A v. B

HCMC 2/2023

[2025] HKCFI 1060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO 2 OF 2023

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DECISION

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A.  INTRODUCTION

1.  The petitioner wife (“W”) commenced this matrimonial case in the Family Court in September 2016 against the respondent husband (“H”).

2.  H started an asset management company in                           in             (“AB Limited”). Subsequently, he set up an offshore fund management company in            (“CD Limited”). His career has proved to be very successful, and as a result H has accumulated his wealth.

3.  There is little doubt that this is a big money case. As a result, this case was transferred to the Court of First Instance by an order dated 28 April 2023.

4.  It cannot be disputed that CD Limited together with its subsidiaries (including AB Limited) (“the Business”) must be the focus of the forthcoming ancillary relief trial (“the AR Trial”) which has been scheduled to commence on 9 April 2025.

5.  This Decision deals with the summons taken out by W on 28 January 2025 (“the Specific Discovery Summons”), pursuant to which she applies, inter alia, for an order of production of the following documents against H:

“1(i) Statements, advices, notes and other documentary records identifying all payments (excluding his monthly salary) and gains including by way of account credits, the grant of units and interests in Funds (including the Mandatory Provident Fund) and other securities, accumulated interest, reinvestments, dividends and other forms and amounts of distributions (together, the ‘returns’) from [CD Limited] itself, [CD Funds] and each other investment paid or credited to him or to his benefit since 1^st April 2018 up to 31^st December 2024, including the documents set out in Schedules A & B annexed [to the Specific Discovery Summons] but save as disclosed hitherto; and

1(ii) The current or last known whereabouts of those returns and their proceeds; and

1(iii) A complete and unredacted set of [H]’s XXX tax returns and the documentary attachments thereto from 1^st April 2018 to date and of the tax calculations and the documents evidencing the gains, prospective gains and income set out therein (or identifying each where disclosed pursuant to paragraph 1(i) above; and

1(iv) Documents issued by [CD Limited] and each of [CD Limited] and other Funds in which [H] holds interests setting out the current terms of redemption of such interests and any restrictions thereon, including by date and/or notice required.”

6.  As indicated in paragraph 1(i) of the Specific Discovery Summons, 2 schedules have been attached thereto. Schedule A contains 21 items, whereas Schedule B includes 131 items. At the time when W lodged her Reply Submissions, she has cut down the total number of items requested to 58 (“the Requested Documents”).

B.  LEGAL PRINCIPLES

B1.  General principles on specific discovery application

7.  The Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”) are applicable to matrimonial proceedings by virtue of rule 3 of the Matrimonial Causes Rules (Cap.179A) which reads:

“Subject to the provisions of these rules and of any enactment, the Rules of the High Court (Cap. 4 sub. leg. A) shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Court of First Instance or in the District Court.”

8.  Specific discovery applications are governed by Order 24 rule 7 of the RHC which stipulates that:

“(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

(2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.”

9.  It can be seen from Order 24 rule 7(1) that the Court’s discretion under Order 24 rule 7 has to be exercised with rule 8 in mind. Order 24 rule 8(1) of the RHC states that:

“On the hearing of an application for an order under rule 3 or 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

10.  The guiding principles in relation to specific discovery applications are trite, and have been set out by the Court of Appeal in Paul’s Model Art GMBH & Co KG v U.T. Limited & Others [2006] 1 HKC 238 at [24]:

“The relevant principles for specific discovery under Order 24 Rule 7 of the Rules of the High Court can be summarised as follows :

(1) There is no jurisdiction to make an order under RSC, O.24, r.7, for the production of documents unless

(a) there is sufficient evidence that the documents exist which the other party has not disclosed;

(b) the document or documents relate to matters in issue in the action;

(c) there is sufficient evidence that the document is in the possession, custody or power of the other party.

(2) When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure.

(3) The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure. (See : Berkeley Administration v. McCelland [1990] F.S.R. 381)”

11.  Under Order 24 rule 7(3), it is a mandatory requirement for the applicant to depose, among other things, his/her belief that the respondent has, or at some time had, in his/her possession, custody or power the documents, or class of documents sought. While the rule has not expressly said so in the afore-mentioned paragraph, it goes without saying that the applicant is also required to state his/her belief that the documents in question exist. However, as explained by the Court of Appeal in Paul’s Model Art GMBH & Co KG (supra), a mere assertion made in the supporting affidavit is not enough. There should also be “sufficient evidence” (at [24(1)]). That means the applicant should also put forward sufficient ground(s) in support of his/her belief.

12.  It should also be reiterated that the application under Order 24 rule 7 is for disclosure of documents which are already in existence. That is the reason why one of the requirements which the applicant must meet is to establish a prima facie case that the documents exist.

13.  To put it in another way, the purpose of this application is not to get an order that the respondent do create a document which contains certain information which the applicant wants to obtain. Therefore, when the applicant makes a specific discovery application, it is important that he/she sets out clearly what document(s) he/she is asking for, rather than the information which he/she would like to get. Hence, what needs to be “identified with precision” is the document rather than the information contained in such a document.

14.  In the context of a claim for ancillary relief, applications for specific discovery should not be mixed up with the requests made under questionnaires under which a party may ask for not only documents but also information.

B2.  Timing of the application

15.  Although Order 24 rule 7(1) of the RHC provides that the Court may order discovery of particular documents “at any time”, delay in making the application may have an important bearing on the Court’s exercise of discretion. In the case where the application is late, what was said by Mimmie Chan J in Converge Design and Construction Company Limited v Mount Kelly International Limited [2020] HKCFI 2433 is relevant:

“2. The courts have emphasized on repeated occasions that CJR is about early preparation for trial, in order to achieve the objectives of the Rules. It needs no further reminder that delay itself is a ground to refuse a late application, either for discovery or for the introduction of new pleadings and evidence, when trial is imminent. The onus is on the applicant to justify its delay and to show good reason for leave to be granted. Whilst delay is to be weighed against the probative value and relevance of the pleadings and the evidence sought to be introduced, it need not be emphasized further that the primary aim in the Court’s exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Such just resolution of disputes requires due consideration of the time occasioned by last minute applications to introduce amendments to the pleadings and/or evidence on the eve of trial. Prejudice is inevitably caused, in the disruptions in the preparation for trial, the need to consider the new evidence and the need to respond thereto, coupled with the need to locate witnesses at the last minute to consider and if necessary to respond to the new evidence, and the last minute distraction from the proper focus and priority of the due preparation for trial. This is actual prejudice.

[…]

9. As for lists of documents and discovery made on the eve of trial, it is for the litigant giving discovery at the eleventh hour to establish why the Court should exercise its discretion to permit the late discovery (Hong Lok School Limited v Chow Sai Yiu, HCA 17139/1999, 7 July 2003 and Big Island Construction (HK) Limited v Wu Yi Development Company Limited, HCA 1957/2005, 22 February 2010). Absent a good and credible explanation, by affidavit, as to why the document was not disclosed earlier, the application may be refused on the ground of delay alone. Even if there are documents hitherto disclosed, but were not referred to in the witness statements filed for trial, there should be affidavit evidence as to the use proposed to be made of the documents in question, the provenance and the maker of the document, its relevance to the issues before the Court, and the availability or otherwise of the maker of the document to attend trial for cross-examination. Clearly, this is all to ensure that the opponent in the litigation can fairly prepare for trial, and to enable the Court to properly exercise its discretion in dealing with objections from the opponent.”

16.  Although [9] in Converge Design and Construction Company Limited (supra) dealt with the situation of “giving discovery” rather than “asking for discovery”, I am of the view that the same spirit should be applicable. In other words, absent a good and credible explanation by affidavit as to why the documents were not requested for earlier, the application may be refused on the ground of delay alone. This is so even if the documents requested for are helpful for the just resolution of disputes in accordance with the substantive right of the parties. The Court has to do a balancing exercise, taking into account all the circumstances including the prejudice which may be caused to the other side. For that matter, the presence or otherwise of prejudice is just one of the factors to be considered, but not necessarily decisive. In this regard, what Coleman J said in Chu Hsiao-Chiu alias Chu Tony v Ma Jinrui & Another [2020] HKCFI 942 should also be borne in mind:

“18. It is well-established in the ‘post-CJR era’ that the underlying objectives emphasise not only substantive but also procedural fairness. Therefore, late or last-minute applications trigger the Court’s expectation that the applicant will provide a full account of the lateness of the application, and full justification as to why the application should be entertained at all at such a late stage.

19. There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid. Courts should take into account that there may be an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Further, the vacation or adjournment of the hearing occasioned by last-minute applications may mean the loss of the hearing day which could have benefited other litigants, and inefficiencies in the use of Court time, which is a public resource. Hence, late applications can be dismissed on the basis of lateness alone.

20. Further, whilst the ultimate concern of the court is to achieve a just resolution of the case, it does not mean that a party should be permitted to raise any arguable case at any point in the proceedings, simply on payment of costs. If a party has been afforded a reasonable opportunity to advance its case, the just resolution of the case does not require that he should be allowed a further opportunity in spite of his own inordinate and inexcusable delay. Essentially, the applicant making a late application is extremely unlikely to be able to rely upon self-induced prejudice.”

17.  Hence, there is no hard and fast rule. The ultimate test is what is just in the circumstances of the particular case before the Court.

18.  Counsel for W have specifically reminded this Court that the Court’s overriding objective is to secure the just resolution of disputes in accordance with the substantive rights of the parties: Order 1A rule 2(2) of the RHC, and that the Family Court has a quasi-inquisitorial role in assessing the section 7 MPPO factors. These are of course trite. However, the fact that the Family Court (and the Court of First Instance hearing Matrimonial Cases) having an inquisitorial role does not mean that the Court has to allow late evidence to be adduced at all costs. In my view, the approaches explained in cases such as Converge Design and Construction Company Limited (supra) and Chu Hsiao-Chiu alias Chu Tony (supra) are equally applicable to such cases.

C.  DISCUSSION

C1.  Delay

19.  As I mentioned at the beginning of this Decision, the AR Trial has been scheduled to commence on 9 April 2025, which is only around 1 month away. By virtue of the directions given on 5 September 2023, parties’ Open Financial Proposals and Opening Submissions are due to be lodged by 26 March 2025, that is, less than 2 weeks from the date of this Decision.

20.  It must be because of W’s recognition that the time is very tight that her counsel proposed in their written submissions, inter alia, that:

(1)  H do within 3 days from the date of the Order provide the Requested Documents for inspection (as opposed to 14 days as originally provided in the Specific Discovery Summons);

(2)  The time for the parties to lodge and serve Opening Submissions and Open Proposals be postponed to 31 March 2025.

21.  Therefore, by any standard, this must be considered a very late application.

22.  Hence, the first question to ask is the reason of such delay.

23.  In this regard, W’s counsel explained that:

“The crux of this application is thus to get to the bottom of the gaps in H’s disclosure as to his financial means. The same has only become apparent to W after obtaining and expending considerable time and costs in reviewing H’s voluminous XXX tax returns and comparing them to the glaringly different disclosure he has given in his Forms E. Had it not been for W’s solicitors insisting that H provide her with the XXX tax returns (which H refused to do for several months), these discoveries may never have come about. The Court will draw its own conclusions as why this has been the case.”[1]

24.  Therefore, in a gist, W’s case is that it was the        tax returns which H provided late that in turn delayed W’s application.

25.  With respect, I cannot accept W’s explanation.

26.  First, it is evident that the        tax returns were provided by H to W on around 26 June 2024. Although it is W’s case that it is time-consuming for her to analyse those tax returns and compare the same with H’s Forms E, in my view, taking out this application only 7 months thereafter cannot be said to be reasonable.

27.  Second, if W had acted more promptly, she would have been able to obtain H’s        tax returns much sooner.

28.  W’s solicitors first made a request on 4 March 2024 for H to provide her with his       tax returns, on the basis that all documents provided by H to the          tax expert should be supplied to W as well. No reply was received from H’s solicitors. W’s solicitors then chased H’s solicitors for an answer by another letter dated 18 March 2024. H’s solicitors did not reply until 16 April 2024, when W’s solicitors were told that H would only provide a copy of the         tax returns in exchange for certain information and documents from W. W considered this unreasonable, and therefore wrote to this Court on 14 June 2024. Having given a chance for H’s solicitors to express H’s stance on W’s complaints by 21 June 2024, this Court subsequently made an order on 24 June 2024 that H shall disclose to W all documents which he had sent to the         tax expert.

29.  It can therefore be seen that W herself had delayed the matter herself:

(1)  She did not apply to the Court right away, say, by early April 2024, when H’s solicitors had given no reply to W’s repeated requests;

(2)  She had waited for more than 2 months after H’s reply that he would only provide her with his           tax returns on condition, which she considered unreasonable, before she wrote to the Court and asked for an order.

30.  Third, the need to refer to H’s          tax returns must have been apparent to W no later than 2022, for it was argued by W that:

“H had not provided his XXX tax returns when he filed his 2022 Form E. H had no intention of providing W with his XXX tax returns. After the failure of the 2022 FDR, and H had claimed that his XXX tax obligations seriously impacted his assets and ability to pay, W had requested information on his XXXX tax declarations but to no avail […]”[2]

31.  If W had requested for H’s        tax returns earlier, according to her own case, she would have been able to realise the need to ask for further documents from H much earlier.

32.  Fourth, W gave a number of “principal examples” of H’s failure to give financial disclosure in paragraph 13 of her 3^rd Affidavit, and she also gave a number of examples which show that, as a result of such failure, her solicitors had to repeatedly demand disclosure by letters. It can be seen from those examples that most of the complaints relate to H’s Forms E and Answers filed in 2017 – 2022 and the written demands were sent in 2017 and 2019. These all show that W should have made her application to the Court much earlier, rather than leaving it until so late.

33.  Fifth, W’s explanations of the timing of the present case are as follows:

W’s 3^rd Affidavit

“3. […] Upon discussing my case in general with Counsel and preparing for the upcoming PTR hearing and the Ancillary Relief Trial, and particularly when reviewing [H]’s Forms E to date, his Questionnaire and updated Form E filed dated 22 November 2024 with the documents supplied each time and interim, and again against his Narrative Affidavit file on 10 January 2025, it is apparent that [H]’s financial disclosure is materially and substantially defective, to the extent that it is not possible even at this late stage accurately to set out or verify, by reference to the documents he has disclosed, the financial marital assets in his control or otherwise available to him at the relevant dates. As a result, it has proved arduous and ultimately an impossible task to comply with the Court’s direction that the entries in the financial Scott Schedule be marked as agreed or disputed. Nor has it been possible for my legal team and me to definitely do so in the List of Issues, as directed.”

W’s 6^th Affidavit

“7. The criticism that my application is late comes against the backdrop where for years I gave [H] every opportunity to come a settlement, both outside of Court and through the FDR process. My focus was on attempting to amicably settle our dispute. [H]’s refusal to value the Business was just one obstacle he regularly imposed. His failure to give full and frank disclosure is another, and one that cannot continue if the financial trial is to be a fair one. It is in view of the forthcoming Trial, and [H]’s failure to give full and frank disclosure in his 2024 Form E (filed on 22 November 2024), his Narrative Affidavit (filed on 10 January 2025), and his reply narrative affidavit (filed on 27 January 2025), that I have been forced to issue this application. As already stated in my 3^rd Affidavit, it took significant time and effort on the part of my legal team to review [H]’s disclosure of his XXX tax returns (which are several hundred pages for each year), and compare it with [H]’s disclosure in these other documents. That exercise could only be completed after we had received [H]’s narrative evidence. The difficulties of that exercise were further magnified by the lack of supporting documentation in [H]’s Forms E. [H] also overtly fails to address why he deliberately delayed handing over his          tax returns and only did so in paper form, which further delayed matters. It was only after this extensive task was done, and when it was apparent that [H]’s disclosure was questionable and the lacunas in information so significant on the numbers, that we could bring the application.”

34.  With respect to W, insofar as it is suggested by her that she only realised about H’s inadequacy in terms of disclosure of documents in late 2024 or even early 2025, I do not accept, for it is evident that she has been asking for those categories of documents long time ago. For example, reference may be made to her own evidence in her 3^rd Affidavit filed in support of this application:

“8. […] [H] has not disclosed the full extent of his XXX Tax calculations which would enable the Court to see the gains and income on which his XXX tax has been or is anticipated to be levied for inclusion in the marital assets, including the question of prepaid taxes in relation to certain funds.

9. This failure to disclose is long-standing and has been continuous, despite my several requests, over the past years of these proceedings. By way of example, in a letter from Withers to Gall dated 12 September 2023, […] I requested [H] to provide complete details of all payments (excluding his monthly salary) and dividends/distributions that he has received from the business and co-owned entities since the onset of these proceedings in September 2016 and the purpose of those funds. Additionally, I requested proof directly from [H]’s tax advisors of the large tax payments he has made, which I understand amounted to more than US$6 million for his 2022 taxes, which does not correspond with [H]’s income and the very low value he claims for [CD Limited]. [H] provided some tax documentation via a letter from Gall dated 19 September 2023, but this was not information from [H]’s tax advisors, as I requested. [H]’s position in this respect remains undefined and undocumented even after receipt of his Form E in November 2024 and Narrative Affidavit in January 2025 […]”

35.  It can therefore be seen that W was already asking for the same kind of information back in 2023. Although she was not asking for documents at the time, in my view, she knew well what she was looking for back then, and it was her decision not to take out specific discovery application there and then when it should have been apparent to her (if what she alleged was right) that H was not going to provide her with the information she asked for. Indeed, if in her view, after so many years, H was still uncooperative in terms of providing her with information/documents, it was her wishful thinking that H would suddenly become cooperative when he filed his Form E and Narrative Affidavit in late 2024 and early 2025 respectively. In other words, it was unreasonable for W to adopt a wait-and-see attitude for such a long time and did not make the present application earlier.

36.  Sixth, it seems that W also blamed the design of Form E. In her counsel’s own words:

“Some of this difficulty is attributable to the deliberate omissions in H’s earlier Forms E, but much arises from the terms and dates for the production of documents in the Forms E themselves, which eventually produce a “snapshot” of H’s securities holdings and their value as at the date of the Form. For example, Section 2.7 of the Form E only asks for the latest securities statement for each account; section 3.6 “Other Income”, which includes dividends and interest, calls only for ‘details’ of such income but requires no supporting documents at all for the dividends or interest received over any prescribed period. Section 2.4 of the Form E requires only the last 2 years’ financial statements of private companies in which an interest is held as at the date of the Form.

The result is that for a party such as H, whose principal financial assets are in securities, in which gains are made and paid out as dividends or interest to private companies whose financial statements have not been produced at a point in time when they would be shown on a Form E, such payments may not appear as income on a particular Form E.”[3]

37.  This is a new argument which should have been raised in W’s first set of submissions. In any event, with greatest respect, this is a bad argument which must be rejected:

(1)  W should have good knowledge as to H’s business and therefore she should have realised the need (if there was indeed such a need) to ask for specific discovery long time ago;

(2)  In any event, she has always been legally represented. She should have been advised to make such an application much earlier.

38.  I therefore take the view that there was inexcusable delay on the part of W to make the present specific discovery application.

39.  It goes without saying that, if this specific discovery application is to be granted, much of H’s (and his legal team’s) time and attention would have to be diverted to prepare for disclosure. H’s interest would no doubt be prejudiced.

40.  Moreover, given the large number of the Requested Documents, it would be unfair to H if he were to be required to produce the documents and make an affirmation verifying the list within 3 days as newly proposed by W. In my view, even not taking into account the impossibility for compliance which H alleged for the time being, at least 14 days (if not more) should be given to H as a matter of fairness. That would bring us to 28 March 2025, which is already beyond the date scheduled for the lodging of Open Financial Proposals and Opening Submissions. Since I am not prepared to postpone the date to 31 March 2025 as requested by W (because the commencement of the trial is imminent), the late introduction of a large number of documents would also render the Open Proposals and Opening Submissions to be lodged by W meaningless, because there is no way that W would be able to take the newly produced materials into account. That in turn would prejudice H’s interest because he would not be able to know what case he is expected to meet at the AR Trial.

41.  In my view, the prejudice which H would suffer and the impact which would be caused to the AR Trial in the event the specific discovery order sought is granted would be so great that would clearly outweigh the probative value of the Requested Documents.

42.  When balancing the relevant factors, I have no forgotten the reminder given by W’s counsel that this Court has an inquisitorial role in the matter, and that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties. I have also been told that W is obviously prejudiced by not having the Requested Documents. However, in my view, W has herself to blame for not bringing this application earlier.

43.  For reasons of the aforesaid, I am of the view that the Specific Discovery Summons should be dismissed by reason of delay alone.

C2.  The Requested Documents

44.  Strictly speaking, there is no need to say anything more on the merits of the application. However, I would like to take this opportunity to demonstrate why I take the view that some of the requests cannot even get off the ground in the context of a specific discovery application. There are mainly 2 problems.

45.  The first problem is that some items are in fact requests for information rather than documents. For example:

(1)  Paragraph 1(ii) (see [5] above) requests for “The current or last known whereabouts of those returns and their proceeds”. It is apparent that this is not a description of a document, but of information rather. This is therefore not a proper application for specific discovery;

(2)  “Information showing the no. of subscribers and changes in the no. of subscribers for each of the funds for the period […]” (Item 4 under Schedule A);

(3)  “Dividends paid out (amount or rate per share) of each fund for the period […]” (Item 8 under Schedule A).[4]

46.  The second problem is that some documents under request seem to me not in existence yet, and it appears that W is asking H to compile these documents so that W would be able to obtain the information which she would like to have. For example, item 1 under Schedule A reads: “A full list of funds managed under different companies as of the year ending […]”.

47.  One may ask at the outset whether such a list is readily there, or whether H is required to compile such a list. If it is the former situation which applies, then W should be under an obligation to explain in her supporting affidavit as to why she alleges that this document exists. If it is the latter situation which applies, then this is not a proper request.

48.  The comments made by W in relation to this document only causes me to think that the request under this item is misconceived. She stated:

“The list of funds provided to Jerome McDonagh is set out in Annexure 1 to the 1^st Report of Mr McDonagh. This is the list of funds managed as at the Valuation date. Whereas this request is for the full list of funds managed under different companies for the years ending 2019, 2020, 2021, 2022, 2023 and 2024.

This is necessary because information of the list of funds as of different year-ends will provide not only a snapshot of the funds held at those points in time but, more importantly, the movement during the relevant periods. This includes changes in the number of funds operated, the number that were liquidated, which indicate the distributions made to [H]. [H] has never provided this information to date.

Form E disclosure provided only snapshots of holdings as of specific dates (not necessarily year-end dates), which were not clearly indicated in [H]’s Forms E. The requested year-end figures are needed to verify against those reported in the XXX tax returns, which are based on year-end data.” (W’s emphasis)

49.  I have tried to ascertain what the list of funds looks like by reference to Annexure 1 to the 1^st Report of Mr McDonagh but to no avail, as such an Annexure is in fact the expert’s CV.

50.  Therefore I can only envisage what it is by reference to its name. It being a list, it seems that, even if it does exist, it would simply be a list containing the names of different funds, rather than a document which shows, for example, distributions made to H.

51.  There are other requests which may be included under the same category, for example:

(1)  “A detail summary of [H]’s investments/subscriptions in various funds […]” (Item 3 under Schedule A);

(2)  “A summary of Redemptions and Subscriptions […]” (Item 7 under Schedule A).

52.  On the issue of existence of the Requested Documents, W only stated the following in paragraph 7 of her 3^rd Affidavit:

“The documentation that is being requested is or would be available to [H] in the ordinary course of affairs but which he has simply not produced or spoken to, either in or in support of his Forms E or the (now-outdated) Questionnaires. As a long-standing director of [CD Limited] and otherwise, I am able to speak to the maintenance of these records at [CD Limited], where they are under [H]’s control. They are all readily available to [H] or can be retrieved within a reasonably short period.”

53.  It can be seen that W did not deal with the question of existence of the Requested Documents individually. In my view, that is not sufficient in the circumstances of the present case.

D.  DISPOSITION

54.  The Specific Discovery Summons is therefore dismissed.

E.  COSTS

55.  I make a costs order nisi that W shall bear H’s costs of the Specific Discovery Summons, with certificate for 2 counsel.

56.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

57.  Unless any application for variation of the aforesaid costs order nisi is made within time, H shall lodge and serve his statement of costs on or before 22 April 2025. W shall lodge and serve her statement of objection by 29 April 2025. Summary assessment of the costs of the application will be conducted on paper (no matter whether any statement of objection is lodged within time) thereafter. The costs assessed shall be paid within 14 days after assessment.