CKK v. WMY

FCMC 10089/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 10089 OF 2007

----------------------------

__________________

REASONS FOR DECISION
(Preliminary Issues)
__________________

The Application

1.  This is the petitioner husband’s application for trial of certain preliminary issues prior to the FDR hearing as to whether there was an agreement made between the parties for full and final settlement of ancillary relief and whether that agreement had already been performed.

2.  For convenience, I will refer the petitioner husband as “P” and the respondent wife as “R”.

3.  R’s application for leave to file her application for ancillary relief was originally fixed to be heard (with oral evidence) from 6 January to 8 January 2015.  Subsequently, P conceded that no leave is required and now he proposes that these dates be used for the trial of the preliminary issues.

Background

4.  The parties were married in November 1985.  Before then, they had cohabited with each other since 1982.

5.  There is one child of the family, a son, now aged 29 and married. 

6.  R’s case is that the parties separated in 2010 but P said it was in 2007.  Be that as it may, whatever time it was, it was undoubtedly a long marriage.

7.  The facts of this case are quite unusual in that the parties have had 3 divorce petitions, spreading over a period of 7 years.  It was only on the third occasion that they finally succeeded in parting their ways.  Even the third occasion was apparently not an uneventful one.

The 1^st Divorce

8.  The 1^st divorce was taken out by P on 10 November 2003 (“the 1^st Divorce”) on the ground of one year separation.

9.  At that time, the parties entered into a Settlement Agreement in Chinese (“the Chinese Settlement Agreement”).   The Petition, which was prepared by P’s solicitors at the time, also referred to this agreement which provided that:

1. R was to transfer her shareholdings in 2 private companies in favour of P or his nominees and to resign as director of these 2 companies;

2. Upon the transfer of the shareholdings, P was to transfer all his interest or share as one of the two joint-tenants of the former matrimonial home to R free from mortgage.  The costs and stamp duty of the transfer was to be paid by R; and

3. P agreed to pay R a monthly sum of $6,000 for the maintenance of the son.

10.  Shortly afterwards, the 1^st Divorce was discontinued by the parties’ consent on 16 February 2004.

The 2^nd Divorce

11.  Then a few months later, the parties applied for divorce by way of a Joint Application on 2 November 2004 (“2^nd Divorce”).  The parties acted in person this time and therefore everything was homemade.  In the Joint Application, the parties referred to the fact that the parties had arrived at a settlement agreement; and attached to the Joint Application was the Chinese Settlement Agreement with some hand-written amendments (“the Chinese Settlement Agreement as Amended”).  The amendments were not material and are not relevant to our discussion here.  The parties went a bit further this time to obtain a decree nisi on 25 February 2005 but then shortly afterwards on 16 June 2005 the 2^nd Divorce was discontinued. 

The 3^rd Divorce

12.  P petitioned for the third time on 17 August 2007 (“3^rd Divorce”) on the ground of one year separation.  Again, both parties acted in person in the proceedings.

13.  In the Petition, it was pleaded that the parties had separated since February 2006.  However, unlike the 1^st Divorce and the 2^nd Divorce, P did not state that the parties had arrived at any settlement agreement.  In paragraph 6 of the Petition, he stated that it was not necessary to maintain R and the son (“無需供養答辯人及子女”) and he made no application for ancillary relief.

14.  Meanwhile, the Form 4, signed by R, signifying her consent to divorce and that she was not going to make any application for ancillary relief, was filed on 22 August 2007.  There is some dispute over how the Form 4 was signed.  R’s case is that she paid no attention to its contents at that time and just signed it.  On the other hand, P said R did not sign it immediately and he just left the document with R for her signature.

15.  Be that as it may, the 3^rd Divorce apparently went smoothly this time, up to at least 27 November 2007 when decree nisi was granted.

16.  However, the 3^rd Divorce was less straightforward after that.

17.  To start with, it was not until 3 years later that the decree absolute was applied for by P and was granted on 10 June 2010.

18.  Secondly, as mentioned above, there was no written agreement attached to the 3^rd Divorce papers.  P said that the parties simply adopted the Chinese Settlement Agreement as Amended.

19.  Thirdly, the parties did not live apart from each other before the decree absolute was granted.  At the time of the 3^rd Divorce, the parties were living in the former matrimonial home which was purchased in the joint names of P and R in 2000.  I think it is not in dispute that the parties remained living under the same roof throughout the period, except that P left home to live in his Apartment (“P’s Apartment”) for a short period from September or October 2007 to April 2008.

20.  It appears to be common ground that the transfer of the shareholding was already performed.  However, the former matrimonial home was not transferred to R as provided in the Chinese Settlement Agreement as Amended, but in fact it was sold in February 2008 and the proceeds were used to pay for another Apartment (“the Apartment”), purchased in the joint names of R and the son.

21.  Before the completion of the purchase of the Apartment, R, together with the son and his wife, ie the daughter-in-law, moved to live with P in P’s Apartment in about April 2008.

22.  In August 2008, the parties together with their son and the daughter-in-law moved to live in the Apartment.

23.  It is not in dispute that throughout, whether in the former matrimonial home, P’s Apartment or in the Apartment, the parties occupied the same room and slept on the same bed; and they also travelled together to Taiwan in December 2008 and to Dubai in January 2009. 

24.  It was not until early 2010 that P moved out and applied for decree absolute.

25.  P remarried on 5 June 2011.

26.  Then, some 3 years later, R commenced her application for ancillary relief by filing a Form 8. 

P’s Case

27.  P said that on the 1^st Divorce the parties entered into the Chinese Settlement Agreement to deal with the financial matters between them.  When the parties divorced again in the 2^nd Divorce, they used the same agreement with some hand-written amendments; this was the Chinese Settlement Agreement as Amended referred to in this Judgment.  Then, when it came to the 3^rd Divorce, again the parties simply adopted the Chinese Settlement Agreement as Amended.  However, he did not elaborate on why the Petition was pleaded in the way it was.

28.  He affirmed that pursuant to the Chinese Settlement Agreement as Amended, the parties entered into a Chinese Agreement dated 19 January 2008 (“the Chinese Agreement”) for the transfer of the former matrimonial home.  It stated that P agreed to transfer his interest in the former matrimonial home to R for $3,000,000.  It also clearly stated that the transfer was part of the divorce agreement and that the consideration of $3,000,000 would be dealt with by the parties themselves without the involvement of the solicitors for the transaction.  Then on 22 January 2008, an Agreement for Sale and Purchase was signed by P as vendor for the sale of his interest in the former matrimonial home at the consideration of $3,000,000. 

29.  P explained that the Chinese Agreement and the Agreement for the Sale and Purchase were made in the performance of the Chinese Settlement Agreement as Amended.  However, R changed her mind and decided to sell the former matrimonial home.  Therefore, the Sale and Purchase Agreement was subsequently cancelled on 1 February 2008 by way of a Cancellation Agreement. It was cancelled wholly at the instruction of R because the former matrimonial home was R’s property anyway.

30.  It was also because of this change of mind that at about the same time, the parties entered into a Provisional Agreement for Sale and Purchase on 29 January 2008 for the sale of the former matrimonial home for $9,380,000. 

31.  Then on 16 April 2008, the Apartment was purchased in the joint names of R and the son for $12,870,000.  It was financed by a mortgage with P as the borrower.  P said that the mortgage was for $3,000,000 and on the top of this sum he also paid a further sum of $2,079,435, totalling $5,079,435.  The rest was paid by R.  However, as for R, she said she contributed about $5,000,000 only.  Be that as it may, P explained that the mortgage was taken out in his name as a form of financial assistance to R only because she had difficulty in obtaining mortgage in her name.

32.  On the basis of the above facts, P said he had performed what he was required to do under the agreement with R, and as a matter of fact, he had performed more than enough.

R’s Case

33.  R’s case is that there was never any agreement dealing with the financial matters upon the 3^rd Divorce; in particular, she denied the parties adopted the Chinese Settlement Agreement as Amended.

34.  In her supporting affirmations dated 17 February 2014 and 29 April 2014, she alleged P of non-disclosure of his financial resources at the time of the 3^rd Divorce as the explanation as to why she did not claim for ancillary relief, in particular P represented to her that his business was poor and he might be liable for damages in a civil claim.

35.  The purchase of the Apartment in her and the son’s names was P’s idea and was not part of the performance of the Chinese Settlement Agreement as Amended.  The Apartment was not purchased in P’s name because he wished to avoid investigation by the Inland Revenue.

36.  The parties lived together as husband and wife up to 2010 and P had been paying her family expenses $12,000 per month.

37.  She also gave some explanations as to why she did not apply for ancillary relief subsequent to the decree nisi.  I do not think I need to go into the details here.  In brief, R said it was because P had represented to her that he would help her out should she have any financial problems and of the fact that P continued to pay her living expenses, but this ceased in February 2014.

P’s Response

38.  He denied having failed to give full and frank disclosure of his financial situation.

39.  P said the moving into the Apartment to stay with R and the son was for convenience and not for reconciliation.  He accepted that he stayed in the same bedroom and slept on the same bed with R but there was no sexual intercourse between them.  He just treated R as a friend and in truth they led separate lives since as early as around the time of the 2^nd Divorce.  He did not apply for the decree absolute promptly because he was not aware of the need to do so.

40.  He admitted having paid R monthly sums of $12,000 but these were merely the lodging fees or rentals for his occupation of the Apartment.  Nevertheless, he accepted that he continued to pay R monthly expenses of $12,000 after he had moved out of the Apartment.   

41.  Against this background, P now seeks to have a trial on three preliminary issues prior to the FDR hearing.  The three issues are:

1. Whether there was an agreement at the time of the 3^rd Divorce between the parties as to full and final settlement of ancillary relief;

2. Whether the transfer of P’s half legal and beneficial interest in the former matrimonial home to R in January 2008 was pursuant to the agreement made at the time of the 3^rd Divorce; and

3. Whether by the transfer in (2) above, P has fully discharged his obligations under the agreement made at the time of the 3^rd Divorce and therefore, there was already full and final settlement of ancillary relief between the parties.

42.  R opposes to the application on the basis that the questions / issues submitted are not fit and proper to be tried as preliminary issues.

Applicable Legal Principles

43.  P relies on Order 33, rr 3 and 4(2), RHC.

44.  Rules 3 and 4(2) read as follows,

“3. The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.”

“4(2) In any such action different questions or issues may be ordered to be tried at different places or by different modes of trial and one or more questions or issues may be ordered to be tried before the others.”

45.  The parties have no dispute over the applicable principles.  Ms Yip SC, counsel for R, has helpfully set out the relevant principles which I gratefully adopt. 

46.  Pursuant to Order 33 rule 4 of the Rules of High Court, applicable to the matrimonial proceedings by Rule 3 of the Matrimonial Causes Rules with necessary modifications, the court has power to order separate trials of separate issue.  The circumstances in which a hearing of preliminary issue may be ordered are elaborated in Hong Kong Civil Procedure 2015, Vol 1 at para 33/4/9 on p 721 as follows:-

“The Court of Appeal considered the circumstances which a split trial may be ordered in Telford Development Ltd v Shui On Construction Co Ltd [1990] 2 HKC 110. The general rule is that all the issues in the case are to be tried at the same time. There is power to order that different issues in the case be tried at different times, but that departure from the general rule is ordered only if it is just and convenient. It is, of course, for the party who seeks such a departure to demonstrate that it is indeed just and convenient. …That decision was applied in Chan Jak Tung (t/a Forward & Co) v Baltrans Ltd and Others [1997] 1 HKC 89. The court restated the general rule. Only if it was just and convenient should there be a departure from the general rule. An order for a separate trial should only be made in exceptional circumstances or on special grounds. Where there had been delay, and there were likely to be additional costs incurred and additional facts to be determined if a split trial were ordered, then the court would decline to order a trial of the preliminary issue.”

47.  And on p 722:-

“On the other hand, where there has been delay and there is a likelihood of additional costs and where also there are facts to be determined, the court will be disinclined to order the trial of a preliminary issue…”

48.  In Mai Gou v Mak Chik Lun [2001] 3 HKLRD 248, the Court of Appeal said at the holding that:-

(1) As a general rule, all issues arising in an action should be tried together, and an order for the separate trial of separate issues should only be made in exceptional circumstances or on special grounds.  Therefore, the court should be extremely cautious before acceding to pleas for the making of such order.

(2) As a rule of thumb, an order for the trial of preliminary issues should only be made if, whichever way the issues were decided, they would be determinative of the case or at least part of the case.  The court should also be mindful not to order the trial of preliminary issues involving disputed facts.

49.  Detailed elaboration of the legal principles can be found at p 251 of the judgment by Hon Le Pichon JA:-

“The annotation in The Supreme Court Practice 1999 is a useful starting point. At para 33/4/10 it is stated that:-

An order for the separate trial of separate issues is a departure from the beneficial object of the law that all disputes should be tried together, and therefore, generally speaking, such an order should only be made in exceptional circumstances or on special grounds (per Jessel MR in Piercy v Young (1880) LR 15 Ch D 475 at p 479 and p 480; per Scrutton LJ in Bottomley v Hurst and Blackett Ltd and Houston (1927-28) 44 TLR p 451 at p 452).

This approach was echoed by Lord Wilberforce in his speech in Tilling v Whiteman [1980] AC 1 at pp 17H-18A:-

I, with others of your Lordships, have often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional.

Indeed, as Lord Roskill observed in his speech in Allen v Gulf Oil Refining Ltd [1981] AC 1001 at p 1022A:-

The preliminary point procedure can in certain classes of case be invoked to achieve the desirable aim both of economy and simplicity. But cases in which such invocation is desirable are few. Sometimes a single issue of law can be isolated from the other issues in a particular case whether of fact or of law, and its decision may be finally determinative of the case as a whole. Sometimes facts can be agreed and the sole issue is one of law.

Lord Roskill went on to urge those whose task it is to decide whether or not the trial of preliminary points should be ordered to be “extremely cautious” before acceding to pleas for the making of such orders as a result of attractively advanced submissions founded upon pleas of supposed economy.

It is sometimes said that trials of preliminary issues should only be ordered if, whichever way they are decided, they would be determinative of the case or at least part of the case.  The good sense of that rule of thumb is apparent and it is a rule which I would readily endorse.”

50.  Thus, the principles on a hearing of preliminary issue can be summarized as follows:-

(1) Order 33 rule 4 RHC on hearing of preliminary issues apply to matrimonial proceedings;

(2) As a general rule, all issues or disputes should be tried together;

(3) Separate trial of separate issues is a departure from the general rule and is exceptional, made on special grounds and few.

(4) The court should be extremely cautious before acceding to pleas of such orders;

(5) As a rule of thumb, trial of preliminary issues should only be ordered if, one way or the other, they would be determinative of the case or at least part of the case.

(6) It can only be justified where to do so would be just and convenient and will not increase costs and time or delay the proceedings;

(7) The burden is on the applicant asking for trial of preliminary points to satisfy the exceptional course.

P’s Submissions

51.  Ms Tsui, counsel for P, submits that the parties had an agreement for full and final settlement of the financial matters upon divorce.  Not only that the agreement had been performed but that P had performed his part more than enough.  She argues that the alleged “settlement agreement”, ie the Chinese Settlement Agreement as Amended will inevitably be an important fact to consider by the court in the ancillary relief hearing and will strongly be relied upon by P.   She emphasises that the settlement agreement is so important that it is the magnetic factor in the exercise of the court’s powers under section 7 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) and hence, the resolution of this issue would be determinative of the case. This is an unresolved fact which should be investigated. 

52.  Initially in her skeleton submissions, it has been argued by Ms Tsui that the outcome of the preliminary hearing may dispose of the matter entirely, which if that is the case, will definitely help the parties to save time and costs rather than dragging further in the proceedings.  However, during the hearing, she concedes that the determination of the preliminary issues in one way or another way would not save the trial of the ancillary relief.  Nevertheless, she argues that the resolution of the preliminary issues would dispose of an important part of the case.  Even if the court finds against P and concludes that there was no agreement as alleged and no settlement of ancillary relief, this would have somehow helped the parties to resolve an unresolved issue.  If the alleged settlement agreement is to be set aside for material non-disclosure, it would definitely help P prepare his case and locate relevant evidence.  It may also show light on the further conduct of the proceedings or bring about a settlement either through the FDR or otherwise.  Thus, whilst Ms Tsui accepts the general rule is that all the issues in a case should be tried at the same time, the circumstances of the case are “just and convenient” for the hearing of these issues.

R’s Submissions

53.  Ms Yip argues that even if there was the Chinese Settlement Agreement or the Chinese Settlement Agreement as Amended for the 1^st Divorce and the 2^nd Divorce respectively, the same had clearly been withdrawn.  Both agreements were pendent documents and did not have lives of their own.  It is absurd for P to say that even the relevant petition had been discontinued, the agreement would still be alive.

54.  Ms Yip also argues that P fails to justify the departure from the general rule.  Even if the court finds in favour of him on the settlement agreement, this would not dispose of the question of R’s ancillary relief entirely or substantially. 

55.  The starting point is that the court is not bound by any nuptial agreements.  It is the court, not the parties, in the exercise of its powers under section 7 of MPPO, which decides what financial provisions should be made.  She refers to the English Supreme Court judgment in Granatino v Radmacher [2011] 1 AC 534.  She submits that the fact that parties to a marriage have entered into a maintenance agreement and the paying party has fully complied with all the terms of the agreement does not prevent the other party from seeking ancillary relief in proceedings for divorce:  section 15(6) of MPPO.  All the relevant factors and circumstances shall be taken into account by the court when discharging its duty under section 7 of MPPO.  The over-arching criterion in considering the treatment to a marital agreement is fairness:  Granatino v Radmacher (at paras 67, 73, 76 and 131).  Locally, the position has been followed by Court of Final Appeal in SPH v SA [2014] 3 HKLRD 497, at para 39.

56.  It is contended by Ms Yip that taking it to the highest, the settlement agreement, if there was one, is only an important factor in considering what is the just outcome in an ancillary relief: Edgar v Edgar [1980] 1 WLR 1410 at 1417A, per Ormord J.

57.  Thus, the determination of the alleged settlement agreement is only one of the circumstances of the case and the weight of which will need to be determined by the court.  It certainly will not dispose of the matter entirely. 

58.  On R’s contention that there was never any agreement on the 3^rd Divorce, Ms Yip highlights that in contrast to the 2^nd Divorce where the Chinese Settlement Agreement as Amended was annexed to the Joint Application, nothing was attached to the Petition for the 3^rd Divorce, notwithstanding that in both applications the parties were acting in person.

59.  Another fact that Ms Yip heavily relies on as pointing to the absence of an agreement is that the former matrimonial home was in fact not transferred to R.  In other words, there was no performance of the agreement.  Not only that it was not performed but it was cancelled and the proceeds of sale or at least part of them went to the acquisition of the Apartment which became their home.  All these factual disputes, she submits, have to be resolved in the trial of the ancillary relief.

Discussion

60.  In the family law context, the most common reason for a preliminary issue to be heard before ancillary relief hearing is whether any third party interests are involved as laid down in TL v ML [2006] 1 FLR 1263.  Yet, I agree with Ms Tsui that cases are to be considered by their own merits and it does not mean that apart from third party interests, there cannot be a separate hearing on other preliminary issues.

61.  I agree with Ms Yip that notwithstanding three issues are listed, there is in fact one question, that is whether the transfer by P of his half share in the former matrimonial home in January 2008 represents the parties’ agreement for full and final settlement of R’s claims for ancillary relief in the 3^rd Divorce.

62.  I have set out the facts above at some length. Clearly, in the present case, there are a couple of factual issues in dispute, one of which of course is whether there was a performed settlement agreement as alleged by P.  In my view, whether there was a performed settlement agreement is far from clear and this issue is further complicated by the conducts of the parties during the post decree nisi period. 

63.  As mentioned above, Ms Tsui concedes that the determination of the preliminary issues prayed for by P would not dispose of the ancillary relief hearing.   In my view, it must be correct for the reason that the nuptial agreement is merely one of the factors that the court may consider in the section 7 exercise.  On the facts of the present case, even if there was the nuptial agreement as contended by P, there are also questions of what weight to be given to it and whether the agreement was over taken by the events such as the purchase of the Apartment and the cohabitation of the parties subsequent to the grant of the decree nisi.  In this connection, it should be noted that the Chinese Settlement Agreement and the Chinese Settlement Agreement as Amended was homemade and apparently neither party had obtained any legal advice before entering into them.  It may be that the nuptial agreement is the magnetic factor but whether this is the case has to be considered in light of all the evidence and the circumstances of the particular case and this could only be dealt with at the trial of the ancillary relief.  As has been pointed out by Ms Yip, the “settlement agreement” is just part of the fabric of the entire case and is intricately intertwined with other facts of the case.  It seems clear to me that it is not a separate and distinct issue not involving the merits of the ancillary relief claim:  Mai Gou v Mak Chik Lun [2001] 3 HKLRD 248, at 253/D.  Apart from the factual disputes that are highlighted above, there is also a bundle of factors that the court may have to give regard to in the section 7 exercise, such as the delay of R in making the application, the length of the relationship, the financial resources and the needs of the parties and also the fact that P remarried in 2011.

64.  Thus analyzed, the trial of the preliminary issues sought by P would not be determinative of the case in one way or the other.

65.  In this regard, Ms Yip draws my attention to Crossley v Crossley [2007] EWCA Civ 1419, [2008] 1 FLR 1467 where both the husband and the wife were very wealthy, had entered into a prenuptial contract before they married and the marriage lasted slightly over a year.  Thorpe LJ (with whom Kenne and Wall LJJ agreed) held at para 15 of the judgment that, “…if ever there is to be a paradigm case in which the court will look to the prenuptial agreement as not simply one of the peripheral factors in the case but as a factor of magnetic importance, it seems to me that this is just such as case”.  Notwithstanding, Thorpe LJ held that the judge was “incontrovertibly correct” in not directing the enforceability of the agreement to be heard as a preliminary issue as he accepted counsel for husband’s submissions that “the court must conduct the section 25 [equivalent of section 7, MPPO] exercise by reference to all the statutory criteria” (Para 14).

66.  In the hearing, Ms Tsui relies heavily on S v S [2008] EWHC 2038 (Fam), an authority cited by Ms Yip.  In that case, Madam Justice Eleanor King allowed the husband’s application for the wife to show cause why an order should not be made in terms of a draft order based on the agreement of the parties [equivalent of Rule 6, Matrimonial Causes Rules, Cap 179A].  In my view, the facts of that case are quite different from the present one, not so much that the learned judge has “unhesitatingly concluded that this is one of that category of cases identified by Lord Justice Thorpe in Crossley v Crossley where there is a factor of such magnetic importance that it must necessarily dominate the discretionary process” but rather that in that case the wife had conceded that there was an agreement that the assets should be divided as to 45% to her and 55% to the husband.

67.  Further, if P’s application is acceded to, for the reason that the “settlement agreement” and the performance of it intertwined with other factual disputes such as the cohabitation of the parties post decree nisi, which is also pertinent to the question of delay on the part of R and the duration of the parties’ relationship, it would mean that witnesses would have to give evidence twice and there would certainly be duplicity of the proceedings.  This would not serve the purpose of saving costs and time.

68.  In C v C [2006] 2 HKFLR 431, where the court below tried the validity of the separation deeds as a preliminary issue, Hon Rogers JA said at para 16 of the judgment,

“16. The other matter to which I would refer is the question of the preliminary issue. In my view, preliminary issues are only of any use if they are going to dispose of the case. They are often a recipe for disaster if they are merely directed to one of the issues which will have to be decided, but which will not dispose of the case. They are in many respects highly undesirable because if it entails, as it did in this case, hearing the parties give evidence, questions of credibility will inevitably be decided by the judge hearing the preliminary issue; this may be embarrassing and difficult for any judge who subsequently may have to decide different aspects of the case. Moreover, if the full ambit of the issues in the case is not ventilated at first, the judge hearing the preliminary issue may well make statements which are found to be unfortunate when it comes to the final full hearing. Quite apart from that, the additional hearings involved in hearing a preliminary issue and, often, consequential appeals, only adds to the time and cost of disposing of a case.”

69.  For the reasons aforesaid, I am convinced that the trial on these preliminary issues would hardly be just and convenient as it would only jack up costs and result in delay.  It must be much more desirable and conducive to justice that the court hears all the evidence in one go.

70.  I do bear in mind that the court has an express duty to actively manage cases to further the underlying objectives of the rules set out in Order 1A, RHC: see PD 15.12, at para 8.  However, for the reasons aforesaid, I do not think it is a proper case where I should exercise the case management power in favour of P.

Orders

71.  For the reasons aforesaid, P’s application is dismissed.

72.  As for the costs, they should follow the event.  I give an order nisi that P do pay the costs of this application with certificate for counsel, to be taxed if not agreed.

Further Directions

73.  With the conclusion that I have come to, the trial dates of 6 January 2015 to 8 January 2015 have become redundant. Ms Yip proposes that 6 January 2015 be used for the FPR hearing, to which Ms Tsui apparently does not take a contrary view.  However, I am mindful that the parties may have further discovery against each other and in any event, the parties’ properties (which probably include the value of some business owned by P) needed to be properly valued if the same cannot be agreed.  In this regard, unless the parties are able to confirm with the court, with reasons, by 3 January 2015 that no further preparatory steps are required to be taken and they are ready for FDR hearing in which event 6 January 2015 shall be used for this purpose; otherwise 6 January 2015 shall be used for direction, with 30 minutes reserved.