CHOW SO KAM LIN v. CHOW SHU SUN

IN THE COURT OF APPEAL

1985, No.164

(Civil)

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V. - P. :

1. This appeal concerned the jurisdiction of a judge in divorce proceedings to make an order for ancillary relief where no application for that particular relief was properly before the court.

2. The petitioning Wife by her petition sought not only the dissolution of the marriage but also orders for periodical payments for the maintenance of herself and of the four children of the marriage. Subsequently she gave notice of application for an order for payment of a lump sum of $500,000 and an order for periodical payments of $3,000 a month for the maintenance of the children. No leave of the court was obtained pursuant to r. 68(2)(a) to make this claim for further relief. The Wife filed affidavits in which she expressly referred to her further claims and gave evidence in support of them. Part of her evidence was that she proposed to move out of the matrimonial home with the children "as I cannot get along with my mother-in-law who also stays in the matrimonial home". The Husband filed very full affidavits in reply.

3. The Application for financial provision came on for hearing on 19th June 1985 before H.H. Judge O'Dea. The Husband was cross-examined upon his affidavits and the judge was addressed by the solicitor for each of the parties. We were told that the judge then indicated that in all the circumstances this was not a proper case for a lump sum order but that, as the Wife and the children, whom he was going to deliver into the custody of his Wife, would need a roof over their heads, he was going to make an order for the transfer by the Husband to the Wife of the matrimonial home. However, as that property was mortgaged, he adjourned the case for the solicitors to attempt to agree a detailed plan for repayment of the loans under the mortgage for inclusion in the transfer order.

4. The solicitor for the Husband was under the impression that the judge had made an order on 19th June, and on 3rd July the Husband lodged an application for leave to appeal against that supposed order on the ground that it was made without jurisdiction. Before that application for leave to appeal was heard, the judge communicated with the parties in relation to the terms to be included in the transfer order to provide for repayment of the loans, and he then indicated that he had made no order at all on 19th June The parties came before him again on 17th July and made the order now appealed against, including conditions for paying off the existing mortgage.

5. The contention of Mr. Patrick Chan for the Husband was that, in the absence of leave to make application for further relief as set out in the Notice of Application under r.68, the only application properly before the judge on 19th June was the application for periodical payments made in the Petition. Therefore, he said, the order for transfer of property was made without jurisdiction. He relied upon Wilson v. Wilson 1976 Fam. 142, where the circumstances were somewhat similar. As here the petitioner presented a petition in which she prayed for periodical payments for herself and for two of the children of the marriage. Subsequently she applied for periodical payments, a lump sum order and a transfer of property order. When the matter came before the judge it was pointed out that no leave had been obtained for the application for further relief and that application was not proceeded with. However, the judge took the view that it was open to him upon the application in the petition for periodical payments to make an order for a lump sum payment. The Court of Appeal held that he had no such jurisdiction, and the court distinguished Doherty v Doherty 1976 Fam. 71 where it was held, in the words of Cairns, L. J.

"that as between a lump sum order under s.23 and a property adjustment order under s.24 the court had jurisdiction to make such order as was appropriate under one or other of those forms, whether or not it was the form in which the relief had been applied for".

6. As it seemed to me, the question we had to ask was whether in the present case there, was any question of the Husband's "being lulled into a false sense of security". At first sight it might have seemed that this case came within the principle of Doherty v Doherty, because the longest affidavit filed by the Husband gave the strong impression that it was designed to meet a claim for payment of a lump sum, and it was not clear to me what further evidence he could have adduced had he expressly directed his mind to a claim for a transfer of property. On the other hand, on a strict view this was a Wilson v Wilson case, even though a lump sum claim appeared to have been within the contemplation of the Husband. It was significant that by indicating her intention to move out of the matrimonial home the Wife had implicitly renounced any claim to that property. Mr. Chan assured us from the Bar that, had a claim for the transfer of property (or for a lump sum) been properly before the court, the case would have proceeded differently. I though we must accept his assurance. It followed that I could not accept Miss Yew's argument that there had been no possibility of prejudice to the Husband and that it would be pointless to allow this appeal since any new trial would inevitably result in the same order as that which was made by Judge O'Dea.

7. For these reasons I thought that the appeal should be allowed and the case remitted to the District Court for a new trial of the application for periodical payments, it being open to the Wife, if so advised, to apply for leave to make application for other relief.

Yang, J. A.:

8. I agreed.

Fuad, J. A. :

9. I also agreed.

2nd February 1986