RVCM v. BFM also known as BFDv

FCMC 6519/2012

[2025] HKFC 189

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6519 OF 2012

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J U D G M E N T

( Leave to Appeal Paper Disposal)

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1.  This is the Respondent wife’s (“W”) application for Leave to Appeal by her Summons of 28 April 2025 against my decision in dismissing her application made on 11 March 2025 (“Relief from Sanctions Application”) wherein she asked for relief from sanction of Orders I made on 12 February 2025 (“February 2025 Order”).

2.  In the February 2025 Order, I made the following three Unless Orders:

a.  Unless W files her Narrative Affidavit by 18 February 2025, her ancillary relief claim will be dismissed.

b.  Unless W files the valuation of the pieces of land declared in the parties’ respective Form E by 4 March 2025, her ancillary relief claim will be dismissed.

c.  Unless W files her Form E by 19 March 2025, her ancillary relief claim will be dismissed.

3.  The Relief from Sanctions Application was heard on 15 April 2025, I dismissed her application, and gave an extempore decision (the “Decision”). The inadvertent result of my dismissal is that her ancillary relief claim has been dismissed.

4.  On the day of the hearing of the Relief from Sanctions Application, the Petitioner husband (“H”), on hearing that W’s application was dismissed, also withdrew his ancillary relief claims against W.

5.  H opposes this leave to appeal application and filed his late submission with leave granted on 19 June 2025.

Background of the parties

6.  Parties were married in 1995. H is from Belgium and W is from Swaziland, South Africa. Both are teachers; H at an international school, and W with the English Schools Foundation. They had previous relationship prior to their marriage and came into this union each with a child of their own. There are two more children from this marriage; the youngest one was born in April 2003 and now aged 22.

7.  W initially filed for divorce in 2010, her petition was withdrawn in March 2012, whereupon H filed his own petition under this matrimonial cause proceeding in May 2012. There was a hiatus after when parties tried to reconcile, which apparently failed when H restored these proceedings in November 2016.

8.  The Decree Nisi was pronounced in June 2019, and the Decree Absolute in July 2020.

9.  H has cited 2016 as their separation date, claiming that they had separated albeit living under the same roof. W had been ambivalent and unclear on the date of separation, but between October 2020 and April 2021 she appeared to have moved to a different address according to her Form Es.

10.  HHJ Melloy conducted an FDR in June 2021, which failed. The case was then passed to HHJ CK Chan in September 2021 who made a number of case management Orders and set the case down for trial in July 2022 in my Court. Only the H complied with one of HHJ CK Chan’s Orders made. I refer to paragraphs 8 to 14 of the Decision which cite in brief and highlighted some of the case development after I have seized of this matter in mid - 2022.

11.  The parties’ substantive assets are land and properties in Swaziland. 3 of which are held in a company of which the parties are joint shareholders and directors; and other pieces of land allegedly purchased and inherited and held in W’s name, and of which H claims beneficial ownership. There are no joint personal bank accounts, they each have their own MPF account. As mentioned above, H has relinquished his ancillary relief claims after the hearing on the application for relief from sanction.

Legal principles on Leave to Appeal

12.  Under Section 63A(2) of the District Court Ordinance, 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.

13.  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”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF HCMP 288/2011. Even if this threshold requirement is met, the Court still has a discretion to refuse leave (Hong Kong Civil Procedure 2025, 59/2A/4).

14.  Dealing with an application for relief from sanction is a case management decision, and the law with regard to appealing against a case management decision is trite. On this I turn to the decision of Chu JA in the case of NPYJ v SMRC, [2020] HKCA 832, where she propounded the following principle:

“23. It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51. This Court has consistently held that an appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.”

Grounds of Appeal

15.  W has 3 intended grounds of appeal, the following are taken from her summons, I shall deal with each paragraph in turn. In writing this decision, I also had the opportunity to review the transcript of the hearing on 12 February 2025 and to look further into the history of this case, the relevant information will be cited below.

Ground 1:  The learned Judge erred in failing to properly consider the consequences of the Unless orders and the disproportionate sanction of dismissing the Respondent’s ancillary relief claim, without due regard to merit or any section 7 factors. The sanction was excessive, and contrary to underlying objectives, O.1A, r.1 and r.2 of the Rules of District Court (“RDC”) and the interest of the administration of justice. (O.2r5(1)(a) RDC).

16.  W’s submission says that I have failed to consider the proportionality of the sanction of the Unless Order, and that it is a “weighty factor when considering whether to grant relief from sanction”, quoting Daimler AG v Leiduck [2012] HKLRD (CA). It is of note that the delay in complying with the Court Order in that case, was only a matter of hours.

17.  The proportionality of the Sanction Orders was considered when it was made in February 2025, and at that point of time having considered the multiple occasions of W’s non-compliant conduct. At the hearing for the Relief from Sanctions Application, this Court followed the considerations to be undertaken in such an application under Order 2 Rule 5(1), this is in §§15-17 of the Decision; and have found her explanations for delay wanting.

18.  In considering just resolution of the ancillary relief issues, and administration of justice, I need to take into account impact on both parties in a balancing exercise.

W’s Non-compliance of Court Orders

19.  In his submission, H says that W has repeated noncompliance and delays since the commencement of the divorce proceedings for more than 13 years. He also reminds this Court that back in May 2019, when HHJ Melloy dismissed the W’s application to file an answer out of time, she had found that W’s delay of nearly 7 years unacceptable; in that case, the Judge had found that W has failed to give a valid explanation for her delay of nearly 7 years.

20.  H reminds me in his opposition submission that W has failed to comply with 17 Orders made by the Court. This has prompted me to do a stock-take of the Orders made and compliance by both parties.

21.  Prior to the FDR in June 2021, W has failed to comply / comply in time with the following Orders:

a.  Order by HHJ Melloy 21 Dec 2016 to file Form J and Form E, W did not file

b.  Order by HHJ Melloy 21 April 2017 to file Form J and Form E, W filed more than 5 weeks after the due date

c.  Order by HHJ Melloy 11 Oct 2018 to file Form E with supporting documentation, W did not file

d.  Order by HHJ Melloy 29 November 2018 to file updated Form J, W filed more than 3 months after the due date

e.  Order by HHJ Melloy 4 April 2019 for W to file affirmation regarding child issues, W filed 8 days after the due date

f.  Order by HHJ Melloy 18 September 2019 for parties to file statement of proposals for CDR, W did not file (nor did she turn up for the CDR on 22 June 2020 whereupon HHJ Melloy made an Order regarding custody of a child of the family in her absence)

22.  It is of note that at all the above instances, H had complied with the Court Orders on time.

23.  It is also observed, since the proceedings were restored by H in November 2016 until February 2025 over this period of more than 9 years, there were only two occasions that W filed documents properly and on time: (i) When HHJ Melloy made an Unless Order for W to file a comprehensive affirmation in support of her Summons to dismiss the Registrar’s certificate and file answer out of time to H’s Petition, and (ii) When ordered to file updated Form E prior to the FDR in June 2021.

24.  As to what happened after the FDR in June 2021, it can be seen from the table below that referring to the Orders since the FDR (one from HHJ CK Chan and subsequently by me) from September 2021 to February 2025, W has failed to comply with all the Orders made on her, these were either late (8 weeks to 22 months), incomplete or not performed at all. By my calculation, there are 16 in total.

Date of Order	Orders	Compliance by H	Compliance by W
24/9/2021 (CK Chan)	Bp to file and serve Q within 7 days	Filed on 6/10/2021	Not done
	Bp to file answers to Q	N/A	Not done
	BP to file Narrative Aff	Not done	Not done
	P to agree on valuation of disputed landed properties and to file joint valuation report before next PTR	Not done	Not done
14/6/2022	Updated Form E (14 days)	Not done	Filed on 28/6/2022 (Incomplete attachments)
	Questionnaires (14 days)	H already filed Q pursuant to Order dated 24/9/2021 on 6/10/2021
	Narrative Aff (per Order dated 24/9/2021)	Not done	Not done
13/12/2022	W to file Form E with all attachments		Filed on 30/8/2023 (8 months after Order)
	W to file Answers to H’s Q dated 6/10/2021 (see above)		Filed on 30/8/2023 (should be answered 21 days after Q filed; but W took 22 months)
	W to produce Valuation of 4 pieces of land in Swaziland		Attached to correspondence dated 30/8/2023
20/5/2024	H to file Updated Form E on or before 9 August 2024	Filed on 7 August 2024
	H to file affidavit relating to land and proceedings in Swaziland on or before 9 August 2024	Filed on 7 August 2024
	Both parties to file Narrative Aff on or before 13 September 2024	Filed 10 September 2024	Not done
	W to share costs with H equally of photocopying charges of her Form E and Answers which were not served on H		Not done
17/10/2024	W to file Narrative Aff within 7 days		Not done
	W to retrieve valuation of 4 properties allegedly already filed with the court and re-file afresh and served on H on the same day		Not done
12/2/2025 (February 2025 Order)	Unless Order for W to file Narrative Aff on or before 18 February 2025		Filed on 14 April 2025 (8 weeks after due date and one day before the Relief from Sanction hearing)
	Unless Order for W to file valuation of properties or on before 4 March 2025		Not done
	Unless Order for W to file Updated Form E on or before 19 March 2025		Filed on 14 April 2025 (8 weeks after due date and one day before the Relief from Sanction hearing)

25.  There was a long gap between December 2022 and the following court date of May 2024. This was because I made the Order in December 2022 that only with W’s compliance of the Orders made and then H’s responses thereto would the parties be allowed to restore the proceedings. It could also be seen from above that W took more than 8 months to comply with the Orders, and a further 6 months to write to court to restore the proceedings in February 2024. H claimed not to have been properly served, which made it impossible for H to comply with my December 2022 Order.

26.  Referring to the aforesaid transcript, the Unless Orders made was against the backdrop of the non-compliance of a number of the above Orders.

Prejudice to H

27.  W says there is no prejudice to H.

28.  These divorce proceedings started in 2012, and even acknowledging that parties had tried to reconcile in between over an intervening period of around 4 years, has traversed over a period of 13 years; with no trial dates in sight.

29.  It can also be seen that H had duly complied with most the Court Orders to his best efforts but has been heavily pitched against the vast contrast of W’s delinquency.

30.  It is also important to bear in mind that with the relevant documents that has H filed, e.g Narrative Affidavit or his Form Es, these kept on falling further from any future trial date due to the non-compliance of Court Orders by W, and may in turn necessitates further updates by H, thereby incurring further costs and time.

31.  After all these years, H (and indeed admittedly also for W), has still not been able to move on with his life with a clean break from this divorce. The prejudice caused to the H, in my view, is immeasurable.

W’s ancillary relief claim

32.  W complains that her AR claim has been dismissed without considering the merits of her case. I took the view that W shows no urgency to pursue her ancillary relief claim at all. And having been giving chances over and over again, she has fallen far short of due and diligent prosecution of her own case. Her non-compliant behaviour, in my view, has warranted the present consequence. She was given a last chance with the February 2025 Orders, which include inter alia, simply the filing of valuations which she said had been filed with the Court before, she raised no objection to the timeline given to her and yet still failed to perform as ordered.

33.  Her counsel submits that it has been a long marriage of 17 years, that they were living under the same roof until 2020 and they have two daughters. It was said that the children are not financially independent. Referring to an undertaking made by H to be “wholly responsible for the financial needs of N” (presumably the youngest daughter) in an Order dated 22 June 2020, W says H had not been meeting these expenses. Yet there has not been any application made by W to pursue / enforce this payment by H for N.

34.  In due administration of justice, it is also incumbent on the Court to ensure that any case is dealt with expeditiously with robust time management and on the progress of the matter. In the circumstances, I remain of the view that W’s blatant and contumacious disregard of Court Orders has warranted the dismissal of her claims having been given chances time and time again to put forward her case and she has failed to do so.

35.  I therefore find this ground of appeal has no merits nor any prospect of success on appeal.

Ground 2:  The learned Judge erred in failing to give due regard to the following matters under O.2r.5(1) RDC. In particular:

(a)  That the Respondent, a litigant in person, did not entirely understand or was not aware of the consequences of the effect of the February 2025 Order.

36.  W never said in her Relief from Sanction Application that she does not understand the effect of the February 2025 Order.

37.  W is educated, a teacher by profession, converses clearly in English, conducts all proceedings in English in Court; and shows no difficulty in comprehension. The Orders were stated in simple and clear terms as to the consequences of dismissal of her ancillary relief claim.

38.  She raised no questions on the Unless Orders made at the date of the hearing on 12 February 2025.

39.  W had previously faced an Unless Order given by HHJ Melloy on 2 April 2019, and had complied on time (see paragraph 23 herein). It cannot be said that she did not understand the effect of the Unless Orders made in February 2025.

40.  It is not accepted that she did not understand or was not aware of the consequences of the February 2025 Order.

(b)  That the Respondent, a litigant in person, had made the application for relief promptly on 11 March 2025 after being informed by Master Stanley Ho on the same date of the “automatic effect” of the sanction, and the correct procedure to apply for relief from sanction (the Respondent have initially applied for extension of time on 21 February 2025.)

41.  W should be well aware that she has missed a deadline on 18 February 2025; she only filed her application for time extension on 26 February 2025, and did not even state till when she requested for an extension.

42.  The deadline for application for relief against sanction is 14 days from the failure of compliance (Order 2 Rule 4 of RHC and §15 of the Decision).

43.  After applying for extension of time, she continues to breach two other deadlines on 4 March 2025 and 19 March 2025 (see paragraph 2 herein and the table under paragraph 24). No prompt or remedial action was taken by W, she carried on as in her normal fashion of ignoring Court Orders and deadlines.

44.  Had she considered the dismissal of her ancillary relief application to be an issue, she could have found out what she needed to do through several means: including doing research, seeking advice, or engaging legal representatives (as she has now done for this appeal).

45.  H has also reminded the Court that at the hearing in February 2025 when asked why W did not file documents ordered by the Court, her answer was that her legal representative told her to wait. He therefore says that she has not in fact been a litigant in person and has been legally advised throughout. Referring back to the transcript of the hearing in February 2025, W did say she has a couple of lawyers; taking this point at a minimum, W has access to legal advice.

46.  It is not accepted that she has acted “promptly” in her application for relief against sanction. The promptness of any action should have stemmed from the time of non-compliance, and not from when a Master told her she could apply for relief at an extension of time hearing.

(c)  The Respondent had filed the documents required under the order dated 12 February 2025 by 14 April 2025, prior to the hearing on 15 April 2025 before the learned Judge.

47.  W filed her narrative affirmation and her updated Form E at 5:21pm on the day before the hearing of her Relief against Sanctions Application, clearly designed to redeem her non-compliance.

48.  By 15 April 2025, her narrative affirmation was 8 weeks after the due date.

49.  The due date for her Form E was 19 March 2025, by which time she was well aware, having learned from Master S Ho on 11 March 2025 that the sanction is automatic and the dismissal of her claim would take effect, she still filed her Form E two weeks after the due date.

50.  There was a complete lack of urgency nor intention to remedy her position to the best of her ability.

51.  W is clearly competent to produce the documents required by the Court, but clearly decides to dictate the timing as to when she wants to do it.

(d)  That the trial date could still be met if relief from sanction were granted, as no new trial date had yet been fixed.

52.  There is no trial date set, this was precisely because of the delay caused by W’s non-compliance of Court Orders over the years.

(e)  That there was no prejudice to the Petitioner for relief from sanction to be granted as (i) the Respondent had filed the documents required under the Order of 12 February 2025 by 14 April 2025; (ii) the ancillary relief trial had yet to be fixed (iii) the Petitioner could be appropriately compensated by a costs order as necessary; and (iv) the Respondent’s non-compliant conduct could also be taken into account as deemed appropriate by the Court at the ancillary relief Trial.

53.  W has still not filed everything required under the February 2025 Order.

54.  I have dealt with (i) and (ii) above.

55.  I have already cited why a Costs Order against the W could not have been an effective remedy (§19 of the Decision). The time and effort that the H has, acting in person, put in to keep this matter going with compliance on his part could not have been compensated by an award of Costs in his favour. As mentioned in the Decision, this Court is not convinced that W would abide by any Costs order made against her.

56.  I fail to see any meritorious arguments in this ground of appeal, nor can I see any prospect of success of this ground on appeal.

Ground 3:  The Court failed to consider appropriate alternatives in keeping with the spirit of CJR under which the Court will generally reserve striking out as a remedy of last resort and is encouraged to consider other more appropriate reliefs: Daimler AG v Leiduck [2013] 119, §66. Namely, fixing the matter for trial without further delay and ordering costs against the Respondent.

57.  This case cannot be set down for a trial, there was no updated valuation of the most substantive assets of the parties, being properties in Swaziland; as W has failed to file valuations per Order; and never gave any explanation as to her failure to do this despite repeated Orders.

58.  The point on Costs Order as an alternative remedy has been covered above.

Conclusion

59.  W has acted as if the law, the rules and procedures do not apply to her, and that there will be no consequences from her non-compliance, as there was none over the 13 years duration of this matter. I took the view that the Court should not further condone such behaviour.

60.  This is a case that, all things considered and in the interest of justice, W’s application must be dismissed. I stand by the considerations and rationale undertaken in my Decision.

61.  I am not of the view that the W has identified in her Notice of Appeal any grounds with real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted.

62.  W’s application for leave to appeal against my decision on her Relief against Sanction Application is therefore dismissed.

Costs

63.  There is no reason why Costs should not follow the event, therefore I make the Order that the Costs of this application be to the Petitioner husband. This to be a Costs Order nisi to be made absolute 14 days hereof.