SUZANNE RUTH HENDERSON v. SCOTT HENDERSON

HCMP 2796/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2796OF 2014

(ON AN INTENDED APPEAL FROM HCMP NO. 1780 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for leave to appeal against the decision of Au-Yeung J of 27 August 2014. By that decision, the learned judge ordered an amendment of an earlier order made by Deputy High Court Judge Hartmann of 4 October 2013 by way of a stop-gap measure. As explained by Au-Yeung J in paragraphs 34 to 36 of her judgment of 27 August 2014 (and repeated in paragraphs 15 to 17 of her judgment of 23 October 2014), the stop-gap measure only meant to last within the short time frame during which parties should agree on a mechanism for the fulfilment of the payment obligation to the Family Responsibility Office in Ontario [“the FRO”] before the balance of the salaries or incomes were to be released to the defendant.

2.  The defendant sought leave to appeal from the judge.  Leave was refused by her on 23 October 2014.

3.  The defendant now applies to this court for leave to appeal.

4.  Five grounds of appeal are set out in the draft Notice of Appeal attached to the defendant’s summons of 4 November 2014.  They are essentially the same grounds canvassed before the judge at the hearing in which leave was refused. 

5.  We agree with the judge that the intended appeal is utterly without merits.  The judge had correctly identified the intention of Deputy Judge Hartmann, see paragraph 43 of her judgment of 27 August 2014.  The stop-gap measure was imposed by the judge to give effect to the manifested intention of Deputy Judge Hartmann, viz to secure payments to the FRO before the balance of the income is released to the defendant.  The defendant had taken advantage from the ambiguous drafting of the order by his solicitors and the judge was perfectly entitled in such circumstances in remedying the wrongful exploitation of such loose drafting (not giving adequate and full effect to the intention of Deputy Judge Hartmann).  Had the defendant observed the judge’s order in coming up with the requisite mechanism in co-operation with the plaintiff, the stop-gap measure would have ceased to apply a long time ago.  He only had himself to be blamed for the delay in this regard.

6.  Once this is appreciated, it can readily be seen that grounds 1 to 3 have no merit.

7.  Further, the refusal of the registration by the Registrar in the District Court cannot give rise to any viable challenge to this stop-gap measure.  Putting aside the correctness of that refusal (which is the subject of a challenge by way of judicial review and it will be heard on 16 February 2015), it cannot be denied that the Mareva injunction as varied by Deputy Judge Hartmann is still in place.  Until that injunction is discharged, the judge was entitled to remedy the defect in the loose drafting in the original order by ordering the stop-gap measure.

8.  For the reasons given by the judge, the reference to the provident fund as an asset for the purpose of satisfying the limit of the Mareva injunction is disingenuous.  Thus, grounds 4 to 5 are unarguable.

9.  On 26 January 2015, the defendant, without leave of the court, filed an affidavit.  He did not explain why he put in such affidavit at such a late stage given that his summons had already been filed on 4 November 2014.  In that affidavit, instead of bringing attention of this court to factual matters related to the grounds of appeal in his draft Notice of Appeal, the defendant referred to the fact that the District Court Registrar had refused to register the Ontario orders.  In addition, he alleged that the plaintiff had given false evidence and was guilty of perjury.  He referred to some statements allegedly made by the plaintiff in the court in Arizona where she apparently also sought to enforce the Ontario orders.  At the end of that affidavit, he raised the following points:

“ (1) “How can the January 15, 2009 Ontario Order be considered enforceable in Hong Kong when the Order is not registered in Hong Kong and NO application was made to register the Ontario Order in Hong Kong by the proper authority until 10 December 2013?”

(2) “It was determined by the Registrar of the High Court on 24 June 2014 that I do NOT reside in Hong Kong and decided not to register the said maintenance orders?” All 10 Ontario orders were returned to Ontario.  There is NO order pending registration in Hong Kong.

(3) “If the judgment of the court was entered without jurisdiction, i.e. the order not registered in Hong Kong, is the order enforceable?”  The application for the Mareva Injunction was based on the pending registration of the Ontario Order date 15 January 2009 as stated by the Plaintiff as recently as her 5^th Affirmation dated 9 July 2014.  This application to register the order was not made until 10 December 2013 and returned on 24 June 2014.

(4) The Order is registered and enforced in Arizona where I reside full time with my wife.  There is NO application to register the Ontario Order before the High Court of the Special Administrative Region of Hong Kong.

(5) Hong Kong does not have jurisdiction over the Ontario order therefore the Mareva and enforcement has no legal grounds.

(6) The damages caused against me are severe.  I have defaulted on my US Federal and State income tax.  I will most likely have my home repossessed by the IRS and the bank, as I am unable to pay my taxes and mortgage.

(7) I am seeking damages from the Plaintiff for the lies she has told to the Court and the damage it has caused me financially.  The Plaintiff swore in her Affidavit for the Mareva that she had the means to cover all damages towards me by her actions.

(8) I wish to be able to present to this court a list of all the damages caused and the amount of costs I will seek.”

10.  As regards the basis on which the judge imposed the stop-gap measure when the Registrar had refused to register the Ontario orders, we have dealt with that at paragraph 7 above.  Obviously, much depends on the outcome of the application for judicial review in February.  If the plaintiff fails, the defendant can ask the court to discharge the Mareva injunction continued by Deputy Judge Sakhrani on 27 November 2013, including the injunction varied by Deputy Judge Hartmann and the stop-gap measure imposed by the judge.  If the plaintiff succeeds, then the defendant cannot complain about the non-registration.  In the meantime, the injunction is still in force and we must proceed on this basis.

11.  As regards the other matters, they do not properly fall within the scope of any grounds raised in the draft Notice of Appeal and we are not minded to entertain them in the context of this application.

12.  We therefore refuse to grant leave.  We are also of the view that this is a hopeless application and the judge had already given full and adequate reasons for the refusal of leave in her judgment of 23 October 2014.  In these circumstances, we would make an order for indemnity costs against the defendant, see Cheung Shuk Mei v Poon Kin Fai HCMP 1705 of 2014, 4 Sept 2014; Motorola Solutions Credit v Uzan HCMP 1237 of 2014, 26 May 2014; Compania Sud Americana de Vapores SA v Hin-pro International Logistics Ltd HCMP 1932 of 2014, 16 Oct 2014 and Good Form Co Ltd v Cheung Wai Han HCMP 3153 of 2014, 16 Jan 2015.

13.  The plaintiff submitted a statement of costs in the sum of $99,499.  Though we gave her costs on indemnity basis, we think the amount sought is unreasonably high bearing in mind that most of the works were undertaken by counsel who only charged $37,000.  There are rooms for deduction under Sections C and D of the statement.  We would fix the costs of the plaintiff at $79,500.