NSK v. KRW

FCMC 7594 of 2015

[2019] HKFC 126

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7594 of 2015

----------------------------

----------------------------

-----------------------

R U L I N G
(Leave to appeal)

-----------------------

Introduction

1.  This is an application by a Respondent husband for leave to appeal against part of my judgment dated the 2 April 2019. The judgment in question is in relation to the wife’s section 17 application and also concerned the issue of final ancillary relief. On the 22 February 2019 the parties returned to court prior to the judgment being handed down, on the wife’s application for further directions in relation to the expiry of her tenancy agreement. On that occasion, the husband also indicated that his financial situation had deteriorated. Consequently, I explained to the parties inter alia that a) the court would endeavour to hand down its judgment before the 31 March 2019 when the wife’s tenancy was due to expire, b) the court could only determine a case, based on the evidence before it at trial and c) if there was a material and subsequent change of circumstance (in relation to maintenance) then it was open to either of them to apply to vary the original maintenance order. 

2.  The husband now seeks leave to appeal paragraph 4 of the judgment as follows:

FOR AN ORDER THAT the paragraph 4 of the Judgment that “the Respondent shall pay the wife (the Petitioner) periodical payments in the sum of HK$100,000 per month with effect from the 1 April 2019 until payment of the lump sum in paragraphs 1 and 2 above be set aside”, the paragraph 4 of the Order be varied to:

(a) the Respondent shall pay the wife (the Petitioner) periodical payments in the sum of HK$30,000.00 per month with effect from the 1 April 2019 until payment of the lump sum in paragraphs 2 and 3 above,

He does not seek to appeal against the division of capital, although he has also written seeking some clarification in that regard.

The law on leave to appeal

3.  In so far as the application for leave to appeal is concerned I am of course mindful of the test as set out in Section 63A of the District Court Ordinance which states as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

4.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Grounds for appeal

5.  It is of note that the husband’s grounds of appeal do not refer to the husband’s alleged change of circumstances, although this is referred to in his skeleton submission. His grounds of appeal are as follows:

1. The Learned trial Judge erred in law in ordering the Husband to pay the Wife periodical payment against the non-disputed/undisputable evidence and against the finding of the Learned Trial Judge that:

(a) the wife has removed two sums of HK$500,000 each from her bank account (paragraph 90 of the Judgment)

(b) the wife has some undisclosed asset (paragraph 93 of the Judgment)

(c) the wife has an earning capacity and has property in which she can live in Malaysia (paragraphs 96 of the Judgment)

2. The Learned Judge erred in law in over estimating the Husband’s earning capacity at HK$250,000 a month by failing to give or failing to give due or sufficient consideration to the age and health of the Husband, the business has become more and more competitive.

3. The Learned trial Judge having found that the Wife have held hidden assets/substantial assets, she should take the responsibility/contribute for her living expenses.

4. The Learned trial Judge had wrongly overlooked the Husband’s expenses and housing needs, and in so far as the Learned trial Judge placed sole reliance on the Wife’s reasonable requirements.

6.  It seems to me that there is little substance with respect to these grounds and in general I accept the arguments advanced by the wife in that respect. I shall not repeat those arguments here, but reference may be made to the wife’s Statement/Skeleton submission in opposition dated the 22 April 2019, where she sets out her arguments in full.  

7.  However, I do acknowledge, and as indicated previously, that it is open to the husband to apply to vary the maintenance payments if the situation should warrant it. I would though strongly suggest that he seeks some legal advice before doing so.

Decision

8.  The husband application for leave to appeal is refused. As indicated above I do not accept that the appeal has a reasonable prospect of success and in any event it seems to me that the more appropriate route is to apply to vary the maintenance.

Costs

9.  In so far as the costs of this application is concerned, given that the parties are both acting in person and that they may not have fully appreciated the legal options now open to them, I shall exercise my discretion and order that there be no order as to costs.