TWAMA also known as WAMA v. TDJ-PF

HCMP 2994/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2994 OF 2013

(ON AN INTENDED APPEAL FROM FCMC NO. 13094 OF 2012)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the Court):

1.  On 12 September 2013, HH Judge Melloy made an order that the husband (“H”) shall pay interim maintenance pending suit to the wife (“W”) for herself in the sum of $25,000 per month, and for the two children of the family in the sum of $20,000 per month per child, until further order. The order was made upon H’s undertaking to continue to pay for the children’s school fees, any school trips, and all other school-related expenses and fees connected with the children’s extracurricular activities. W’s application for leave to appeal against the order was refused by the judge on 22 October 2013. She now applies to this court for leave to appeal.

2.  The parties were unrepresented at the time of the hearing of the application for interim maintenance.  The main dispute between the parties was centred on the assessment of the value of the husband’s income and/or employment package.

3.  The husband is an expatriate working in the cosmetics field, with an expatriate package including housing, the payment of children’s school fees (though presumably not the other school-related expenses), medical and dental insurance, a company car, one round-trip Business Class air fare to his home country for himself and his family, 13 months’ salary and a discretionary year-end bonus.  He claims that he earns $136,000 per month.  His bonus is discretionary and he did not receive one for the previous year (2012).  Historically, he received a housing allowance of approximately $65,000 per month, on a lease (in the name of his employer) which had by the time of the application expired but which had been extended on a monthly basis, at a rental of $67,500.  H has already left the former matrimonial home and has been renting his own accommodation at a cost of $50,000 per month.  H claims that, after the separation or divorce, he will not be entitled to the same kind of housing, and his housing allowance will be reduced to that applicable to a single man.

4.  W works as a freelance designer through her own company set up in August 2012 and claims that she earns a minimal income.

5.  The evidence before the judge was not entirely satisfactory, perhaps partly because the parties were unrepresented and partly because of the nature of the application.  The judge largely accepted, for the purpose of the application, what H had contended in relation to his income.  She applied a broad-brush approach and, noting that both parties would have to cut their budgets, made the above order.

6.  Before considering the merits of this application in relation to the judge’s exercise of her discretion in this matter, it should be remembered that

“…it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”[1]

Although the above statement was made in the context of an order for maintenance, as distinct from maintenance pending suit, we think that the same observation applies.

7.  In this application for leave, W contends that the interim maintenance should have been calculated based on H’s overall package, which includes a salary of $150,000 per month, a monthly housing allowance of $67,500 and H’s bonus (which W contends H did receive for the year 2012).

8.  Sections 3 and 5 of the Matrimonial Causes and Property Ordinance (Cap 192) give the court the power to order a party to a marriage to make periodic payments, for the purpose of maintenance of the other party and the children of the marriage respectively, pending the resolution of the matrimonial cause or the parties’ financial disputes arising therefrom. The purpose of such an order is to enable the beneficiaries of the order to meet the recurring costs of living, before the matrimonial cause or financial disputes can be resolved, which could in many cases take a long time.  The amount of such payments must be reasonable, ie fair, in all the circumstances of the case, including the marital standard of living and the payer’s ability to pay.

9.  An application for interim maintenance often arises early in the matrimonial proceedings and, by the very nature of the application, needs to be dealt with swiftly to avoid hardship to the payee.  It is not appropriate and often not possible for the court to conduct a detailed analysis of the parties’ respective finances, when not all of the relevant evidence is necessarily before the court and when a detailed analysis (including the process of collecting all the relevant evidence) would take considerable time, thereby defeating the very purpose of the application which is to give the payee timely interim relief.  That detailed analysis is left to a later stage, at the resolution of the matrimonial cause or the resolution of the financial disputes between the parties.  Therefore, while a court seized of such an application will always be required to investigate to some extent the parties’ finances, the investigation can be conducted on a “broad brush” approach: HJFG v KCY (Maintenance Pending Suit) [2012] HKFLR 27.

10.  This was the approach adopted by the judge in determining the application.  There were disputes as to the parties’ respective incomes, but the evidence was less than satisfactory, often not clearly supported by documentary evidence, which made it difficult for the judge to arrive at accurate figures.  There were also different permutations of possible expenses, depending on what options the parties took in the choice of their accommodation, which issue at the time of the application was still up in the air.  The judge proceeded, for the purpose of the application, on the basis of 13 months’ salary per year, without bonus (as H contends that he did not receive one for 2012), ie about $136,000 per month, and that W would have an “income of sorts”.  Now that there are two households as a result of the separation, there will be extra expenditure (including additional rental payment) to be covered by the same amount of income: hence the judge’s observation that both parties would have to cut their budgets.  Eventually the judge ordered interim maintenance in the total sum of $65,000 per month for W and the children, which is about half of H’s monthly salary.  W does also have, the judge observed, an “income of sorts”.  Further, out of the remainder of his salary after the payment of the interim maintenance, H also has to pay for the children’s school-related expenditure (except the school fees which are paid by his employer), and has to make provision for salary tax.

11.  W’s sole proposed ground of appeal is that the judge should have ordered interim maintenance on the basis of the value of H’s entire package including on her case a monthly salary of $150,000, a housing allowance of $67,500 and H’s bonus.  We do not accept, given the state of the evidence, that we are in a position to disturb the basis upon which the judge proceeded in her calculation, ie that H did not receive a bonus for 2012 and had a monthly salary of $136,000.

12.  As to the issue of the housing allowance (at $67,500 at the time of the hearing of the application), we do not accept W’s argument that the judge erred in not including this amount in her calculation. As the evidence stands, whatever the housing allowance was or may be in the future, it is an amount which is disbursed every month for the rented accommodation, and does not form part of the remaining disposable income available for the purpose of other recurring expenditure.

13.  Pursuant to Order 59 rule 2A(5), we hereby determine the application without a hearing on the basis of written submissions only.  For the above reasons, we dismiss the application.  As both parties are unrepresented and H has not filed a statement as to why the application should not be granted, we have decided to make no order as to costs.  We consider the application to be without merit and make a further order that no party may under Order 59 rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

[1] Bellenden (formerly Satterwaite v Satterwaite [1948] 1 All ER 343, per Asquith LJ, at 345