KKSR v. CLH

FCMC 13299/2019

[2021] HKFC 213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13299 OF 2019

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J U D G M E N T

(Vacating registration of Form A)

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Application

1.  This Judgment is concerned with the Petitioner Husband (H)’s summons dated 4 February 2021 for an order for vacating the registration of the Notice of Application for Ancillary Relief (Form A)  at the Land Registry against the following properties (adopting the description used in Respondent Wife (W)’s Skeleton Submission):

(1)  Caribbean Coast Carpark No. C25;

(2)  Seaview Carpark No. D195;

(3)  Workshop C25.

(collectively “the Subject Properties’)

2.  The bulk of the matrimonial assets includes 6 Hong Kong properties, 1 PRC property, two Philippines properties, two Japan properties, 1 Cambodia property and 1 Thailand property. The Subject Properties and all overseas properties are registered in H’s name, except that the Cambodia property is registered in the joint name of the parties and the PRC property is in W’s name. The remaining three residential properties in Hong Kong are registered in W’s sole name.

H’s Case

3.  The grounds upon which H relies in support of his application can be summarised as follows:

(1)  He is a retiree and is living in a hotel;

(2)  He needs a home and intends to purchase an apartment in Hong Kong;

(3)  He has not had overnight access to the daughter, born in 2009 and adopted by the parties in 2010, since December 2019. With his own apartment, he can have overnight access to the daughter of the family;

(4)  He plans to sell the Subject Properties to fund the intended purchase;

(5)  According to him, the net value of W’s assets is HK$30,765,442[1];

(6)  The total value of the Subject Properties is only about HK$4,200,000 that is merely a fraction of W’s assets;

(7)  W’s case on how much cash H has in hand or that around HK$6 million ought to be added back to H is hotly disputed.

W’s Case

4.  In opposition, W asserts that:

(1)  Allowing H’s application will in effect be granting an interim sale of property order which the court neither has statutory or inherent jurisdiction to do so, citing WHWV v WECH [2020] 5 HKLRD 408 ;

(2)  H’s plan to purchase an apartment of about 1,000 square ft and be valued at about HK$12,000,000 is unnecessary, unreasonable and unrealistic;

(3)  H’s failure in providing basic information, such as timeline, the identity of targeted property, how the purchase money be paid for, e.g. in full or by instalments, any mortgage loan etc., suggests that H does not have an actual, real or genuine plan.  That only should be fatal to this application;

(4)  The total value of the overseas properties that he holds being estimated at HK$5,435,000, together with his cash in hand, H can amass HK$7,636,000 that is more than sufficient for him to purchase a small apartment in Hong Kong. Therefore, H fails to show a good cause;

(5)  From the Table of Agreed/Disputed Assets and Liabilities W produced[2] (W’s Table), it can be seen that around HK$6 million ought to be added back to H. W’s Table shows H has a much larger holding of the matrimonial pot than he represents to the court.

Legal Principles

5.  Section 19 of the Land Registration Ordinance, Cap. 128 provides that the court or judge may on the determination of the lis pendens, or during the pendency thereof, where the said court or judge is satisfied that the litigation is not prosecuted bona fide, or for other good cause shown, make an order for vacating the registration in the Land Registry of such lis pendens without the consent of the part who registered it.

My view

6.  My view is as follows:

(1)  The first and foremost issue falls to be determined is whether good cause is shown in the present application;

(2)  In the Social Investigation Report dated 19 February 2020, the case social worker recommended care and control of the daughter to W, and reasonable and flexible access to H to preserve the daughter and father relationship and to strengthen their affection. By the consent order dated 30 June 2020, joint custody of the daughter was granted to the parties, with care and control to the W and reasonable access including stay access to H. I accept that H’s desire to have stay access is genuine, real and reasonable;

(3)  It being undisputed or indisputable that the parties lived comfortably during marriage, I accept that H needs to have a home in Hong Kong for himself and the daughter;

(4)  I am aware that the issue on the parties’ respective financial positions remains a continuing source of dispute that will be sorted out at the later stages of these proceedings.

(5)  However, I regard that he can make do with e.g. renting an apartment or as suggested by W purchasing a smaller apartment for the time being;

(6)  Looking at the matter in the round, I do not accept that good cause is shown for the purpose of this application.

Disposal

7.  It is ordered that the summons dated 4 February 2021 be dismissed. Solicitors for W do forthwith draw up, file and serve this order.

Costs

8.  Apparently, W can be regarded as the successful party. I make an order nisi that H do pay W the costs of this application, including reserved costs. The order nisi becomes absolute 14 days after this order is made unless a party has applied to the court for varying the order.