new evidence if he can demonstrate that it is reasonably arguable that the Court of Appeal would grant leave by reference to the criteria in Ladd v Marshall[11].

43.  In respect of an application for leave to adduce “matters which have occurred after the date of the trial or hearing” under Order 59, rule 10(2)  of the Rules of the High Court, the strict Ladd v Marshall criteria are not applicable.  Instead, the applicable principles can be found in the judgement of Chu VP in EBS v NTCD [2023] HKCA 425 where the learned judge, at §23, referring to Re China Fishery Group Ltd [2020] HKCA 169, at §26, and Cheung Wing Kuen Samuel v Ip Chui Sum (supra), at §43, stated the following:

“(1)  The Court of Appeal has a wide discretion in relation to admitting such fresh evidence but it should always be exercised sparingly with due regard to the need for finality in litigation: Hughes v Singh, The Times, 21 April 1989.

(2)  It is impossible to produce an exhaustive list of considerations relevant to the exercise of that discretion, but the following factors will always be material:

(a)  the extent to which the fresh evidence may affect the award of damage; the greater the extent the more likely and ready the Court of Appeal should be to admit the evidence;

(b)  the time element; it is not necessary that the fresh evidence should emerge before the case would ordinarily reach the Court of Appeal, but the closer to the date of trial the more likely it is that the evidence will be admitted; and

(c)  the conduct of the parties; any inequitable conduct on the part of a litigant will plainly be relevant, and other conduct may also be relevant.

(3)  The evidence should be admitted in all cases where it would be an affront to one’s sense of fairness not to admit it. In applying that test the court takes into account all the circumstances, before, during and after the trial: Hughes v Singh.

(4)  The new evidence must substantially affect a basic assumption made at the trial, the matter is one of degree.”

44.  In respect of this ground of appeal, Mr Lam also relies on Robson v Robson [2011] 1 FLR 752, at §66, where Ward LJ said that “[w]here a lump sum can only be paid out of the proceeds of sale of property, the order should ordinarily link payment to the completion of the sale and the receipt of the proceeds” [emphasis added].

45.  In the present case, the following features seem to us to be significant:

(1)  Notwithstanding the parties’ agreement on the revised values of the 4 Properties (as at 30 June 2022)  contained in a joint letter to the court dated 12 July 2022 after the conclusion of oral hearing, the evidence now proposed to be adduced by H indicates that there had been further significant downward adjustment to the property values between the date of that letter and the date of the Judgment (15 March 2024), being some 20 months later.

(2)  There were materials before the Judge at the trial indicating that that H would not, or might not, be able to pay the lump sum award without selling one or more of the 4 Properties[12].

(3)  There was a significant time gap and/or change in the value of the matrimonial pot between the date of the hearing and the date of the judgment.  Although generally, the value of the matrimonial pot in an application for ancillary relief should be assessed as at the date of the hearing[13], whether there is any scope for modification of this general rule and, if “yes”, how it may be modified in such circumstances is an issue which merits further consideration .

(4)  Whether H should reasonably have issued an application to adduce further evidence or make further submissions on the market values of the 4 Properties after the conclusion of the hearing but before the handing down of the Judgment is debatable.

46.  In our view, the 3^rd Intended Ground has a reasonable prospect of success.  Having reached this view, it would not be appropriate for us to further analyse the merits of this ground, which will have to be fully ventilated at the substantive hearing of the appeal.

47.  Subject to the aforesaid, we do not see any other reason in the interests of justice why the appeal should be heard.

DISPOSITION

48.  Leave is granted to the Respondent to (i)  adduce the evidence contained in the Draft Affirmation in support of the application for leave to appeal, under the New Evidence Summons, and (ii)  appeal against the Order, limited to the 3^rd Intended Ground in the Draft Notice of Appeal, under the Leave Summons.

49.  We shall leave it to the Respondent to make an appropriate application for leave to adduce the Draft Affirmation in support of the substantive appeal, and trust the parties to deal with such application in a costs efficient manner.

50.  On the issue of costs, in view of the fact that the Respondent has failed to obtain leave to appeal on 2 out of 3 intended grounds of appeal, we order the Respondent to pay 50% of the costs of the Leave Summons to Petitioner.  The balance 50% of the costs of the Leave Summons, as well as the costs of the New Evidence Summons, shall be in the cause of the appeal.  We summarily assess 50% of the Petitioner’s costs of the Leave Summons in the sum of $70,000.  The above costs order is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.