RVCM v. BFM also known as BFD

FCMC 6519/2012

[2025] HKFC 74

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6519 OF 2012

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REASONS FOR DECISION

( Relief from Sanction )

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1.  At the hearing today of the Respondent wife’s (“W”) Summons of 11 March 2025 which asks for Relief from Sanction of Orders I made on 12 Feb 2025 (“February 2025 Order”), I dismissed her application after hearing the parties’ submissions. Herewith the reasons for the decision.

2.  In the February 2025 Order, I made the following three Unless Orders:

a.  Unless W files her Narrative Affidavit by 18 February 2025, her ancillary relief claim will be dismissed.

b.  Unless W files the valuation of the pieces of land declared in the parties’ respective Form E by 4 March 2025, her ancillary relief claim will be dismissed.

c.  Unless W files her Form E by 19 March 2025, her ancillary relief claim will be dismissed.

At the hearing, the W raised no issues with these deadlines.

3.  Nothing was filed on 18 February 2025, her application for ancillary relief is therefore dismissed.

4.  Three days after on 21 February 2025, W made an application for time extension for complying with the February 2025 Order, on the basis that she needs to copy the Petitioner husband’s (“H”) Form E from the Registry to peruse before complying with the February 2025 Order. W returned only on 26 February 2025 to file this application and her time extension summons was set down to be returnable on 11 March 2025 before Master S Ho.

5.  Nothing was filed on 4 March 2025. Master Ho on 11 March 2025 explains that the Unless Orders has taken effect automatically, her time extension application was dismissed.

6.  The reasons cited in support of her application are as follows:

•  The time given to file was very short

•  Form E had not been served, and I needed to have full information before filing

•  Form E was requested upon receiving the Court Order (received 5/6 days after the hearing)

•  Form E was copied by Court staff after a few days

•  Not enough time to file between this and deadline of Court Order.

7.  First, to deal with these bases from the W:

a.  W says in Court today that the first point is self-explanatory. But she raised no objection on 12 February 2025 about the time frame given to her. By that date, H has already complied with my Order on 20 May 2024 (which also applies to her) and filed his Narrative affidavit on 10 September 2024, W did not file then. She also failed to comply with my Order on 17 October 2024 to file her narrative affidavit by 24 October 2024. Which is why an Unless Order was made on 12 February 2025, which she has then failed to comply in time.

b.  I have no evidence whether H’s Form E (filed on 7 August 2024) was served or not, but clearly this document has been accessible from the Registry since that date; and W has demonstrated that she knows how to make copies from the Registry. There were two subsequent hearings after August 2024, and she did not raise the issue that she was not served with he Form E. Neither is it clear why she felt she needed to peruse H’s Form E before she can complete hers or prepare her narrative affidavit. W says at the hearing today that she needs to see H’s Form E so as to complete the last subsection in S.7 of the Ordinance (Cap 192 MPPO). Both these documents relate to her position, her case and her claim. Even if she has questions for the H about what he has declared, she can always ask H to answer a questionnaire from her. She is clearly aware of this process as she has had previous experience of answering H’s questionnaire in August 2023. It is not accepted that she needs to see the H’s Form E before she can complete her own or prepare her narrative affidavit.

c.  I do not accept this basis. She was present at the February 2025 hearing, there is no reason why she needs to wait to receive the Court Order before taking any action.

d.  W in Court today says that she was told by the Registry staff that the file needs to be requested from Court, and she was called “after a few days or a week to say that the Registry has made copies”; and then she “came to pick after a few days”, and that she needs to go through the documents. She was not able to say clearly what the dates were.

According to the Court’s movement record, W requested copies of the H’s Form E on 21 February 2025 (Friday, which is also the date of her time extension application), the file was sent to the Registry on the same day. W was informed on 24 February 2025 (Monday) that the documents were ready for collection, and the movement record shows that the files were returned to the Court from Registry on that day. At that point in time, her own Form E was not due until 4 March 2025. In any event, if she felt she needed H’s Form E to prepare her own documentation (which is not accepted), she could have gone to the Registry after the hearing on 12 February 2025 to obtain the same, but she waited until 21 February to do so, by which time her first deadline has lapsed.

e.  She seems to say here that she needed to wait for Registry staff to copy documents and could not meet the deadline. It is clear that the Registry has made available her requested documents the working day following her request, which means if she has asked promptly on 12 February 2025, she would have gotten the copies by 13 February 2025, and in good time to meet the first deadline on 18 February as these dates straddle a weekend.

She says in Court today that this timing is also amidst her other hearing in a criminal proceeding, which she needs to attend on 19 March 2025. Based on the document she submits on this criminal proceeding, the hearing on 19 March 2025 was a call over clearing in Shatin, considering the date and the nature of this hearing, it is not accepted that this could get in the way of her compliance with the February 2025 Order.

Relevant Proceedings History

8.  This case which started in 2012, has been dragging on for a long time even taking into account the disruption caused by the Covid pandemic. Decree Absolute was granted in July 2020. After the failed FDR on 8 June 2021, various orders had been made for parties to file documents to take this on to trial. HHJ CK Chan first set down this matter on 24 September 2021 for trial on 27-28 July 2022; but it was apparent at the PTR on 13 June 2022, that nothing was filed as per his Order, except for a questionnaire from H on 6 October 2021, which was never answered by W.

9.  There were Orders for parties to submit questionnaires, H did on 12 May 2021 and 6 October 2021. W never responded to the first one and only by Order of Court on 13 December 2022, did she eventually answer H’s latter questionnaire 9 months after in August 2023, which means her Answers was filed 23 months after H’s Questionnaire. W has not put forward any questionnaires despite being given at least three opportunities to do so.

10.  I made an Order on 13 December 2022 for W to provide full attachments to her Form E as the one she filed on 28 June 2022 was wholly insufficient, she eventually did this on 30 August 2023.

11.  W has also been ordered to provide valuation of land in Africa by my Order dated 13 December 2022, despite she said she had done so, there was nothing filed with the Court. These proceedings were then adjourned pending compliance of Court Orders, and were eventually restored in May 2024. On 17 October 2024, an Order was made for her to retrieve these valuations, which she said she had, and for her to refile again by the end of the day; but this was not done. This was the reason why an Unless Order for the filing of the valuation of the land was made in the February 2025 Order, despite the fact that she said she had these documents, she missed the deadline on 4 March 2025, and did not produce the valuations until 8 April 2025. However, this was not filed but came under a short note sent to Court, H did not receive this.

12.  W has failed to comply with Orders made since the failed FDR (from September 2021) for Narrative Affidavit 6 times. She eventually filed her Narrative affidavit yesterday on 14 April at 5:21 pm.

13.  As for her Form E, she did not file anything on 19 March per the February 2025 Order. However, she did also file her Form E yesterday on 14 April at the Registry at 5:21 pm.

14.  Neither of these documents were served on H, and H only knew about these today at the hearing. H reminds me in his response today that such is the pattern of service in this matter, that documents were never exchanged / served in accordance with Court Order. I agree that this is the impression of the Court.

Relief from Sanction

15.  Under Order 2 Rule 4 reads:

“Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction with 14 days of the failure.”

W applies for relief from sanction on 11 March, which is more than 14 days after her non-compliance on 18 February 2025.

16.  The factors I have to take into consideration in such an application is in Order 2 Rule 5(1), these are as follows, together with my application to this case:

(a)  the interests of the administration of justice

The multiple delay caused by W in this matter warrants no further indulgence from the Court.

(b)  whether the application for relief has been made promptly

Paragraph 15 above refers, the application for Relief from sanction should have taken place promptly after the first deadline have passed, this application was made 11 March 2025.

W says in Court today, that she applied when her time extension application was dismissed, and Master Ho mentioned the remedy of application for relief from sanction. Clearly, she has not attempted to find out prior what are the consequences of her non-action by seeking legal advice or do her own research.

(c)  whether the failure to comply was intentional

Throughout these proceedings since the PTR, W has proceeded at the pace she chooses, and in constant contempt with her non-compliance with Court Orders; I am of the view that W’s conduct has been contumacious.

(d)  whether there is a good explanation for the failure to comply

I have dealt with her explanations above, and take the view that they do not support this application.

(e)  the extent to which the party in default has complied with other rules and court orders

This point was also covered in this Judgment.

(f)  whether the failure to comply was caused by the party in default or his legal representative

The W is acting in person.

(g)  in the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance

W is a teacher at a ESF school by profession, the Orders made were clear, and no question was raised. The filing of a Form E and affidavits are well within her capability, and she has done so in the past; and as can be seen from her filing of both of these documents yesterday, she is fully able to comply without legal assistance.

(h)  whether the trial date or the likely trial date can still be met if relief is granted

No trial dates have been set.

(i)  the effect which the failure to comply had on each party

H has duly complied with the Orders I have made since the proceedings were restored, updated Form E, his Narrative Affidavit and an affidavit regarding the land and legal proceedings in Africa were filed by September 2024. It is unfair to H for W to request and obtain continuous indulgence from this Court to move at her preferred pace.

W has “benefited” from substantial extension in time due to her conduct, which should no longer be condoned.

(j)  the effect which the granting of relief would have on each party

This is in effect the last point and I will not repeat here.

17.  Order 2, Rule 5(2) states that an application for relief must be supported by evidence, W has provided no evidence in her supporting affidavit.

Conclusion

18.  Taking regard all the factors, I take the view that W should not be granted any relief from the sanctions. Her last-ditch efforts to remedy her position came, apparently in the face of her application being heard today, only yesterday and 9 mins before the Registry closed.

19.  I have also considered whether W’s conduct can be dealt with by an indemnity costs order against her. But during these proceedings, W has ignored a simple Court Order (dated 20 May 2024) to equally share the costs of photocopying charges of her Form E which was not properly served on H. According to H, she just refused to pay, and she did not deny this. I have no assurance that this would have any effect on W’s recalcitrant attitude and conduct.

20.  I therefore dismiss the W’s application for relief against sanction. Her ancillary relief claims in these proceedings remain dismissed.

Costs

21.  There is no reason why costs should not follow the event, therefore I make the Order that the Costs of this application be to the Petitioner husband. This to be a Cost Order nisi to be made absolute 14 days hereof.