LCP (formerly known as LCF and LP) v. LS (formerly known as LLS)

FCMC 12452/2005

[2020] HKFC 171

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12452 OF 2005

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R U L I N G

(Leave to appeal and leave to appeal out of time)

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Introduction

1.  This is an application by the Respondent wife for leave to appeal out of time by way of summons dated the 13 January 2020. In that summons she says that she wishes to

… appeal against the distribution of property, the maintenance order and the decree absolute of divorce made on the 12 February 2007.   

2.  The decree absolute was granted on the 22 August 2007 – some 13 years ago. There is no order concerning the distribution of property and the only order for maintenance was an interim order that the husband pay the wife HK1,000 per month as maintenance for the child of the family. This is dated the 2 May 2007. By a previous order dated the 12 February 2007 custody of the child of the family was granted to the wife and a further order was made for nominal maintenance of HK$1 per annum to be paid by the Petitioner husband to her. The decree nisi was dated the 16 May 2006.

3.  From the court files it seems that the wife did not have lawyers but that she nevertheless attended every hearing during the first round of litigation – i.e. on the 9 August 2006, 12 December 2006, 12 February 2007, 2 May 2007 and 10 August 2007. There is also nothing on the face of the papers to support the allegation that she did not receive copies of all relevant court documents. In particular, there is an affidavit of personal service on file dated the 16 February 2006, which confirms that the wife was personally served with the Divorce Petition, Statement of Arrangements for the Child, Notice of Proceedings (Form 3) and the Acknowledgment of Service form (Form 4).

4.  At the time that the petition was issued the child was subject to a care and protection order and was living at the X facility in Causeway Bay. By virtue of a court order dated the 9 August 2006, the wife confirmed that she did not wish to have custody of the child and it was ordered that the child should continue to reside in care. However, on the 12 February 2007 it was ordered by consent that the wife would have custody of the child. As indicated above, the nominal maintenance order was also made by consent on the same date. In an updated Social Investigation Report dated the 4 August 2007 it was also confirmed that the child had been placed in a foster home.

5.  It is then against this factual background that the wife now seeks leave to appeal and leave to appeal out of time.

Leave to Appeal out of time

6.  In so far as the application for leave to appeal out of time is concerned, the factors that are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal include inter alia as follows:

(1)  the length of the delay;

(2)  the reasons for the delay;

(3)  the chances of the appeal succeeding if the time for appealing is extended; and

(4)  the degree of prejudice to the potential respondent (here the husband) if the application is granted.

7.  In this instance the delay has been very considerable. I also do not accept the reasons given for the delay, such as they are. It also seems to me that the chances of the appeal succeeding are slim and that the degree of potential prejudice to the husband is correspondingly very great. 

Leave to Appeal

8.  Thus the matter could end here. However, in the unlikely event that a higher court is not with me on the leave to appeal out of time point, I have decided that it may be prudent to go on to consider the leave to appeal application substantively.

9.  Firstly, the wife must satisfy the general provisions for leave to appeal found in section 63A of the District Court Ordinance which allows for an appeal to be made to the Court of Appeal with the leave of the presiding Family Court judge. In this instance Deputy Judge S D’Almada Remedios (as she then was) originally presided over the case. The matter was then passed to HH Judge Melloy and she was responsible for the matters now complained of by the wife. Latterly the case was transferred to a bilingual judge.

10.  Section 63A of the District Court Ordinance provides as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

11.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

12.  In this instance the wife is seeking leave to appeal in three aspects.

1)  Distribution of property

There has been no order with respect to the distribution of property. Consequently, it follows, that it is not possible to seek leave to appeal against something that does not exist. It is also of note that there has been no dismissal of claims. If the wife now maintains that the husband had assets which he did not disclose at the time of the divorce, then she has other possible remedies that might be open to her. Seeking leave to appeal is not one of them. 

2)  the maintenance order

The nominal maintenance order was made by consent. The maintenance for the child was made on an interim basis as he was in foster care at the time and the long term arrangements for his care had not been finalized. It is open to the wife to apply to vary both orders. However, there is no basis for an application for leave to appeal.

3)  the decree absolute of divorce made on the 12 February 2007.   

As indicated above the decree absolute was actually granted on the 22 August 2007 and not the 12 February 2007. The wife was duly served with the divorce proceedings and she attended every hearing thereafter. She did not defend those proceedings. She has not identified any basis upon which the court could give leave to appeal in such circumstances.   

Conclusion

13.  Consequently, the wife’s application for leave to appeal and leave to appeal out of time shall be dismissed. In such circumstances there is no reason why costs should not follow the event in the normal way. Thus the Respondent wife shall pay the Petitioner husband the costs of and arising out of her summons dated the 13 January 2020 on a party and party basis to be taxed if not agreed.