PLERN BARING, THE RIGHT HONOURABLE THE COUNTESS OF CROMER v. EVELYN ROWLAND ESMOND BARING THE RIGHT HONOURABLE THE EARL OF CROMER

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REASONS FOR JUDGMENT

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Macdougall, J.A.:

1. This is an interlocutory appeal by the respondent husband ("the respondent") in matrimonial proceedings in the District Court against an order by way of mandatory injunction made by His Honour Judge Surman on 17th July 1992 on the petitioner wife's ("the petitioner") ex parte summons dated 14th July.

2. The summons, notice of which was given to the respondent's solicitors, sought an order that the respondent allow the petitioner to enter, remain and reside at a flat occupied by him at 1902A 8 Old Peak Road, Queen's Garden until further order, or, alternatively, any other orders which may be deemed just and convenient.

3. At the hearing of the summons at which Miss Mok appeared for the petitioner, and Mr. Payne appeared for the respondent, the petitioner's application was adjourned to 17th July upon the undertakings of the respondent not to dispose of any of the matrimonial property at the Queen's Garden flat and to pay for all hotel fees incurred by the petitioner at the Mandarin Hotel from 14th July to 12.00 noon 18th July 1992 or until further order.

4. Mr. Payne told us that he gave these undertakings on behalf of the respondent because he had formed the view that the judge would otherwise have granted the petitioner the relief she sought. It was therefore necessary, he said, to seek an adjournment so that he could research the authorities and be in a better position to resist the application.

5. At the adjourned hearing on 17th July the judge, having read two affirmations of the petitioner, one affidavit sworn by a Ms Bird on behalf of the petitioner and an affidavit and an affirmation respectively sworn by a Ms Bautista and affirmed by Miss Ling on behalf of the respondent - the respondent not having filed an affidavit - and having heard argument from counsel on both sides, ordered that the respondent pay to the petitioner the basic room rate at the Mandarin Hotel at $2,300 per day plus 15% tax and service charges, her laundry expenses and her personal food expenses limited to $600 per day until further order. These charges and expenses come to at least $3245 per day, which is over $100,000 a month. The judge granted leave to the respondent to appeal against the order. He also ordered that an application by the petitioner for interim maintenance be adjourned to a date to be fixed, that the respondent file his affidavit of means within 21 days and that the petitioner file her affidavit of means 14 days thereafter.

6. The respondent now seeks orders from this court (1) setting aside the mandatory injunction and the judge's order that the respondent should pay the petitioner's costs of the summons, (2) dismissing the summons and (3) that the petitioner should pay the respondent's costs of and incidental to the summons and of this appeal.

7. The notice of appeal set out the following seven grounds of appeal and stated that the respondent reserved the right to deliver further grounds when the judge's judgment became available

(1)    the learned Judge had no jurisdiction to make the said Order,

(2)    that in any event there were no legal grounds or factual reasons for making the said injunction or the said Order,

(3)    that an injunction can only be granted to protect a legal right and there was no legal or equitable right of the Petitioner to protect,

(4)    there was no or no proper application before the Court to make the said injunction,

(5)    there was no evidence before the Court that the Petitioner required either to stay in the Mandarin Hotel or indeed in Hong Kong at all,

(6)    there was no affidavit of means of the Petitioner before the Court, so that there was no evidence that the Petitioner needed the money in order to stay in Hong Kong,

(7)    the learned Judge ignored the fact that the Petitioner has a house of her own in Thailand, where she normally resides, which said home was paid for by the Respondent, alternatively wrongly held that the Petitioner was entitled to reside in two matrimonial homes.

8. The petitioner cross appeals, pursuant to leave given by the judge on 22nd July, against his refusal to order the respondent to permit the petitioner to enter, remain and reside at the flat at Queen's Garden, and seeks an order that she be granted that relief by this court.

9. The principal evidence before the judge as to the domestic arrangements of the parties and the state of their marriage was that contained in two affirmations of the petitioner of the 14th and 17th July, and a bundle of correspondence between the parties which was an exhibit to the first of those affirmations.

10. It appears from the petitioner's affirmation that 15th November 1990 the respondent, with whom she married since 1971, moved out of the matrimonial on about had been bedroom and that, while they continued to live under the same roof, they had since then been leading separate lives. Since about December 1991 she and the respondent had had several discussions regarding their marital problems and had been anxious to work out an amicable agreement. While these negotiations were proceeding, the respondent had agreed that they should both continue to use their matrimonial home at Sutton Court, Harbour City, Kowloon when they were in Hong Kong. The parties also have a matrimonial home in Bangkok which it was agreed they could both occupy when they were in Thailand.

11. Since 1974 Hong Kong has been their home. The petitioner has an office in Hong Kong and she has friends and her son from a prior marriage living here. Both parties travel extensively. Over the last year the petitioner has resided for an aggregate period of some 3 to 4 months in Hong Kong. The respondent began travelling eight years ago and spends hardly any time in Hong Kong.

12. In March 1992 the respondent told the petitioner that because his car had been stolen from Sutton Court - apparently he has had three cars stolen from that address - he was considering moving to a new flat. The petitioner offered to look for a flat for him but the respondent replied that he would be dealing with the matter. The petitioner then told him that she would need at least a week to pack the household items and their belongings in order to prepare for the move. Her understanding was that they would both move into the new flat.

13. Although the respondent wrote to the petitioner on 30th June 1992 he made no mention of an imminent move. However, when the petitioner telephoned their maid at Sutton Court from Bangkok on 3rd July, the maid told her that the respondent was about to move. In her affidavit Ms. Bird affirmed that the petitioner telephoned her from Bangkok in a state of shock and distress and informed her that the maid had just told her that the respondent planned to move to another flat on 14th July. When the petitioner arrived in Hong Kong on 5th July she and Ms Bird attempted to enter the Sutton Court flat, but found the front and rear doors and rear iron gate locked and that the front door was also secured by the internal security chain. Eventually they were able to gain entry after a member of the management office staff cut the chain.

14. On 9th July the respondent's secretary telephoned the petitioner and told her that she would take her to the new flat on the 13th July and give her the keys to it. However, on 13th July it became apparent that difficulties the following morning the respondent's the petitioner that the respondent had to hand over the keys and that the to be permitted to enter the premises. the petitioner gave instructions to her solicitors to issue the ex parte summons, notice of which was, as we have already stated, given to the respondent's solicitors. The respondent himself was then in Europe and had been there during the time that the petitioner was present in Hong Kong on this occasion. had arisen, and on secretary informed instructed her not petitioner was not Later the same day

15. We are told by Mr. Payne that because the respondent arrived in Hong Kong shortly before the adjourned hearing there was insufficient time for him to give instructions for the preparation of an affidavit in reply to that of the petitioner. He therefore requested the judge to allow the respondent to give viva voce evidence. However, the judge refused to permit him to adopt this course, and gave his reason for so ruling that the evidence had thus far been given an affidavit. Miss Mok, who appeared as junior counsel to Miss Jacqualine Leong at the hearing before this court - Miss Leong not having been present at either hearing before the judge - told us however, that this did not happen. In order to resolve this conflict we have examined the judge's record of the proceedings and are unable to find any reference to any such application having been made. Whatever the true situation was we are unable to say. If, however, the judge had refused to allow the respondent give viva voce evidence, it would then have been open to Mr. Payne to apply for a further adjournment to enable the respondent to_.file an affidavit in reply. This was not done.

16. On the evidence before him the judge found that the parties had been connected with Hong Kong since 1974, had maintained two matrimonial homes - one in Hong Kong and the other in Thailand - and that for the past two years the Hong Kong home had been the flat in Sutton Court.

17. Notwithstanding that he found that in a letter written to the petitioner on 25th December 1991 the respondent had made it clear that the matrimonial home at Sutton Court, and by implication any other home occupied in Hong Kong, could continue to be used by both parties until a formal legal separation agreement was reached, the judge concluded that since the parties had never lived together at the Queen's Garden flat those premises could not be described as the matrimonial home. He decided therefore that he could not grant the petitioner's application for an order that she be permitted to enter, remain and reside there.

18. Although the judge made no mention in his judgment of the decision in Syed v Syed [1980]1 FLR 129, we are told by counsel that he considered himself bound by it and therefore had no discretion to make the order sought.

19. In Syed v Syed French, J. held that there is no right, potentially enforceable by injunction, for a wife in every case to have a dwelling, other than the matrimonial home, made available for her by her husband, and that the court will grant an injunction only to support or protect a legal right.

20. The facts of that case were that the wife had resided with the husband only at the home of in-laws. The wife had then left for Pakistan for what she intended to be a relatively short visit, but turned out to be a period of some two years. Before, or very soon after her departure, the husband formed an attachment with another woman who became his mistress and lived with him at premises which he bought after his wife's departure. On her return from Pakistan the wife applied for an injunction against the husband requiring him to permit her to inhabit part of those premises.

In giving judgment, French, J. said at p.131:

"A wife who before decree nisi seeks the court's aid to ensure a roof over her head can of course invoke the Matrimonial Homes Act, 1967; or, alternatively, she may invoke the inherent jurisdiction of the court. The wife here does not rely on the Act, no doubt for the very good reason that 63 Horncastle Road is not, and never was, the matrimonial, home. The husband bought it while the wife was away. The only person with whom he has ever cohabited there is his mistress. When contemplating the resumption of cohabitation with his wife, his first act was to put Horncastle Road on the market. The 1967 Act provides, by s.l (8):

'This Act shall not apply to a dwelling house which has at no time been a matrimonial home of the spouses in question.'

So far as I can judge, Horncastle Road has at no time been a matrimonial home of the spouses with whom I am concerned. Accordingly, the wife is driven to invoke the inherent jurisdiction of the court. Her argument proceeds as follows: the husband has a duty to provide a roof over his wife's head. This duty gives rise to an enforceable right in the wife to have a roof provided for her. The court has jurisdiction in appropriate circumstances to enjoin the husband to provide for his wife's use the whole or part of any accommodation at his disposal.

Now, it is true that recent years have seen many advances both by statute and at common law in the rights of a wife in relation to matrimonial property in general, and a matrimonial home in particular. It is also true that in Gurasz v. Gurasz [1970] P.11, at p.16, Lord Denning, M.R. said this:

'Some features of family life are elemental in our society. One is that it is the husband's duty to provide his wife with a roof over her head.'

Though later on, immediately after the passage which I have just quoted, Lord Denning, M.R. goes on to make it clear that he is there dealing with a structure which can properly be described as a matrimonial home. I doubt whether, wide as are the words which I have just quoted, Lord Denning, M.R. intended to express the wide principle that every wife has a right, potentially enforceable by injunction, in every case to have a dwelling made available for her by her husband. I prefer to follow what seems to me to be a basic principle, that the court will grant an injunction only to support or to protect a legal right. One cannot in this case find even an implied licence by the husband for the wife to occupy 63 Horncastle Road, such an implied licence being, I would suppose, the irreducible minimum right which the court will enforce by virtue of the inherent jurisdiction."

21. We do not think that a wife's right to reside in the matrimonial home can be defeated by the husband simply terminating the lease on the premises in which the parties were residing and moving to another flat.

22. In the present case, whatever may have been the matters in dispute between the parties, it is clear from the following passage in the respondent's letter to the petitioner of 25th December 1991 that he had agreed they could both use the flat at Sutton Court and the house in Bangkok:

".....if we are really to part then I will agree to draw up a legal separation agreement but there are a few things which should be discussed before we do so. For my part:

(a)    ...

(b)    .....Certainly we can sell all our furniture (both in HK and Bangkok) and divide the proceeds if you wish but is this really the right way to go?

(c)    .....

(d)    We can both use either Sutton Court or Bangkok as places to stay until some agreement has been made."

23. We have no doubt that the words "until some agreement has been made" in (d) refer to the "legal separation agreement". No legal separation agreement has yet been drawn up.

24. Subsequently, in a letter written from the Sutton Court flat and dated 26th March 1992, the petitioner, while accepting the possibility that she and the respondent might have to go to court and that it would be on her petition, said with reference to the respondent's stated intention to leave the Sutton Court flat owing to the theft of his car:

"I have to go to Bangkok on the 27/3. Should you decide to move flat while I am away, could you let me know at least one week in advance.

Here is a list of some of the items I would like to take from 9C Sutton Court apart from my clothes."

25. Mr. Payne submitted that this passage reveals that the petitioner had made it clear that she did not wish or ' expect to move to any home in Hong Kong thereafter occupied by the respondent. We do not think, however, that the passage can fairly be said to bear that meaning. In our view it discloses nothing more than that the petitioner accepted that the respondent might move to another flat during her absence and that since she and the respondent were planning to separate this would be a convenient time to remove some of the articles that she would like to retain. We do not accept that it justifies an inference that she was signifying that she no longer intended to reside at the flat in Sutton Court until such time as the legal separation agreement was drawn up or that there had been any agreement, express or implied, between herself and the respondent that she would not share the matrimonial home when the lease to the Sutton Court flat was terminated.

26. Mr. Payne also referred us to a letter which the petitioner wrote to the respondent from the Sutton court flat on 1st June 1992 in which she revealed that she and the respondent had had a discussion on 5th May in the course of which he insisted on her leaving the flat by the following week and told her that, if she failed to do so, he would obtain a court order to evict her. She also mentioned in the letter that the respondent had sought her agrement to an understanding that she would not use the flat in Hong Kong and that he would not use the house in Bangkok.

27. In the same letter the petitioner invited the respondent to make a list of the items in the Sutton Court flat that he would like to take, or to tick on a list, which she enclosed, those items that he did not want her to take. She further requested him to send copies of his bank statements to her solicitor, and told him that as soon as her solicitor had informed her that "the result is satisfactory" she and the respondent could then come to some agreement.

28. While we accept that it clearly emerges from this letter that the petitioner was fully aware that the respondent no longer wanted the petitioner in Hong Kong as his wife, it is equaily clear that the petitioner had not agreed to release the respondent from his agreement with her that, until the formal legal separation agreement was drawn up, the parties were free to live in both the Sutton Court flat and the house in Bangkok. On the evidence before the judge, we are not satisfied that any finding that the petitioner had abandoned her right to a home in Hong Kong until matters had been sorted out would have been justified. Indeed, given the background to this marriage, we can see no reason for her to have done so. There was no evidence that she had been guilty of any conduct that would entitle him to withdraw from that agreement.

29. We do not accept Mr. Payne's contention that where, in order to move to another address, a husband, with the consent of his wife, terminates the lease on the premises which they occupy as the matrimonial home and moves to other premises, the wife has no right to enter, remain and reside in the new premises. We think that it is artificial to assert that, because the parties have never cohabited there, those premises cannot be considered to be the matrimonial home. We therefore do not agree that the judge was correct in accepting Mr. Payne's submission that he had no power to order that the respondent permit the petitioner to enter, remain and reside at the Queen's Garden flat.

30. The petitioner's right is a personal right which she has against the respondent. She was not seeking to exercise it against a third person. The case of Syed v. Syed, if it was that which formed the basis of the judge's reluctant refusal to grant the petitioner the relief she sought, is not authority for the proposition that he had no power to grant that relief. Not only was the factual situation there materially different from that disclosed on the evidence in the present case but as we have already said, the respondent clearly agreed that the petitioner could use the Hong Kong matrimonial home until a formal separation agreement was drawn up. The petitioner is therefore entitled to succeed on her cross appeal.

31. We also think that in the light of the sparse evidence of the respondent's ability to afford the petitioner's room and other charges at the Mandarin Hotel, and the fact that suitable accommodation in the form of a service flat was available at much lesser cost, the judge was not justified in ordering that the respondent be responsible for those charges until further order. Such evidence as there was regarding the respondent's means related to his assets and not to his liabilities. Whilst we commend the judge's desire to deal with this matter on an urgent basis we must caution against the adoption of a procedure whereby a court makes an order requiring a husband to pay $100,000 per month on behalf of a wife without any adequate information as to the assets, liabilities and needs of both parties. The appeal against that order must succeed.

32. Since the petitioner has now been granted the relief which she claimed and should have been granted by the. judge, we order that she have the costs of the hearing before this court and those of the hearings before the judge on 14th and 17th of July. We grant a certificate for counsel and order that the application for maintenance pending suit be heard by a judge of the District Court as a matter of urgency. By consent, the respondent is to pay to the petitioner her hotel expenses incurred from 14th July up to and including those of the night of 24th July 1992.