FU HAY KIN v. FU LO LAI LIN

IN THE COURT OF APPEAL

1994, No. 231
(Civil)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court):

1. The petitioner appeals against the dismissal by His Honour Deputy Judge Day of his summons to vary the consent order made by His Honour Judge Rattigan in March 1992. The consent order provided a lump sum settlement on the dissolution of the parties' marriage in the amount of $200,000 to be paid in three instalments, i.e. $100,000 by June 1992, $50,000 by June 1993 and $50,000 by June 1994.

2. The general ground of the petitioner's appeal is that the judge did not address all the circumstances of the case, particularly the petitioner's inability to pay throughout. The petitioner had chronicled in some detail the history of his difficulties in a lengthy affidavit which, with accompanying bank statements and other documentary evidence and exhibits, assumed considerable bulk. He presented them to the Deputy Judge just before he was to hear the application. The petitioner complains that the judge simply glanced through them in 10 minutes or so, and did not study them nor consider the circumstances they pointed to, not even give him a proper opportunity to present his arguments.

3. Superficially, there first seemed to be something in his complaints. But having heard him and the respondent (his ex-wife) and seen something of the evidence, it has become very clear that the judge had grasped the essentials of the petitioner's case and understood the general position very well.

4. The petitioner has, since the consent order was made in March 1992, managed to avoid paying a single cent of the lump sum and of the costs of some $81,000. He admits selling his flat for about $4.8m but says that sum was swallowed up by the bank mortgage, and his other debts and expenses. He says he has been unemployed all this time, and has survived only by obtaining loans. He has to support his new wife and daughter, and in addition, his son by the respondent who is now coming to the age when increased educational expenditure will arise. Plainly, there is a total absence of any will to pay. The petitioner is fluent in English, intelligent and has an impressive grasp of the legal complexities of these and related bankruptcy proceedings. He asks for these proceedings to be remitted back to the District Court for a hearing de novo of his summons. What possible useful purpose that could serve is difficult to see; it will only delay matters. With justification, the respondent complains that not only did she have to endure matrimonial proceedings that ran to several years before the consent order was made, but that the petitioner has been and is now simply delaying matters while diverting moneys to other ends; only a bankruptcy order will establish the true position.

5. We find no merit in the appeal which we dismiss. On the respondent's application we grant leave under s.12(1) of the Matrimonial Property and Proceedings Ordinance to enforce Judge Rattigan's consent order, such leave being required as all three instalments, accelerated by the terms of that order on default of payment of the first instalment, are now more than 12 months in arrears.