MALCOLM ERNEST GRAY v. DIANE CARY BARBER SERVINO

CACV 121/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 121 OF 2000

(ON APPEAL FROM FCMC 6831/1991)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal under section 22(1)(a) of the Court of Final Appeal Ordinance. The application is in respect of a judgment of this Court handed down on 23 January of this year. The application is made by Mr Gray on the basis that there is outstanding still a sum of approximately US$145,000 under a maintenance agreement for a lump sum payment to his former wife, payable by instalments.

2. The subject of Mr Gray's appeal before this Court was two-fold. First of all he sought to set aside the original agreement which he made with his former wife, which had been embodied in the order of the Court, on the basis that the agreement had been arrived at through duress. The second part of his application was that the lump sum payment should, in any event, be reduced because of a change of circumstances. It should also be mentioned that the matter before the Court was also an appeal from a decision on the judgment summons which had been taken out by the former wife for non-payment of the maintenance.

3. Two points have been taken in respect of the application for leave to appeal. The first is that the decision of this Court in respect of Mr Gray's application was not a final judgment. The second is that the appeal did not lie because of the wording of subsection 22(1)(a), in that the amount involved was not liquidated and therefore did not fall within the words "where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more".

4. Dealing with those two points in order, in my view, the decision of this Court was a final order or judgment. Mr Gray's application to set aside the agreement, and the order of the Court, on the basis that it had been obtained by duress was, in effect, an all-or-nothing application. If Mr Gray succeeded in showing that there had been duress, then the agreement fell to be set aside and that would be the end of the matter. Whether or not any payments which Mr Gray had already made would be recoverable was another matter, but there was US$145,000 in dispute.

5. The point taken by Mr Bullett, on behalf of the respondent, is that this is an order in matrimonial proceedings and, under section 11 of the Matrimonial Proceedings and Property Ordinance, the order was always subject to review. That is as may be, but once the Court has made an order for the payment of a lump sum, or has ordered that a lump say is payable or not payable, that is a final order which decides the rights between the parties. So in my view, the first point fails.

6. One then turns to the second point which was taken. That is whether the appeal involves, directly or indirectly, some question to or respecting property, or some civil right amounting to or of the value of $1,000,000 or more. In my view, the question as to whether the original agreement should be set aside for duress does involve a civil right. It is the right of the respondent to receive the lump sum maintenance payment, albeit by instalments. The question is in respect of that civil right and, since the amount is of the value of $1,000,000 or more, in my view, it falls within the provision of section 22(1)(a).

7. So on the basis simply of Mr Gray's application, based upon his application to set aside on the basis of duress, in my view, his appeal to the Court of Final Appeal lies as of right and it is not a matter of discretion for this Court . Therefore, this Court should give leave to appeal.

Hon. Keith JA:

8. I agree.

Hon. Le Pichon JA:

9. I agree.