WHY v. SCL

FCMC 17308 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 17308 OF 2010

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J U D G M E N T
(Variation of Maintenance)

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Background

1.  The Petitioner is the Wife (“W”).  The Respondent is the Husband (“H”).  This is the application by H for variation of a Consent Order dated 10 August 2011 (“the Consent Order”). 

2.  The parties married on 18 June 2007.  Two days prior to the marriage (i.e. 16 June 2007), the parties entered into a Pre-Nuptial Agreement prepared by lawyers and executed by the parties in the lawyers’ presence. 

3.  H is now aged 45 and the W is now aged 33.  There is one child born out of the marriage who is now at the age of 6.

4.  Since 31 March 2009, the parties separated.  On 31 December 2010 a Petition for divorce relying upon “One Year Separation and Consent” was filed by W.  The Decree Nisi was granted on 4 July 2011.  

5.  On 10 August 2011, the Consent Order was granted whereby the W has the custody, care and control of the child and H has reasonable access.  Further, financial provisions were agreed between the parties and embodied under paragraphs 4, 5 and 6 of the Consent Order which I now recite as follows :-

“4. The Respondent do pay to the Petitioner at a rate of HK$10,000.00 per month by way of direct debit to the Petitioner’s bank account that the Petitioner may direct from time to time commencing from the date of Decree Nisi and thereafter on the 1^st day of each and subsequent month being the periodic payment of maintenance for the Child of the Family, until the Child of the Family cease full-time education, or until the Child of the Family attends the age of 21, whichever is the later or until any further Court Order;

5. The Respondent do pay to the Petitioner at a rate of HK$4,000.00 per month by way of direct debit to the Petitioner’s bank account that the Petitioner may direct from time to time commencing from the date of Decree Nisi and thereafter on the 1^st day of each and subsequent month being the periodic payment of maintenance for the Petitioner, until the Child of the Family cease full-time education, or until the Child of the Family attends the age of 21, whichever is the later or until any further Court

Order;

6. The Respondent do pay to the Petitioner a lump sum of HK$170,070.00 by 60 equal monthly instalments each at HK$2,834.50 by way of direct debit to the Petitioner’s bank account that the Petitioner may direct from time to time commencing from the date of Decree Nisi and thereafter on the 1^st day of each and subsequent month.”

6.   The Consent Order was amended on 3 May 2012 to include usual provisions on removal restrictions of the child which does not concern the present application by H. The Decree Nisi was made final and absolute on 28 May 2012.

7.  On 27 November 2012, H issued the present Summons for variation of the Consent Order seeking, inter alia, the following :-

“1. Paragraphs 4, 5 and 6 of the Order dated 10^th August 2011 made by Deputy District Judge George Own be varied to the extent that this Honourable Court sees fit;

2. …………

3. …………”

The Husband’s Case for Variation

8.  H filed his Affirmation dated 27 November 2012 in support of his application for variation.  H’s grounds of application rest upon a 2-fold contention.   The first contention was that the Consent Summons was entered into under oppression or duress by W or undue influence coerced upon him by W’s legal representatives who prepared the Consent Summons. The second contention was that his financial situation had deteriorated since the signing of the Consent Summons in 2011 when he had envisaged the economy would become better and that his business would make profit in 2012.    

9.  H at paragraph 3 of his Affirmation referred to an agreement having been reached with W on the term of divorce on 1 July 2010 prior to the Consent Order in August 2011.   He produced as an exhibit “SCL-2” a Chinese written agreement signed him and W.  H at paragraphs 3 and 4 of his Affirmation then referred to W repeatedly called him around June 2011 requesting him to sign the Consent Summons leading to the present Consent Order.  W emphasized to him that she would go to the Police to re-open an investigation of a prospective earlier criminal case him.  He alleged that he felt oppressed and had no choice other than to sign the Consent Summons which W repeatedly requested. 

10.  H at paragraph 5 of his Affirmation referred to one “Mr. Gary Chin” as the handling solicitor for W who had advised him that the terms of the Pre-Nuptial Agreement signed in 2008 are more onerous than the terms of the Consent Summons that he was asked to sign. 

11.  At paragraphs 6 to 10 of his Affirmation, H referred to his latest financial situation had already materially worsened to the extent that he is even unable to pay off his liabilities.  He produced as an exhibit “SCL-7” a summary of his financial portfolio and some other documents.

12.  On the extent of variation, H in his Answers (attached to his Form E filed on 2 May 2013) to W’s submission sought variation as follows :-

“(ii) The Respondent do pay the Petitioner at a rate of HK$6,000 per month by way of direct debit to the Petitioner’s bank account.

(iii) The Respondent do pay the Petitioner at a rate of HK$1,500 per month by way of direct debit to the Petitioner’s bank account.

(iv) The Respondent do pay the Petitioner at a lump sum of HK$90,000 by 60 equal monthly instalment each at $1,500 by way of direct debit to the Petitioner’s bank account.”

The Wife’s Case

13.  W had not sought any variation of the Consent Order but opposed to H’s variation.  Suffice to say at this stage is that W had issued a Judgment Summons on 5 January 2012, which is prior to H’s present application for variation and with a returnable date on 25 April 2012 as a ‘call-over’ hearing.  The Judgment Summons was initially scheduled for trial on 28 November 2012 which has been adjourned, as a result of H’s ‘last minute’ application the day before on 27 November, on various undertakings and terms pending determination of H’s variation.

14.  W contended H had not been full and frank in his financial disclosure in this application for variation.

The Law

15.  The jurisdiction of the Court in an application for variation of maintenance orders is under section 11 (7) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) which provides :

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates……..

16.  Our section 11 of the MPPO Cap.192 is modeled upon section 31 of the UK Matrimonial Causes Act 1973 (replacing section 25 of the UK Matrimonial Proceedings and Property Act 1970). 

17.  In considering a change of circumstances, the court may look at the case de novo.  In other words, the court is not fettered by the existence of a previous order.  Thus, the court may look at the overall situation afresh and make an order based on the parties’ existing financial circumstances and needs.[1]  The court has a broad discretion in applications relating to variation.[2] However, in so doing, the court should also bear in mind that an application to vary the terms of a settlement embodied in a consent order are not to be lightly entertained unless the party seeking to disturb the same can show good and substantial cause.[3] In the case of L v. C[4] where Stock JA had said :

“The courts must be astute in this field to guard against the manipulative litigant who seeks to undo an agreement……and to bear in mind the factors, quite clear now as a result of developed authority, which might go to vitiate such agreement……”

18.  In the case of HCTT v. TYYC[5], Mr. Justice Lam agreeing with the judgment of Hon Tang VP in the case, had said :

“43. I hasten to add that the courts in the family jurisdiction must be equally astute to guard against unmeritorious applications for variation by litigants who have second thoughts about settlements they have knowingly reached on their own volition.

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45. Further, in many instances, one or both parties are acting in person. Lack of legal representation should not be regarded as a vitiating factor in an ordinary sense.

46. Therefore it would go against the modern ethos of family dispute management if the court were to entertain lightly an application to vary the terms of a settlement embodied in a consent order.

47. I think the following approach suggested by Stock JA at para 42 of L v. C [2007] 3HKLRD 819 at p.841, with slight modifications, can equally serve as a good guidance for deciding whether an application for variation of periodical payments in a consent order should be entertained,

“an agreement [on periodical payments] is ‘presumptively [not to be varied without material change of circumstances]’, the burden being on the party seeking to achieve a different [terms] to show good and substantial cause why the compact should not be respected, and ….. the scope for so doing is one directed at an injustice in the circumstances in which the agreement came to be concluded or in clear injustice occasioned to one of the parties by reason of event unforeseen at the time of the agreement were the agreement to be enforced to its letter."

19.  As for lump sum, it is trite law that the Court’s power to order a lump sum (including lump sum payable by instalments) can only be exercised once (see de Lasala v. de Lasala). [6]  Further, the Courts have jurisdiction to vary orders made by consent.  Section 11 does not impose any restrictions on variation of consent orders (see G v. G). [7] However, the jurisdiction to vary lump sum order payable by instalments must be exercised with caution. 

20.  In the case of Tilley v. Tilley [8] where the wife successfully applied for variation to waive one of the instalments of a lump sum under a consent order payable to the husband on the basis that she could not pay the husband without selling the home where she and the children were then living, Ormrod LJ had said :

“……it was very undesirable to create the impression that orders for lump sum payments by instalments could be readily, or were likely to be easily, varied on change of circumstances. Parliament had given the court full jurisdiction to do it but it was to be borne in mind that people relied on these things being carried out. It should be plainly bornein mind that the husband had a continuing obligation to the children which offset the consent order and, had there not been that continuing liability for these children, and had the execution of this agreement not inevitably been going to lead to the dispossession of the children from their home, the result of the case might have been very different. That was the right approach of the court in this case.”

21.  In the English Court of Appeal case of Westbury v. Sampson [9], Bodley J had said at paragraph 58 of the Judgment :

“The re-opening under s 31 of the overall quantum of lump sum orders by instalments, especially when made as part of a package intended to be final (and all the more so when ordered by consent following an agreement) should only be countenanced when the anticipated circumstances have changed very significantly, and/or for cogent reasons rendering it quite unjust or impracticable to hold the payer to the overall quantum of the order originally made.”

22.  With these authorities in mind, I will now consider H’s application.

The issues

23.  The first issue is whether H can prove, on balance of probabilities, that he was under duress or oppression or subject to undue influence when he signed the Consent Summons.   The burden is on H to prove his allegation.  Had he been able to do so, the Consent Order would have to be set aside and his second contention of change of financial circumstances since signing the Consent Summons will fall out of consideration.   The second contention only becomes a live issue if he lost on the first contention and he had to adhere strictly to the Consent Order.

Witnesses

24.  H arranged three witnesses, namely, RW-1 Mr. Hung (an accounting consultant), RW-2 Mr. Choy (H’s assistant) and RW-3 Madam Cheung (H’s Mother).  W arranged one witness, namely, PW-1 Mr. Lui (a solicitor) who was then a trainee solicitor when handling the Consent Summons for H to sign.

Analysis and Discussion

(a) Was H subject to any duress, oppression or undue influence ?

25.  Around summer of 2011, he had been in telephone contact with PW1 Mr. Lui for 6 to 7 times and met with each other on about 2 occasions.  He recalled once inside the Pacific Coffee in a commercial complex near Sheung Wan MTR station and the other occasion inside the Wing On Department Store also in the same vicinity.  He could not recall who proposed the places of meeting but it was because both locations are close to Mr. Lui’s office. 

26.  He said Mr. Lui was nice to him and had analysed and compared for him the terms of the Pre-Nuptial Agreement and the Consent Summons.  He was reminded by Mr. Lui in particular about the 8% inflation factor for W within the Pre-Nuptial Agreement which does not so contain in the Consent Summons.  Mr. Lui also explained to him that since he had already signed the Pre-Nuptial Agreement, he would need to take up responsibility anyway for maintenance.  He noted such explanation and also knew Mr. Lui was representing W.  Being asked by this Court, H said he himself had not actually done any calculation on figures or comparison between the amount payable on the Pre-Nuptial Agreement and the Consent Summons.  The reason given was that he always had in mind his child’s maintenance and needs as a priority. 

27.  H also claimed that during this time W herself also made about 13 telephone calls to him claiming to re-open an earlier police investigation which was made against him if he did not agree to the terms of the Consent Summons.  He agreed the earlier investigation was an assault case over W which occurred in 2009, some 18 months ago, which police investigation had been completed without any criminal prosecution.  Despite the investigation had been closed and the lapse of time, he thought the investigation might be re-opened if W had further evidence for the police.  Again being asked by this Court, he said he was concerned about the trouble of reporting to police from time to time and possibly not allowed to leave Hong Kong if investigation re-opens although he was not admitting to any assault to W.  

28.  Both Mr. Lui and W had given their evidence in reply to H’s allegation and subject to cross examination.   Mr. Lui agreed there were nearly about 10 times of telephone contacts with H around the time of  signing of the Consent Summons.  He recalled having met H for 3 times at different areas twice near Sheung Wan MTR and once in Central.  He could not recall precisely the contents of those contacts but was able to say he was instructed by his then superior Mr. Chin to contact H on passing over W’s instructions on the amount of maintenance.  There was at least once that W’s proposed maintenance figure was rejected by H during those contacts.   When being put by H in cross examination, Mr. Lui positively denied of himself having made any bargain with H on W’s maintenance amount.  Mr. Lui also, during cross examination by H, confirmed he had no recollection that he had ever mentioned about the Pre-Nuptial Agreement or made any comparison between the amount payable under the Pre-Nuptial Agreement and the Consent Summons.  Mr Lui maintained the contacts he made with H was under instructions of his superior Mr. Chin. 

29.  W in her testimonies positively denied having made any ‘threats’ of re-opening the earlier criminal investigation if H did not sign the Consent Summons.   She also did not admit having made about 13 calls to H.  As rightly stated in Counsel Mr. Wong’s closing submission, H had not put his case of ‘threats’ to W during cross examination upon W’s denial. 

30.  In my decision, Mr. Lui’s evidence is credible.  First, it is understandable that he could not recall every single detail of contact with H back in July 2011 (over 2 years ago from now). Secondly, his  credibility has not been undermined by H’s cross examination and I find Mr. Lui is a honest witness. 

31.  W’s evidence in reply to H’s allegation of duress and oppression, in my finding and decision, has not been undermined by H either.   H had not produced any evidence of telephone records that W had made about 13 telephone calls to him around the time of the Consent Summons.  I accept W’s evidence on the issue of telephone calls.  Had I been wrong in that W did call him about 13 times at the time of the Consent Summons and ‘threatens’ to re-open the earlier criminal investigation, why would H continue to pick and answer W’s calls if he felt being oppressed or coerced by W over those telephone calls ?  H had not given any explanation on this.   Moreover, H explanation of fear is plainly unsustainable for the conclusion of the police investigation and the lapse of time of 18 months between 2009 and July 2011.  On all probabilities, I find H not being oppressed or coerced by W even if I am wrong on the finding of W’s calling H. 

32.  On the other hand, I have reminded myself that H has to prove his first contention of duress, oppression and undue influence.  It is not for W to show the negative.  Considering H’s background, H is a well educated person who received his Master Degree with major in accounting at the Temple University in the United States in 1983 to 1984.  He was a candidate for a Ph. D degree.  He started his business around 1993-94.  H has had experience in financing and investment over equities and options though he admitted not having obtained the licence issued by the Securities and Futures Commission (“SFC”).  Moreover, it is undisputed that his business activities also involve offering training lessons to potential or would-be investors in the securities market.  During the trial, a CD disc was played showing H introduced to members about his investment training course by the name “七漩斬”.   

33.  With his academic background and work experience, I am not convinced that H is those kind of persons easily subjected to duress or oppression.  Further, I am also not convinced that he would not consider or compare carefully and seriously the terms of the Consent Summons and the Pre-Nuptial Agreement but simply concur with Mr. Lui’s analysis (which I made no finding of Mr. Lui having so analysed to H) as H now stated in his case before signing it.  This is, on balance or probabilities, incredible.  Furthermore, his explanation of having the child’s best interest in mind as priority is neither here nor there.   In my view, he is actually conflicting upon himself. Reason being that on one hand he alleged he was ‘misled’ by Mr. Lui’s analysis that the terms of Consent Summons are more favourable to him than the Pre-Nuptial Agreement.  In that case, why he did not adhere to the more ‘unfavourable’ Pre-Nuptial Agreement in order to give better benefits to the child ?  In the Pre-Nuptial Agreement, the inflation factor for the child is 10% which is higher than the 8% for W.   I find H is providing an excuse rather than an explanation. 

34.  I find H’s first contention of the signing of the Consent Summons under duress, oppression or undue influence fails.   

35.  Now I will deal with H’s second contention.

(b) Was there any change in financial circumstances of H ?

(i) H’s material non-disclosure ?

36.  Again, it is for H to prove by evidence.  At paragraph 6 of his supporting Affirmation, H deposed to his financial situation was already difficult at the time of the Consent Summons.  He envisaged economy would become better and his business would make profit in 2012.  This had not materialized. 

37.  At paragraphs 7 and 8 of his supporting Affirmation, H deposed to his source of income.  He was a salaried director of Framing Success Enterprises Limited (hereinafter called “FSE”) and One on One Enterprises Limited (hereinafter called “OOE”) earning a monthly salary of HK$10,000 and HK$15,000 respectively.   Besides, he also received housing benefits of HK$12,800 a month. 

38.  At the same paragraph 8, he also deposed he was the sole director of Hong Kong Game Theory Association Limited (“HKGT”) which company has had financial loss (before taxation) to the extent of HK$207,328.00 for the year ended 31 December 2010 and adjusted loss (before loss brought forward) of HK$227,445.00 for the year 2011.   Reports and Audited Financial Statements and Profits Tax Returns are produced as exhibits. 

39.  Following the filing of the present application for variation, H filed his 3^rd Form E on 2 May 2013 in this case.   Prior to the present application, H filed two previous Form Es on 20 April 2011 and 9 June 2012.   H was said not have been full and frank in his disclosure if one is to compare his 2^nd and 3^rd Form Es.   It is noted that H in his 3^rd Form E disclosed few more companies where he was a shareholder or director which had not appeared anywhere in his 2^nd Form E.  Nevertheless, it is W’s case that H’s disclosure is still short of full and frank.  Counsel for W, Mr. Timothy Wong, carried out extensive cross examination over H’s financial documents disclosed, his Form Es and his testimonies in Court.  H was also subjected to cross examination on his credit card spending and payment records. 

40.  H as the sole director of HKGT and according to the audited financial statements for 2009 and 2010, the director’s remuneration are respectively HK$220,000 and HK$279,000.   These incomes have not been reported in his Tax Returns 2009/2010 to the Inland Revenue Department.  The answer provided by H was that the information contained might be inaccurate.  Reference was also made to the internal financial statements of income of HKGT for the year 2011 and 2012 disclosed in H’s own Bundle at pages 388 to 390 and pages 393 to 395 respectively.  It is noted that HKGT had recorded net income of HK$208,687 and HK$182,446.  Again, such income had not been disclosed in H’s supporting Affirmation.  Furthermore, Counsel Mr. Wong in cross examination referred H to the revenues of HKGT at page 389 (for the year 2011) and page 394 (for the year 2012) where there was an increase from 1.6 million to 2.7 million representing over 50% increase.  H in reply agreed to be the case and explained there having a new product which accounted for the revenue increase.

41.  W’s other challenge on disclosure relates to 2 sums of HK$674,099 and HK$537,396 in the balance sheet of HKGT as at 31 December 2010 being liabilities of HKGT owing to H (as director) for 2009 and 2010 not been explained or accounted for anywhere in H’s Affirmation or Form Es.  I find W’s challenge justified.

42.  Besides, it is undisputed HKGT was in some kind of ‘joint venture’ with some outsiders over investment in the public market.  Such activities would involve the outsider to invest funds for HKGT to trade on a profit sharing basis. There have not been any disclosure on whether such ‘joint venture’ activities had accumulated income for HKGT or for H save and except H’s bare allegation of no profitable income but rather there were legal suits in the Small Claims Tribunal for refund.  The only disclosure is some shareholders’ agreement at pages 528 to 536 of Trial Bundle B.   H’s second witness RW-2 Mr. Choy, his assistant, had attempted to give verbal evidence on these activities.  However, I find Mr. Choy’s evidence unreliable and lack impartiality.  I accept W’s challenge on this issue there being non disclosure.

43.  It was also suggested by W that H had been secretive in disclosing a BVI incorporated entity under the name “Mango BVI” which having a name akin to the Mango Information Technology (Group) Company (hereinafter called “MIT”), an unincorporated business under the umbrella of HKGT as can be seen in the business registration record at page 1071 of Bundle D.  H had chosen to disclose in his 3^rd Form E that HKGT a.k.a. (i.e. also known as) MIT.  H in his evidence in chief said MIT took over the business of HKGT around end of June 2012.  However, there had been 3 occasions of dishonoured cheques resulting MIT’s bank account with Hang Seng Bank was closed by the bank.  During cross examination, H referred to “Mango BVI” bank account at page 1070 of Bundle D which shows the account holder is MIT.  In the absence of further evidence, this Court is not in any position to find the existence of the entity of “Mango BVI”.  

44.  Considering the above, I agree with Counsel Mr. Wong that H had not been full and frank on his disclosure.  Such finding would no doubt affect H’s case of variation by proving his financial circumstances had actually deteriorated after the signing of the Consent Summons.  

(ii) 25% shareholding in HKGT?

45.  H when being cross examined upon his 3^rd Form E admitted he sold 25% share holding in HKGT to one Mr. Sze in the PRC in 2012 for a consideration of HK$ 1 million.  He first testified the consideration was in the form of a cheque payable to HKGT but, upon further question by Counsel Mr. Wong, H attempted to say the transaction was actually in some form of a ‘loan’ that there are monthly payments to the buyer Mr. Sze.  It was suggested by Counsel to H that he was simply telling lies.

46.  On the evidence disclosed, there are no transaction records such as Sold and Bought notes or Instrument of Transfer nor was there any cheque copy produced.  I do not believe H’s testimony on this topic to be true.

(iii) H’s loan from his mother (i.e. RW-3 Madam Cheung)

47.  The only evidence to support H’s case of his HK$200,000 loan due to his mother comes from his mother Madam Cheung herself.  However, upon considering Madam Cheung’s testimonies in Court, I agree with Counsel Mr. Wong in his written closing submission that this witness’s being too forgetful and imprecise for any finding of the alleged loan existed, or had ever existed.

48.  I do not accept the evidence of RW-3 Madam Cheung.

(iv) Evidence of RW-1 Mr. Hung, the accounting consultant

49.  It came as a surprise that H arranged this witness to give evidence.  First of all, this witness had not produced any witness statement and his attendance as a witness was only requested by H at a rather late stage.  H in his own Bundle of documents produced a letter dated 1 July 2013 (at page 23 of H’s Bundle) signed by this witness.  This witness is not a chartered professional accountant (CPA) and, more importantly, not the auditor handling the accounts of HKGT. During cross examination, it transpired that he was contacted by H only about a month ago and was given just the 2 sheets of paper, namely, the income statement for 2011 and 2012 (at pages 388 and 393 of H’s Bundle) by H about 10 odd days ago. This witness was asked by H to issue the letter of 1 July 2013 without even knowing that his letter will be produced and used at Court for litigation. This is extremely unfair to the witness.

50.  Moreover, upon cross examination, Mr. Hung confirmed that he had not had the chance of auditing the figures and information contained in the 2 sheets of financial statement.  He agreed he had relied upon all the data and information provided by H and his assistant Jason (that is RW-2 Mr. Choy) when he issued the letter.  In essence, he was being asked by H to give evidence of what is essentially or principally hearsay by nature.

51.  It is noted that H had attempted to “rescue” Mr. Hung’s testimonies during re-examination stage which was objected by Counsel and not allowed by this Court.  H then had no further re-examination questions.

52.  Accordingly, I find this witness’s evidence has no evidential value to assist H’s case. 

(v) H’s spending and repayment as revealed by his credit card statements

53.  Reference was made to various overseas transactions recorded in H’s credit card statements with Wing Hang Bank Limited (at pages 208, 212 and 218 of H’s Bundle) and Hang Seng Bank Limited (at page 92 of H’s Bundle).  Under cross examination, H admitted that he had travelled to Japan twice in August and October 2012.  By that time the business of HKGT was not good.  H testified the reason for visiting Japan was to try and explore some kind of garment business as he had friends in the PRC who had traded clothing on line.  He also travelled to France in November 2012.  For the trip to France, he had spent large sums on purchase of brand named merchandise as follows (at page 92 and 208 of H’s Bundle) :-

Date	Merchandise	Value in HKD
24 Nov 2012	Louis Vuitton	$2,528.48
24 Nov 2012	Gal. Lafayette	$18,249.87
24 Nov 2012	Louis Vuitton	$8,819.10
24 Nov 2012	Chanel 105	$23,959.34
24 Nov 2012	Louis Vuitton	$3.405.32
24 Nov 2012	Verotrade	$2,247.39

54.  The answer provided by H for purchasing these brand named merchandise was for onward sale on line in Hong Kong for profits and to test the market.  As rightly submitted by Counsel in his closing submission, H’s explanation is nothing but nonsense as clearly the costs of trip would not justify the profit which H alleged to be HK$2,000 to HK$3,000 per bag.  I do not believe H’s explanation and find the trip to France was more likely than not a pleasure and shopping trip.   As to the 2 trips to Japan, I do not accept H’s explanation and also find it was a trip for pleasure.   I would also add that with the popularity of on line shopping and delivery service, it is unbelievable for H to have to fly thousands of miles to get the bags to Hong Kong himself and then advertise them on line for sale for profit. 

55.  Furthermore, it was noted that H travelled to Taiwan December 2012.  H admitted under cross examination this was a pleasure trip.

56.  It is also noted H had spent 2 sums of HK$5,000 and HK$18,000 towards advertisement charges to HK Economic Times and Sharp Daily Limited on 1^st and 13^th November 2012 respectively.  Even in the months of February and April 2013, there were 2 sums of HK$5,000 each (i.e. total HK$10,000) to HK Economic Times (at pages 199 and 201 of H’s Bundle).  Upon cross examination, H admitted all these advertisements relate to his business on investment seminars.   On balance of probabilities, I do not believe H’s testimony that the business of HKGT was not good and he had to explore other business opportunities overseas.  If that was the case, it is extremely odd for him to spend as much as HK$33,000 advertising fees within 6 months (from November 2012 to April 2013) during such period he also travelled twice to Japan, once to France and once to Taiwan separately.   Quite contrary, I find H’s business of HKGT was not unsound which H is now claiming.

57.  Upon cross examination, H agreed most of his credit cards spending would be fully settled and can be seen in H’s Bundle (at page 94 payment of HK$49,600; at page 97 payment of HK$29,150.28; at page 98 payment of HK$39,126.06; and page HK$12,502.42). Such mode of repayment readily implies H was not short of cash flow.

Conclusion

58.  Applying the law and authorities cited above to all the circumstances of the case, I am not satisfied that H has successfully proved that there has been a material change of circumstances since the signing of the Consent Summons which entitle him to now seek a downward adjustment of any of the payments under the Consent Order.

59.  Accordingly, H’s Summons for variation of the Consent Order is dismissed with costs. I also grant Certificate for Counsel.

Judgment Summons

60.  The Judgment Summons issued by W dated 5 January 2012 is now fixed for trial on 14 March 2014 at 10:30 a.m. with one day reserved.

Order

61.  My Order is as follows :-

(a)  H’s (the Respondent’s) Summons dated 27 November 2012 be dismissed with costs to W (the Petitioner), to be taxed if not agreed;

(b)  There be Certificate for Counsel;

(c)  W’s (Petitioner’s) Judgment Summons dated 5 January 2012 be fixed for trial on 14 March 2014 at 10:30 a.m. with one day reserved; and

(d)  Both parties attend the trial of the Judgment Summons.