LYYC v. CHL and CSMS, the Executrices of the Estate of CGSK also known as CSKG, deceased

FCMP 223/2017

[2020] HKFC 158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS

NUMBER 223 OF 2017

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RULING

(Transfer up and case management directions)

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Introduction

1.  The Respondents issued a summons dated the 20 March 2020, in which they asked that these proceedings be transferred to the High Court, including an application for interim maintenance, issued by the Applicant, dated the 19 November 2019.

2.  By the time that each side’s written submissions had been filed, it seems that the outstanding issues had narrowed somewhat, in that the Applicant, in maintaining a neutral stance, also accepted that the proceedings should be transferred to the High Court in due course. The remaining issue was one of timing. She asked that the proceedings be transferred after her summons for interim funding had been determined. She also asked that there be a Financial Dispute Resolution hearing prior to the transfer up. In turn, the Respondents argued that there should be an immediate transfer up. Thus, I am now asked to make what is essentially a case management decision.         

Background

3.  In the interests of saving time, I do not intend to set out the background to the case here. If deemed necessary reference may be made either to a) this court’s striking out judgment dated the 8 January 2019 or b) its subsequent Leave to Appeal ruling dated the 15 February 2019 or indeed, c) the Court of Appeal’s judgment dated the 14 May 2019. Reference may be made to those judgments and rulings as appropriate.     

The law

4.  Further, given that there is no argument with respect to the law, I do not intend to set out the relevant provisions with respect to applications of this nature. Reference may be made to Rule 32 and Rule 80 of the Matrimonial Causes Rules, Cap 179A, together with Practice Direction 15.14. Appropriate case law includes H v H, FCMC 7173/2000 dated the 1 February 2002 (unreported).

5.  It is accepted that in accordance with those authorities, the Family Court has an unfettered discretion to order a transfer up of any application to the High Court and that such an unfettered discretion also extends to deciding when such an order should be made.

“The fundamental principle is whether in light of the overall circumstances including the nature of the issues of fact or law involved, the proceedings or part of them are more desirable to be dealt with in the Court of First Instance” (§2)

Decision

6.  Having read each parties’ written submissions together with the relevant affidavits, I have decided that it would be more appropriate for this court to determine the issue of interim maintenance before transferring the matter up to the High Court. To that end directions will be given at the end of this Ruling for this aspect of the case to be dealt with by way of a further paper disposal. It is of note that affirmations and Form E’s have already been filed and that the parties will only need to file short updates in that regard. Thus, it should be possible to deal with this aspect of the case relatively quickly. The parties can then indicate whether or not they wish this matter to proceed to a FDR hearing, in which case it shall remain in the Family Court for that purpose. If there is no settlement or in the event that the parties decide that a FDR hearing might not be fruitful, then the case shall be transferred up to the High Court for trial.

7.  In making this decision I largely accept the submissions made by Mr. Jeremy Chan for the Applicant with respect to timing and judicial resources. I also accept that the court may make an order for interim financial support in cases of this nature i.e. where jurisdiction is challenged, and further that it is possible under s. 7 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481, for the court to make an interim order subject to certain conditions or restrictions.

Costs

8.  Given that the Applicant has been successful with respect to the only outstanding issue before the court, it seems to me that costs should follow the event in the normal way. Thus, I shall make an order nisi to be made absolute in 28 days’ time, that the Respondents do pay the Applicant’s costs of and arising out of their summons dated the 20 March 2020 on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

Order

9.  Consequently, I shall make an order as follows:

i)  There shall be an order in terms of paragraph 1 of the Respondent’s summons dated the 20 March 2020, but such order shall only take effect after the Applicant’s summons for interim maintenance dated the 19 November 2019 has been determined and the issue of an FDR hearing has been reconsidered.

ii)  The Applicant’s summons dated the 19 November 2019 shall be dealt with by way of a paper disposal.

iii)  Both parties shall file and serve a short updated affidavit with respect to any changes to the financial circumstances of the Applicant and the Estate within the next 14 days. Such affidavits shall also exhibit appropriate updated sections of each party’s Form E. (i.e. on or before the 21 August 2020)

iv)  The Applicant shall file and serve a short submission with respect to her application within 7 days thereafter. (i.e. on or before the 28 August 2020).

v)  The Respondent’s shall file and serve a short submission in reply within 7 days thereafter (i.e. on or before the 4 September 2020)

vi)  Leave be given for the Applicant to file an equally short submission in response within a further 7 days thereafter and the court to be informed in the event that she chooses not to do so. (i.e. on or before the 11 September 2020)

vii)  No further affidavits/ affirmations and/or submissions to be filed without leave of the court.

viii)  The FDR hearing shall be adjourned until after the interim maintenance judgment has been handed down, whereupon further consideration can be given for the suitability or otherwise of this matter proceeding to a FDR hearing.

ix)  There shall be an order nisi to be made absolute in 28 days’ time, that the Respondents do pay the Applicant’s costs of and arising out of their summons dated the 20 March 2020 on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.