H v. W

FCMC 8332/2017

[2020] HKFC 123

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8332 OF 2017

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J U D G M E N T

(Litigation funding and variation of maintenance pending suit)

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1.  This judgement is concerned with two applications:

a.  The Respondent wife’s application for litigation funding under her Summons dated 17 October 2019; and

b.  The Petitioner husband’s application for variation of a MPS Order made by HHJ Melloy on 24 October 2018 (the “MPS Order”) dated 16 December 2019.

2.  By an Order of the Court made on 4 March 2020, the applications were directed to be dealt with by way of paper disposal.  As these are standalone applications, they were transferred to me, sitting as a Deputy judge, so that it could be dealt with as expeditiously as possible.

Issues

3.  Under the wife’s application, the Court is to consider if and how much the husband should pay for litigation funding to the wife.

4.  The Court is also to consider whether the alleged change of circumstances of the husband warrant any variation to the MPS Order. 

The Background

5.  The previous MPS judgement had set out in part the parties’ background.  To recap the essentials, the parties are respectively aged 37 and 40, they were married in February 2013, the daughter of the family were born in October 2015, and the husband issued the divorce petition on 29 June 2017.

6.  Following the MPS Order, the husband is to pay the wife, $14,000 per month and interim maintenance of $38,500 for the child of the family, in addition to the undertakings to pay for the daughter’s school fees, ECA up to $2,000 and medical and dental insurance for the wife and daughter.

7.  It is recalled that the husband had a few sources of income at the time of the wife’s first MPS application:

a.  Salary from APC $95,000;

b.  Gold investment income US$2,000;

c.  Gold Fund Income $96,487.50; and

d.  Online business commission of approximately $40,000

8.  Even before the last MPS Hearing on 13 August 2018, the husband had resigned from his salaried position at APC whereupon his total monthly income was reduced by around $100,000; and claimed to be no longer receiving the US$2,000 from the gold investment income, it was noted that there were no reasons nor supporting documents given.

9.  Following the MPS Order, a number of events had taken place.

10.  He had sold his business interest in X Ventures to his father for US$201,973.99 in January 2019, although the wife claimed that the husband remains a principal in the business.

11.  He closed down his online business after consulting legal advice, so that income of $40,000 is no longer available to him.

12.  Husband claimed that due to IRS intervention, his income from the gold fund has stopped since July 2019.

13.  The husband’s payment under the MPS Order had lagged in August 2019, and then he stopped paying since October 2019.  He caught up with October and November payments when chased and only partially paid for December.  He then appeared to lag behind again in January and February 2020.

14.  The husband had filed a summons for joint care and control of the child in June 2019, and the wife filed a relocation summons in March 2020.

15.  Both parties supplied updated financial disclosures from August 2018 to January 2020 in March 2020.

The wife’s application

16.  The wife’s application for litigation funding is only with regard to the care and control hearing coming up, originally scheduled in May 2020 and subsequently re-fixed to July 2020.  The husband initially issued his summons for sole care and control then amended it to shared care and control, a 7 days trial has been set down with numerous witnesses including relatives and friends, domestic helpers, experts and social work officer.

17.  Both sides have complained about each other’s litigation conduct which have led to protracted proceedings and increased costs, these were elaborated at length in their affirmations, but will not be reiterated here.  Despite both parties had stated their wishes to resolve matters out of court, nothing has come out of these intentions and various proceedings are still on-going.

18.  Both parties have engaged legal representation, the costs that they had incurred were substantial and as of December 2019, amounted to more than $10M; with the husband spending 50% more than what the wife has spent.  This is an appalling drain on the family resources, and clearly would be money better used for the daughter; there was an incident in January 2020 when the husband allegedly could not come up with money to pay for her school.  The husband had since claimed that he could no longer afford his lawyers and have filed to act in person as of 17 December 2019.

19.  The wife’s legal representation has estimated the cost of the care and control hearing to be $1,924,000; and a further $4,101,000 going forward for a possible preliminary issues and ancillary relief hearing.  She had provided a detailed breakdown of the legal costs required.

20.  The husband filed his 14^th Affirmation on 4 March 2020, this was supposed to be his reply to the wife’s affirmation in opposition to his variation summons.  However, his affirmation contained further responses with regard to the wife’s litigation funding summons, this is without leave and will be ignored for the purpose of this decision.

The husband’s application

21.  The husband’s application for variation of maintenance taken out on 16 December 2019 asked the Court to reduce his obligations under the MPS Order.  He did not propose a figure, except to ask for a variation to such amount as the Court sees fit.  It is worth noting that this has come about less than 14 months since the handing down of the MPS judgement.

22.  In addition to the abovementioned events which happened after the first MPS hearing in August 2018 to the time of the husband’s application, it is the husband’s contention that the wife has more assets than he does; and that he is no longer able to borrow any further sums.

23.  The husband complained about the amount of expenses the wife claimed and also that she had double counted some of them.  He was also very persistent in ensuring that the amounts he paid for the daughter indeed went to what it was claimed for.

The Law on Legal Costs Provision

24.  So far as the law on the funding of litigation costs is concerned, Currey v Currey [2006] EWCA Civ 1338 continues to be referred to in Hong Kong. This states inter alia that:

“the conditions for a ‘costs allowance’ are as follows:

(1) That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).

(2) That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).

(3) That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)  That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20])”

25.  At para [20], Wilson J further held “In my view, the initial, overarching enquiry should be into whether the applicant for a costs allowance could demonstrate that she cannot reasonably procure legal advice and representation by any other means.”

26.  The Court’s discretion is wide, and is also to consider the “subject matter of the proceedings”, and the “reasonableness of the applicant’s stance in the proceedings”. ([Para 21] refers)

The Analysis on the litigation funding application

The wife’s resources

27.  The wife admitted her entitlement to an income of $37,000 from her gold investment of $2.34M, although there has been problem with this payment since July 2019 due to some issues with IRS as aforementioned.  It does not appear to be in dispute between the parties, that there has been difficulty in securing this monthly sum, as the husband has the same source of income and he received $96,163.  Originally thought to be a bank account compliance issue, the wife had in January found out from the husband that the IRS is investigating the gold investment and that the funds are frozen; it is unclear when the investigation will be over, but the husband has indicated this should be lifted in due course. 

28.  The wife also has the use of a supplemental credit card which is capped at $20,000. This is settled by the husband, but the amount will be set off from the sum he pays to her.

29.  The husband insisted that the wife should return to work.  Apparently, the wife ran her own recruitment business during the marriage, but closed the business in around March 2018; she had indicated that she would return to work when the daughter enters primary school, She is now 4 years old, and will turn 5 in October 2020.

30.  Husband had also engaged a forensic accountant to do an analysis on the wife’s company finances and listed out a number of challenges.  This is not the forum to look into these numbers, which will need to be investigated in context, and given to the wife to respond.  The issues raised by the husband will therefore not have any bearing on this decision.

31.  The wife has been drawing on her business account, this account had around $2,141,000 in August 2018, from then to June 2019, she moved almost $1.7M to her personal account, no doubt to supplement her expenses which is understandable.  The MPS Order gave her only $14,000 from the husband for general expenses, she is expected to pay for her own personal expenses, and the entertainment and travel expenses of the daughter when she is with her.

32.  According to her 9^th affirmation dated 6 February 2020, her most updated account statements showed she had the following assets:

a.  $1.686M in her personal account

b.  $1.439M in her business account

c.  $543,015 in her securities account

Her business account balance is erroneously reported, the February 2020 statement shows only a balance of $385,835.

33.  There should also be “gold investment” of $2.34M, as stated in her Form E dated September 2017. This should be the source of her monthly income.  It is difficult to expect her to draw on these funds as it is generating an income for her, and at the moment it is frozen under the IRS investigation.  But it would not be correct to say that she is without resources; or that it is impossible for her to convert this investment into some other form of investment with return.

34.  However, by a letter from her lawyers dated 6 April 2020, the wife has apparently transferred US$150,000 to Singapore to secure a 20% interest in a company she hopes to work in.  This amount was taken from the wife’s personal account and her business account. Her latest position in her bank accounts after this tallies HK$144,792 and $248,106 respectively.  I am assuming she still has the assets in her securities account.

35.  The Singapore company to which this capital sum has been transferred, is apparently owned by a man with whom the wife has a relationship and intends to marry after the divorce; this latter information was provided by a letter from the wife’s lawyers to the husband.  A letter from this Singapore company to the wife stated that the injection amount for the stake holding into the company is a “generous offer” only available up to 31 March 2020.

36.  I do not consider such removal of the wife’s capital amount to be appropriate during the course of the divorce.  This amount could have gone towards more than half of the litigation funding for the care and control hearing.  It is unfortunate that the wife has made such a move and at such timing; and on the basis that she does have assets she could have deployed, but chose not to, I will dismiss her application for litigation funding.

37.  For the sake of completeness, I am of the view that the wife has no assets which could be offered as security for borrowing; she is unable to obtain legal service by offering a charge against the outcome of the litigation, nor is she likely to be eligible for legal aid.

The Law on Variation of Maintenance

38.  The husband’s summons is based on Section 11 of the Matrimonial Proceedings and Property Ordinance, which reads as follows:

“(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court should have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.”

…

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates …”

39.  In the case of AEM v VFM [2008] 3 HKLRD 36 , Cheung JA explained the modern approach in dealing with an application for variation of maintenance at para 14 of the Judgment, in particular the following sub-paragraphs:

“3. The traditional approach to variation was not to re-fix afresh the amount of maintenance but to consider the amount of change in the actual means of the parties so that the new order should merely be increased or decreased roughly in proportion to the change in the means : Foster v. Foster [1964] 3 All ER 541, Jackson's Matrimonial Finance and Taxation 7th Ed. Ch. 3. 131.

4. The modern approach, as required by section 11(7), is for the Court to consider all the circumstances of the cases. The Court is not required to proceed from the starting point of the original order but look at the matter afresh: Flavell v. Flavell [1997] 1 FLR 353 at 357B following Lewis v. Lewis [1977] 1 WLR 409 and Garner v. Garner [1992] 1 FLR 573.

5. Any change in any of the matters to which the Court was required to consider when making the original order was one of the circumstances to be considered.

…

8. At the same time the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order: Boylan v. Boylan [1988] FLR 282.”

40.  The legal principles arising therefrom have been clearly established in case law. The court is to approach the matter de novo, having regard to the current circumstances of the case as is reasonable, and to make an Order applying fairness as the yardstick.

41.  Furthermore, as this is an assessment of interim maintenance, it is trite law that the proper approach is on a broad brush basis as set out by the Hong Kong case presided by Hartmann JA in HJFG v KCY [2012] 1 HKLRD 95:

“38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a 'broad brush' basis.”

The Analysis the Variation of maintenance

Wife’s current expenses

42.  The wife set out her current expenses in her 8^th Affirmation, her general expenses were in line with what the court ordered under the MPS judgement. 

Item	MPS Order	W’s 8th Affirmation
Rent	29,000	28,000
Utilities	8,800	8,800
Food	7,700	7,700
Household Expenses	5,000	5,000
Insurance premier for Helper	100	5,600
Domestic Helper	5,500
TOTAL	$56,100	$55,100

43.  Her personal expenses are irrelevant for the purpose of this variation application as the court did not rule that the husband had to pay for her personal expenses.  But comparing her current personal expenses to that which she declared for her first MPS application, she had reduced her spending, and is likely to be living below the standard of living enjoyed during her marriage.  This is an expected outcome when a family is separated into two households, even if resources have remained the same. 

44.  As for the daughter’s expenses, there is a marginal increase from $10,500 as assessed by the court, to $12,300 (not $20,300 as stated by the husband as the judge ruled that each party should be responsible for their own entertainment and holidays costs for the daughter).

Item	MPS Order	W’s 8th Affirmation
School Fees	Paid by the Petitioner	Paid by the Petitioner
ECA	Paid by the Petitioner (Up to HK$2,000)	Paid by the Petitioner (Up to HK$2,000)
General Transport	2,000	3,000
School books and stationery	500	1,300
Medical / Dental	1,000	1,000
Clothing, accessories and utensils	4,000	4,000
Toiletries	1,000	1,000
Meals out of home	2,000	2,000
Entertainment*	3,000	3,000
Holidays*	5,000	5,000
TOTAL (not counting entertainment and holidays	10,500	12,300

45.  He challenged her expenses on rental, utilities, household and for the domestic helper.  I am of the view that these are misconceived; her expenses were assessed to be reasonable in the MPS judgement; even looking at this anew, I do not find these numbers to be so excessive to warrant a downward adjustment. 

46.  While the wife has submitted increased numbers for the daughter in her affirmation, she has explained the increased numbers for transport and for books and stationery.  I accept that as a growing child her expenses will no doubt increase, and the wife is not asking for any additional amounts. 

Husband ability to pay

47.  It appeared that the husband was making $250,000 in 2016, then $152,000 in 2017 and now $119,029 according to his affirmations filed under the present summons.

48.  A high-level review on the husband’s statements showed that he had been receiving a sum of US$12,250 since at least the beginning of the divorce, which appeared to have translated into a regular income of $96,163 from January 2019.  This seems to tally with his claim of income from a gold fund.  This amount appeared twice in the months of April and May 2019 and ceased in July 2019.  There is very little clarity on the source and details of this particular income.  The husband called it “gold fund income” and “income generated from unrefined gold trading business” in his January 2018 affirmation, “partnership income” in his answer to the first questionnaire, then “commission income” in his answer to the second and third questionnaire.  This income suffered the same fate as the wife’s income of HK$37,000, which appeared to be from the same source, and seemed to be caught in the same IRS investigation previously mentioned.  The wife claimed that her income of HK$37,000 is generated from a HK$2.34M in gold investment, it begs the question how much the husband has invested to generate this income.

49.  Husband claimed to be providing advisory services in mergers and acquisitions and that he had made two deals which brought in a total of US$35,000 / $274,400 in 2019, but no supporting evidence was given.

50.  Husband had approximately US$200,000 flowing through his personal account between October and December 2019, which was unexplained. 

51.  The husband claimed to have maxed out his ability to borrow but has not produced much evidence to this effect.  There is only an existing loan from HSBC, the repayment amount stated in his affirmation in opposition is $13,528.  To support his loan rejection allegation, he exhibited a Whatsapp messages on which he relied to say he could not borrow further.  It is my view that this so called “rejected loan application” does not come close to supporting his inability to borrow.  It is not clear with whom he was communicating in this conversation, there is no application form, there is no formal rejection letter, it is unclear what institution was involved, and the exchange was undated.  This is far from acceptable for a claim that he is not able to borrow further.

52.  He claimed to be $6.9M in debt owed under credit card, personal loan from HSBC and loans from friends, but provided no breakdown nor supporting information.  On the latter point, he produced 5 promissory notes:

Borrow date	From	Amount	Due date
4 May 2018	BP	$700,000	10 May 2019
4 May 2018	KCD	US$100,000	10 May 2019
15 August 2018	JB	US$150,000	14 August 2019
26 April 2019	KCD	US$150,000	10 May 2020
1 Sept 2019	GD	US$125,000	31 August 2020

53.  Of these loans, the following observations can be made:

a.  Repayment on three of these loan should have been due, but there is no evidence of repayment from his bank account;

b.  The loan in April 2019 was from one KCD, who was lending to the husband a second time without evidence of repayment of the previous debt;

c.  Husband claimed as expenses $19,979 being interest payment for personal loans, but there is no evidence of this;

I hold that these loans from friends may well be soft loans, and he has not yet exhausted all his sources of borrowing.

54.  From the husband’s affirmation, his expenses are as follows:

a.  General expenses: HK$78,490 inclusive of HK$52,432 for mortgage;

b.  Personal expenses: HK$335,529 inclusive of HK$52,500 interim maintenance and HK$219,114 for legal fees; and

c.  Child expenses: HK$13,120 inclusive of HK$9,240 for school fees

55.  Throughout the period from the last MPS hearing in August 2018 to his application herein, his apparent income was from his gold fund investments and his borrowings which he used to pay his legal fees of at least $3.2M (up to November 2019) and various expenses above.  It is unfortunate that paying his wife maintenance under the MPS Order is not considered a priority.  On his own admission, he was out of funds when he needed to pay for the corporate debenture of his daughter’s school, and he needed to scramble to borrow $140,000 from a friend in January 2020 to make the payment.

56.  The husband’s father passed away in September 2019, and he claimed to receive nothing except for approximately $378,519, and exhibited his father’s will dated June 2019 which gave everything to his mother and failing, to his only sister. As the only son, his name was not even mentioned in the Will.  The wife has responded to this with suspicion, and I do concede that this may warrant further investigation in due course. 

57.  I remain sceptical on the timing of the sale of his business to his father and closure of his businesses soon after the MPS Order, then followed by the cessation of the income payment from the gold investment where no evidence was proffered on the IRS investigation other than Whatsapp messages exchange.

58.  I conclude that the husband has more resources than what he claimed, and in particular, he has the ability to borrow further either from financial institutions, or from friends who were able to lend him money and did not demand repayment in accordance with the promissory note they signed. 

Conclusion

59.  In conclusion, I dismiss the wife’s application for litigation funding.

60.  I also rule that the maintenance payments under the MPS Order are not excessive, and the husband does have the ability to pay.  It follows that and the husband’s application to vary down the MPS Order is dismissed, and the previous MPS Order stands.

Costs

61.  As both applications have been dismissed, I made no Order as to cost for both cases.

Order

62.  Consequently, I shall make the following Orders:

a.  The Respondent’s Summons for litigation funding be dismissed;

b.  The Petitioner’s Summons for variation to the MPS Order made by HHJ Melloy on 24 October 2018 be dismissed;

c.  There be no Order as to costs for both Summons.