HTL v. K,RE

FCMC1678/2013

MATRIMONIAL CAUSES NO. 1678 OF 2013

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R U L I N G
(Leave to appeal)
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1.  On 11 July 2014, I handed down my judgment on the Respondent husband’s application for maintenance pending suit/interim maintenance. This is the Respondent’s application dated the 8 August 2014, for leave to appeal that judgment.

2.  Section 63A of the District Court Ordinance allows for an appeal to be made to the Court of Appeal with the leave of the presiding District Court judge.  Section 63A of the District Court Ordinance provides 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.”

3.  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.

4.  Mr. Leung for the wife maintained that the Respondent’s application was made out of time, in which case slightly different principles apply. In fact the Respondent issued his application precisely 28 days after the judgment was handed down. Order 58 rule 2 (4) states that an application for leave to appeal an interlocutory judgment must be made within 14 days and an application for leave to appeal any other judgments must be made within 28 days of the judgment being handed down. In this instance I accept that the Respondent’s application for leave to appeal was not made out of time.

Background

5.  I do not intend to go into a great deal of detail with respect to the litigation to date, but suffice it to say that this has been a highly conflicted case which has included a defended suit, a 17 day trial on custody, care and control and access, a failed FDR and countless hearings inbetween. The matter came to me for trial on ancillary relief and trial dated have now been set for December. Hearing dates were originally set down for July but were later vacated due in part to the fact that the husband no longer had legal representation. He was previously represented by lawyers instructed by Legal Aid. Legal Aid has since been discharged. He says that he intends to appeal that decision, which is due to be heard sometime in November. Although the husband indicated on a number of occasions that he intended to apply to vary the order for custody and care and control, this was not done until the 8 August 2014. At the hearing on the 16 September 2014 the husband also said that he intended to apply to adjourn the ancillary relief trial until after his application on variation of custody and care and control had been determined. At the date of writing this Ruling, that application had not been received.

The Maintenance pending suit/interim maintenance judgment

6.  In my judgment of the 11 July 2014 I made the following observations:

     Each party’s case

7. The wife works full time as a teacher and earns HK$47,290 per month. She is wholly responsible for the children’s maintenance. She says that she struggles to make ends meet and that she cannot afford to support the husband. She has limited financial resources otherwise.

8. The husband for his part maintains that he has no money, no other financial resources and no means at all to support himself. He is now not working and says that he has no earning capacity and that he also has significant health issues which make it unlikely that he will be able to earn a living in the future. Thus the issue of the husband’s earning capacity and any other health related issues will be central to the ancillary relief trial. The wife maintains that the husband should be able to maintain himself and does not accept all that has been asserted about his health.   

7.  I added that

14. At the hearing the wife’s solicitor accepted that the issue of the husband’s earning capacity was going to be central to the ancillary relief trial and that it would not therefore be appropriate for me to make any determination on that issue at an interlocutory stage. Consequently that line of argument was not pursued.

15. The wife’s lawyer did however argue that the husband had not made full and frank disclosure of his assets. Again some of those points will need to be properly ventilated at the trial. It should however be noted that to date the husband has not produced copies of bank and credit card statements as requested. I made the point that this was essential information and that the trial would not be able to proceed without such information. I indicated that I would make a costs order against the husband (which ultimately would come from his share of the assets) in the event that he sought an adjournment at the last minute because those statements had not been produced. No application was made to me in that respect on the 24 June.

8.  In conclusion I made an order that the wife pay the husband maintenance pending suit of HK$4,800 per month from the 1 August 2014 and that in the event that the husband is found to have other financial resources available to him that this money will be recouped in any final ancillary relief hearing.

The husband’s application for leave to appeal

9.  The husband, who is now acting in person, filed an affidavit in support of his summons which purported to file some fresh evidence that had not been before the court originally. Mr. Leung rightly pointed out that this was improper and should not be allowed.  That must of course be right. In essence the husband says that the maintenance ordered is not enough. He also seeks maintenance for the children although the mother has sole custody and care and control and she is wholly responsible for their upkeep. However he has not identified specifically in the judgment where he says that there are errors. There are no draft grounds of appeal.

10.  I should add that an application for maintenance pending suit is by its very nature a short term measure which should be approached on a broad brush basis. In this instance the trial for ancillary relief is due to be heard in December. If at the end of the day it is found that I should have ordered the husband a more generous amount for maintenance pending suit or if it is found that the amount should be decreased or should not have been ordered at all, then that is something that can be adjusted in the final order.    

11.  All in all I do not accept that the husband has any realistic prospect of succeeding in his application.  Consequently, the husband’s summons for leave to appeal shall be dismissed. The husband shall pay the wife her costs of this application, to be taxed if not agreed on a party and party basis.