LYMC v. LCW

FCMC 13526 /2015

[2019] HKFC 28

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13526 OF 2015

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JUDGMENT
(Leave to appeal)

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Introduction

1.  This is yet another round of application for leave to appeal taken out by the respondent (whom I shall for convenience still call him the “husband”). I will continue to address the petitioner of this case as the “wife” in this decision.

2.  On this occasion, the husband made his application by way of 4 summonses all dated 18 December 2018 for leave to appeal various orders made by me between 2016 and 2018, in particularly seeking leave to appeal the consent order dated 23 December 2016 entailing the settlement of the parties on the ancillary relief matters reached in the FDR (financial dispute resolution) hearing of 20 December 2016.

3.  I should point out at this stage that though the settlement on the ancillary relief matters were reached during the FDR on 20 December 2016, the terms of settlement were made into a consent order on 23 December 2016 when the decree nisi was made, in order to comply with the requirement of section 25(1)(b) of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”).

4.  The 4 orders that the husband now seeks to appeal are:

(1)   An order made on 23 December 2016 whereby I ordered that the question of ancillary relief matters be adjourned forthwith to chambers (“1^st Order”);  

(2)   An order made also on 23 December 2016 whereby I made an order in orders by consent of the settlement reached by the parties during the FDR (“2^nd Order” or “AR Order”);

(3)   An order made on 4 April 2018 whereby I gave the wife the liberty to issue a writ of possession in respect of the former matrimonial home (“3^rd Order”);

(4)   An order made on 10 August 2018 whereby I ordered that several sums of money, such as the husband’s share of the mortgage payments and management fees of the former matrimonial home, be paid out of the husband’s share of the sale proceeds of the matrimonial home (“4^th Order”)

5.  As a matter of procedural history, the husband had previously filed a summons dated 16 October 2017 seeking leave to appeal my order of 29 June 2017. The said order concerns consequential directions on the implementation of the sale of the former matrimonial home pursuant to the AR Order. I handed down my decision on his leave to appeal application on 27 November 2017 (“Previous Appeal Decision”).

6.  In the Previous Appeal Decision, I have set out the background and case history of this case at §§5-19 therein, and thus I shall not repeat the same in great length here.  But briefly, the parties are in their 40s.  As claimed in their respective Form E filed in 2016, the wife was then a registered nurse by occupation earning about $50,517 per month, whereas the husband was an audit senior and claimed that his average income was about $15,000 per month.[1] There are 2 young children of the family, whose care and control rested with the wife. She moved out of the former matrimonial home to another rented property with the children in/about October 2016, while the husband continued to stay in the former matrimonial home.

7.  Additionally, I should highlight the following facts, especially those which took place after the Previous Appeal Decision, set out more particularly in the following table:

Date	Remarks
20/12/2016	FDR held and parties signed a consent summons. Broadly, the parties agreed that: (1)the former matrimonial home be sold at $8.81 million or market price to be mutually agreed on/before 21 March 2017, and its net sale proceeds be shared equally between them; (2)the husband would pay the wife a sum of $8,000 per month as children maintenance (ie $4,000 per child per month). For that purpose, he would pay a sum of $1.3 million of his share of the sale proceeds into a joint account and the parties would give joint instruction to the banker for monthly transfer of $8,000 into the wife’s sole bank account for the benefit of the children; (3)the husband would vacate from the former matrimonial home upon signing the preliminary sale and purchase agreement, or on/before 21 March 2017, whichever is the earlier; (4)the husband shall pay all the management fees, government rates and rents and utilities during his occupation in the former matrimonial home.
23/12/2016	Decree nisi was granted. The 1st Order and the AR Order were made respectively.
3/4/2017	The wife’s summons for further direction on the implementation of the AR Order, as a result of the husband’s failure to pay the mortgage payment of and his refusal to let potential purchasers to view the former matrimonial home and/or the bedrooms therein. During this period, the burden of paying the mortgage payment fell onto the wife (in order that the mortgagee bank would not call loans and apply for an order for sale), let alone that she had to shoulder all the expenses of the children.
29/6/2017	Upon hearing from both parties on the wife’s aforesaid summons, I made the following directions for the purpose of implementing the AR Order: (1)    the husband shall move out of the former matrimonial home on/before 29 August 2017; (2)    the wife shall have the conduct of sale; (3)    the husband shall sign the requisite conveyancing documents to effect the sale of the former matrimonial home within 7 days upon notice from the wife, failing which she shall be authorised to sign all the necessary conveyancing documents; (4)    the husband shall reimburse the wife of his share of mortgage payment (now shouldered by her) out of his share of the sale proceeds; (5)    all the expenses relating to the former matrimonial home after delivery of vacant possession by the husband shall be borne by the parties in equal shares; (6)    the husband shall bear the wife’s costs of this application to be summary assessed (which was later assessed by me in the sum of $15,000).
29/8/2017	Deadline for the husband to vacate from the former matrimonial home, but he had failed to do so.
16/10/2017	The husband’s summons for leave to appeal against my order of 29/6/2017, which was dismissed by me in the Previous Appeal Decision.
4/4/2018	On the wife’s ex parte application by way of her 4th, 5th and 6th affirmations, I made the 3rd Order giving the wife the liberty to issue a writ of possession for recovery of the former matrimonial home;
26/4/2018	Writ of possession was issued.
30/5/2018	The court bailiff executed the writ of possession and the wife took vacant possession of the former matrimonial home and she changed the lock thereof. However, she later discovered that the husband had changed the lock to and continued to stay in the former matrimonial home. Police was called and the husband finally left the former matrimonial home.
2/6/2018	The wife re-gained vacant possession of the former matrimonial home.
8/6/2018	The husband took out a summons for an order that he had the right to stay in the former matrimonial home. His summons was dismissed by me in the call-over hearing of 9/8/2018.
17/7/2018	The wife signed the preliminary agreement of sale and purchase to sell the former matrimonial home at $9.68 million pursuant to the AR Order and consequential implementation orders set out above. Completion was to take place on 12/9/2018.
31/7/2018	In the course of selling the former matrimonial home, the wife found out that it was encumbered caused by the husband’s indebtedness. She thus took out a summons for an order that: (1)    all the sums of moneys required to discharge the 2 encumbrances registered against the former matrimonial home at the land registry (being (i) arrears of management fees of the former matrimonial home and (ii) the husband’s credit card bills of Standard Chartered Bank) be paid out of the husband’s share of the sale proceeds;[2] (2)    the husband shall reimburse the wife from his share of the sale proceeds the following items of moneys: (i)   mortgage repayment and interest penalty that she had paid for him until the date of completion of the sale; (ii)   management fees, government rates and rent, and other miscellaneous payments that she had paid for him until the date of completion of sale; (iii)      the costs summary assessed in the sum of $15,000 pursuant to the order of 29/6/2017; (iv)       legal fees and disbursement arising out of the writ of possession in the sum of $41,790; (v)   costs of this summons in the sum of $15,000.
10/8/2018	In respect of the above summons of the wife, I made the 4th Order in terms of her summons, but I did not make any order in respect of legal fees and disbursement of the writ of possession, nor the costs of her summons.
12/9/2018	Completion of sale of the former matrimonial home.
18/12/2018	The husband filed his summons for leave to appeal against the 4 orders made by me.

Applicable legal principles

8.  Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

9.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (See: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011).

10.  On the other hand, under Order 58 rule 2(4) of the Rules of the District Court, Cap 336H, an application for leave to appeal from an interlocutory judgment, order or decision should be made within 14 days from the date of that judgment, order or decision, whereas an application for leave to appeal from a non-interlocutory judgment, order or decision should be made within 28 days from the date of that judgment, order or decision. 

11.  It is abundantly clear that the husband’s application for leave to appeal of the aforesaid 4 orders is made out of time for 4 months to almost 2 years (as the case may be).

12.  The court has a discretion to grant leave to appeal out of time. The factors for consideration are:

(1)   The length of delay;

(2)   The reason(s) for delay;

(3)   Prospect of success of the intended appeal application;

(4)   Whether the grant of leave to appeal out of time would cause prejudice to the opposite party.

(See: LSW v LMYM, HCMP 1085/2006; 黃對潘, HCMP 2749/2014)

The 1^st Order

13.  As a recap, the 1^st Order was made by me way back in December 2016. The husband’s application for leave to appeal against the 1^st Order is late for almost 2 years. This is a very serious delay, but he has not proffered any reason for such an inordinate delay.

14.  The 1^st Order is in fact a very standard procedural order made day in and day out by family judges at the time when decree nisi is granted in open court, after which the court would adjourn the children and/or ancillary relief matters to be dealt with in chambers on a date to be fixed or already fixed in previous call over hearing.

15.  From my reading of his draft grounds of appeal, the husband merely submits that I should grant leave for him to appeal out of time against the 1^st Order.  He has not provided any substantive reason(s) for why and how I erred in making the 1^st Order. There is no need for me to repeat what he has said in his grounds of appeal. Suffice it is for me to point out that he makes unfocused and irrelevant points, such as alleging the wife’s negligent behaviour in not maintaining him; his request for secured periodic payment for him (in the sum of $30,000) and for the children (in the sum of $15,000), and interim payments and attachment of income order, etc. I agree with the written submission of the wife’s solicitors that these request are incomprehensible and misconceived, in the view that it is the wife who has the care and control of the children and that the parties have already settled their spousal ancillary relief claim in the AR Order. It is thus clear that there is no substance in his grounds of appeal.

16.  There is no reasonable prospect of success in his appealing against the 1^st Order.

The 2^nd Order/AR Order

17.  The AR Order was made on 23 December 2016. The husband is almost 2 years late in making his application for leave to appeal, and he has not offered any explanation for such serious delay.

18.  It is pertinent to reiterate that the AR Order records the settlement of the parties reached in the FDR, during which the husband signed to record his agreement to the settlement terms therein in a consent summons (prepared in hand written form). By seeking leave to appeal against the AR Order, he is effectually saying that he no longer wishes to be abided by his own words. 

19.  What the husband seeks to appeal against is essentially the property sale order in respect of the former matrimonial home, because, so he says, it was his only residence where he had lived for 16 years.  Other than that, the so-called grounds of appeal advanced by him are mainly and merely repetitions of the grounds of appeal in respect of the 1^st Order. I have already given my comment on his intended appeal against the 1^st Order in §[15] above. Those comment applies equally to the AR Order.

20.  On the other hand, it is trite law that a property sale order made under section 6(1)(e) of the MPPO is not subject to variation or discharge because such an order does not fall within section 11 of the MPPO. The AR Order providing for the sale of the former matrimonial home is thus not subject to variation or discharge under section 11 of the MPPO.

21.  If a consent order, like the AR Order here, does not fall within section 11, it is well established that the court may set it aside on the following grounds:

(1)   fraud;

(2)   mistake;

(3)   non-disclosure or misrepresentation of material facts at the time the order was made;

(4)   new events have occurred since the order was made which have invalidated the basis upon which the order was made.

(See: Wong Oi Han v Sin Wai Chung [2012] 3 HKLRD 142 at §10)

22.  None of the above grounds is alleged and/or relied on by the husband in his intended appeal application. There is simply no basis for him to set aside the AR Order or the property sale order by way of an appeal.

23.  Finally, I would reiterate what I have said in the Previous Appeal Decision on the intention of the property sale order and the prejudice that may cause to the wife if the AR Order is to be set aside:

“30. More importantly, he has not lodged any appeal against the [AR Order], which is the primary order providing for the sale and sharing of the matrimonial home and which leads to the consequential directions set out in the Order (that is now under appeal). He is thus still bound by the [AR Order] under which the matrimonial home has to be sold.

31. Furthermore, one must not overlook the prejudice that would cause to the wife if his leave to appeal out of time is allowed. As a matter of fact, the wife, now acting in person in this hearing, submits that the husband is now enjoying the occupation of the matrimonial home all by himself without paying for its mortgage, let alone children maintenance. According to her Form E, her totally monthly expenses are about $59,000. She has been shouldering the mortgage repayment and all children expenses in the last 10 months, which she finds it difficult to sustain without affecting the children’s status quo arrangement and in the result, she has to cut their tutorial and interest classes. She complaints that the husband is merely employing a delaying tactic to vacate from and sell the matrimonial home.

32. It must be remembered that the intention of selling the matrimonial home is not only for asset distribution, but also for the husband, who claims that he has difficulty in making financial provision for his own children, to realise sufficient funds for children maintenance way forward. In my view, to grant leave to appeal out of time would further delay the achievement of this intention which in turn is not in the best interest of the children of the family. To safeguard the best interest of the children of the family is the paramount duty of the family court.”

24.  Due to the matters aforesaid, I cannot see any reasonable prospect of success lies in the intended appeal of the husband regarding the AR Order.

The 3^rd Order

25.  On 4 April 2018, I made the 3^rd Order that the wife be at liberty to issue a writ of possession for the recovery of possession of the former matrimonial home. The circumstances leading to the making of this order can be referred to the table of relevant chronology in §[7] of this decision. Briefly, the husband failed to comply with the court order to deliver vacant possession of the former matrimonial home to the wife for the purpose of implementing the AR Order to sell the same.

26.  His application for leave to appeal is made late for about 8 months, with no explanation provided for such delay.

27.  The draft grounds of appeal contain very similar content of those of the 1^st Order. I shall adopt what I have said in §[15] of this decision. He also refers to an intended appeal of the order made on 12 October 2018 by another deputy family judge, which is not the subject of appeal in this decision.

28.  Simply put, there is no substance in his draft grounds of appeal and thus no reasonable prospect of success.

The 4^th Order

29.  The 4^th Order was made on 10 August 2018 on the wife’s application. The husband is late for almost 4 months in taking out the leave to appeal application. Again, he offers no explanation of his delay.

30.  As a recap, in the course of the sale of the former matrimonial home, it was found out that 2 encumbrances were registered against the former matrimonial home at the land registry:

(1)   A memorandum of charge dated 13 September 2017 and registered by the manager of the former matrimonial home, as a result of the husband’s failure to pay for the management fees then in the sum of $2,951;

(2)   A charging order absolute dated 8 March 2018 and registered by Standard Chartered Bank, the husband’s banker, in respect of outstanding credit card bills then in the sum of $141,111.22 with interest and costs.

31.  In the hearing of 10 August 2018 when the 4^th Order was made, the husband did not dispute that the aforesaid encumbrances were caused by his own indebtedness. As a matter of fact, under the AR Order, he has agreed to pay for the management fees of the former matrimonial home while he was in possession thereof. There is thus every reason that he should be held fully responsible of his own debts out of his entitlement of the net sale proceeds of the former matrimonial home.

32.  His draft grounds of appeal in respect of the 4^th Order are very similar to those relating to the 1^st Order. I reiterate what I have said in §[15] in the earlier part of this decision.

33.  In view of the above, I cannot see the husband would have any reasonable prospect of success in his intended appeal of the 4^th Order, and thus leave to appeal out of time should not be granted to him.

Leave refused

34.  Due to the matters set out above, I conclude that the husband’s application for leave to appeal against the said 4 orders is made belatedly without any explanation. There is no prospect of success in any of this intended appeal. I shall therefore order that the husband’s 4 summonses all dated 18 December 2018 for leave to appeal out of time are dismissed.

Costs

35.  It is clear that the wife is the winning party of these applications. I see no reason why costs should not follow the event. The husband should bear the costs of the wife.

36.  The wife, by her written submission, asks for costs on an indemnity basis and be paid out of the husband’s share of the net sale proceeds of the former matrimonial home.[3] It is her submission that the unreasonable conduct of the husband since the AR Order by taking out numerous meritless applications and delaying the implementation of various court orders/directions have already caused prejudice and damages to the wife. For example, she had to instruct to represent her to deal with those complicated matters including these leave to appeal applications; she had to take leave from work to attend court hearings.

37.  In my view, the costs order to be made in this decision should be confined to the husband’s leave to appeal applications. Although he was not cooperative in delivering vacant possession pursuant to previous court order, a costs order in favour of the wife for issuing the writ of possession was already made on 12 October 2018.  There is a risk of double-penalising him if I am to make a costs order on indemnity basis. In all the circumstances of the case, I hold the view that he should pay the wife’s costs on party and party basis.

38.  The wife’s solicitors have requested for summary assessment of costs. I agree that this is an appropriate case for summary assessment of costs. I also agree that such costs should be paid out of the husband’s share of the net sale proceeds. Her solicitors have prepared 4 separate statements of costs for my consideration. In fact, they have prepared 4 separate written submissions on each of the orders that the husband seeks to appeal, albeit that most of the content of the draft grounds of appeal of the 4 orders is very similar, if not the same.

39.  Be that as it may, I do not have information if the husband has received their statements of costs, to which he should be given a chance to respond. 

40.  Hence, on costs, I shall make the following order/directions:

(1)   The husband shall bear the wife’s costs of these leave to appeal applications on party and party basis to be summary assessed; such costs shall be paid out of the husband’s share of the net sale proceeds of the former matrimonial home;

(2)   In the case that the wife’s statements of costs have not been served on the husband, the same shall be served within 7 days from the date of this decision.  An affirmation of service shall be filed forthwith upon service;

(3)   In the case that the wife’s statements of costs have already been served on the husband, an affirmation of service shall be filed forthwith;

(4)   The husband shall lodge with this court and serve on the wife his written response to the wife’s statements of costs within 28 days from the date of this decision, failing which he shall be deemed to have no response to the statements of costs.