K v. K

CACV 80/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 80 OF 2010

(ON APPEAL FROM HCMC NO. 4 OF 2010

(TRANSFERRED FROM FCMC NO. 6100 OF 2006))

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J U D G M E N T

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Hon Rogers VP:

1.  This, we are reliably informed, is an unusual appeal.  It is an appeal in respect of maintenance pending suit which, we are told thankfully, is a rare occurrence.  The history of the matter will not be dealt with in full in this decision because I consider it is unnecessary.  But it is sufficient to say that his case has started in 2006 and, I will say at the outset, that it is high time that the issues in this case came to a full trial and the interlocutory skirmishing ceased.

2.  There has been a great deal of time wasted, it seems to me in this case, in the family dispute resolution proceedings which came to a halt at the end of last year, but it has still taken nine months to have a pre-trial review fixed.  Why that should happen I cannot understand.  Trials should take place within nine months of proceedings starting, not pre-trial reviews within nine months of the dispute resolution failing.

3.  That said, the appeal is against the order made by the judge below and being an appeal on a matter of discretion, the powers of this court to interfere are strictly limited.

4.  Ms Yip has put the case on the basis that the judgment was clearly wrong.  Amongst other things, she has pointed out - and very validly - that the maintenance pending suit has gone on for so long, much longer than it should have done and much longer than would be anticipated in normal cases, but that is something which is difficult for this court to do anything about.

5.  The history of the matter is that when the matter for maintenance pending suit first came before a judge, the husband was gainfully employed in family companies and, as part of that, he was a director of companies in the United States which are undoubtedly substantial companies.  In addition, there were a large number of shares in his name.

6.  The matter came before the judge on this occasion, which was in October of last year, because the husband said that he was no longer a director of the relevant company or companies and he no longer had the shares.  He is no longer enjoying the income he used to.  What was said was that the shares had been taken back by the father, who appears to be the patriarch of the family.  The husband says that he was removed from being a director of the American companies because his presence as a director was causing the companies considerable difficulties because of the discovery applications which had been made in the United States in support of these proceedings. 

7.  As I have indicated in the course of argument, it is a very difficult thing and something which courts have to be extremely wary about to disbelieve a person on his affidavit or affirmation.  Just the same as the husband is highly suspicious of transactions which were conducted in relation to the assets which had been in the wife’s name at what he says was a convenient time in relation to this litigation, so the wife, for her part, says that the husband’s loss of his directorship, loss of his employment and loss of his shares was only as a result of these proceedings and is really a façade.  This court cannot decide these matters on paper.  Whatever suspicions the court may have, the court has to proceed on the basis that the party may be right or may be wrong.

8.  It seems to me, in this case, that the simple point is this, that the marriage lasted for approximately 24 years on one basis that the parties lived comfortably, to say the least.  Their expenses were perhaps not excessive but they could certainly spend what they wanted to within reason, and it was on that basis that the maintenance pending suit was fixed.

9.  If one assumes that the assets which were previously in the husband’s name in fact belonged to the father and the couple were living at the rate they did on the basis of the father’s say so for the last 24 years, to continue the maintenance pending suit on the basis of which it now is for a temporary period until this case can come to trial, seems to me to be no more than continuing the marriage or continuing the financial characteristics of the marriage for that period of time.  It seems to me that that would be the appropriate course given the present circumstances.

10.  I have had some cause to consider whether this really complies fully with the principles which appear to be established - and I refer to the case of TL v MN & Ors (Ancillary relief:claim against assets of extended family) [2005] EWHC2860 and it is also reported in [2006] 1FLR 1263.

11.  In paragraph 124 of the judgment, the Deputy High Court Judge Mostyn Q.C., as he then was, set out the principles which he said were to be derived from the cases.  The fifth principle, appears to me to be apposite or pertinent to this case.  He said:

“Where the paying party has historically been supported through the bounty of an outsider, and where the pair is asserting that the bounty had been curtailed, but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty at least until final trial.”

He derives that proposition from the case of M v M [2002] 2 FLR, 123.  The matter which causes me some pause for consideration is the suggestion that the position of the outsider might be ambiguous or unclear.  Reading the petitioner’s father’s evidence and taking it at its face value, it would be difficult to say that his position was ambiguous or unclear.  He goes so far as to say that he would be prepared to cut his son off in order to spite his former daughter-in-law.  Now, that may well be the case and time will only tell whether that will happen.

12.  Nevertheless, it seems to me that the matter should continue as it is but I do consider that this matter should come to trial as quickly as possible.  This court has been informed that there is a pre-trial review to take place towards the end of September.  It is fervently hoped that that pre-trial review will order that this matter come on for trial without any further delay.  It seems to me that the parties have sufficient evidence and they are unlikely to get any more evidence which would be of any further use to them.

13.  Before concluding, I wish to say something about the costs provision which had been included as part of the maintenance.  It seems to me that what was ordered was that there should be a payment of $50,000 per month pending the family dispute resolution proceedings.  That has now come to an end but I consider it would be wrong, in principle, simply to order a set amount per month.

14.  It seems to me that the appropriate course would be for a court to be told what the foreseeable anticipated costs are likely to be.  That can be done in much the same way as the detail in which a court is told when security for costs is asked for.  In other words, not an elaborate bill of costs, but a simple back of the envelope type bill of costs itemising out what counsel’s fees are likely to be and what solicitor’s expenses are likely to be.  That can be done in a very simply sort of way but not in a complicated sort of way.  Then the court should try and make the appropriate order.  If it is to be on a monthly basis, the order should come to an end when it is foreseen that the expenses would be fully covered.

15.  The other matter which causes me some concern is that I have been informed that hitherto parties have been sensible, in the sense that when orders for maintenance have included orders for maintenance pending suit although orders for costs are made on a continuous basis, they are not taxed until the matter comes to an end.  But it seems to me that if costs of the maintenance pending suit is calculated on the basis of an allowance being made for legal costs, then any orders that are made as to costs as the matter proceeds must take that into account.  Or alternatively, the order of the maintenance must take the orders which are made on an on-going basis into account and it is not sufficient simply to leave it to the good nature of the parties not to seek to enforce an order for costs whilst still receiving a costs supplement as part of the maintenance.  I hasten to say that that has not happened in this case but it seems to me that it would be an obvious thing that that could happen and the court should be wary of it.

Hon Le Pichon JA:

16.  I agree.