DF v. MF (nee Z)

FCMC No. 17358/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 17358 OF 2013

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DECISION
(DISCLOSURE)

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1. This is the Respondent Wife’s application for leave to serve, and if so granted for the Petitioner Husband to answer within 28 days her 3^rd Questionnaire annexed to her summons dated 9^th December 2015 for the purpose of their ancillary relief trial after the parties had earlier failed to settle essentially their dispute over the division of their very substantial assets before the FDR Judge.

2. It is fair to say that the main difference between the parties, or as the Husband puts it, the stumbling block to their settlement, is the appropriate identification and/or calculation of the matrimonial assets or family pot for division between them, and it is the Wife’s case that the whole purpose of her questionnaire is to ascertain whether the Husband has fully and properly disclosed all his resources before the parties can continue to engage in meaningful negotiations in the hope that a trial can be avoided, and while the Husband is equally keen to settle the dispute through negotiations and mediation, he believes that many of the 33 questions and requests listed in the Wife’s 3^rd Questionnaire are unnecessary, oppressive, irrelevant or simply a fishing exercise which should not be allowed by the court.

3. As a matter of better case management, such discovery application which is interlocutory should have been more appropriately dealt with by the FDR Judge before the FDR hearing who was no doubt much more familiar with the facts of the case rather than being raised before me as the Listing Judge at the pre-trial stage, but it is also true that some of the questions or requests have since the issue of the summons been answered or complied with by the Husband, or were no longer in issue by the time her summons came before me and for which the Husband has agreed to answer within 28 days, but before proceeding to consider whether he should answer those questions which have remained in dispute, it would of course be necessary to first set out some relevant background against which the Wife’s requests and the Husband’s objections must be premised.  

Background

4. This has been a long marriage lasting more than 30 years with 3 children who are now all adults. The Husband now aged 68 is a medical doctor in private practice while the Wife is a 63-year old housewife. As noted above the parties have amassed substantial assets during their marriage, with total worth put in excess of HK$536 million by the Husband’s latest account according to his Asset Schedule attached to his 2^nd Affidavit of 7^th December 2015 [PTR2/162].

5. The Asset Schedule of 4 pages of spreadsheet consists obviously of numerous landed properties, banks and securities accounts, private companies and investments, as well as personal items including arts collections many of which necessitated formal valuation [PTR2/212 – 215].

6. That Schedule in fact first appeared in an open letter dated 30^th September 2015 from the Husband’s solicitors to the Wife’s [PTR2/253-255] which contained his open proposal, and in which he identified the stumbling block to settlement and addressed the issues concerning certain assets comprising essentially of a property and certain bank accounts of the Wife’s mother but managed by the Wife, and the Husband’s share in his mother’s estate consisting mainly of her artworks, which together form essentially the crux of the matters now before me, and which was helpfully summarised by Ms Theresa Chow for the Husband in her Skeleton Submission as follows:

“15. As described in the open letter, the stumbling blocks to settlement appear to be in respect of 2 sets of properties (“Disputed Assets”):-

(i)  Wife’s assets: a Coombe Road property and 2 Deutsche Bank accounts allegedly held on trust by the Wife for her mother of nearly 100 years old. The Wife is the registered owner of each of these assets. Quite apart from arguments on beneficial ownership, these properties must be taken into account as they are resources available to the Wife “in the foreseeable future”: s.7 MPPO.

(ii)  Husband’s non-matrimonial assets, being:-

(a)  The Husband’s 1/8 share in his late Mother’s art works. In 1999 prior to the Mother’s passing, she had asked that a foundation be set up to promote her legacy to the world. The FZL Foundation (“Foundation”) was started in 2003 and numerous exhibitions were held of donated pieces in world-renown museums throughout the years, including the Ashmolean Museum in Oxford University. The Foundation was formally incorporated on 17/4/2014.

(b)  Emerald Gardens, a property purchased by the Husband’s late Mother which the Husband holds in joint tenancy with his brother, J, on trust for his brother, H, who resides there with his family throughout the years.

16. It appears in W’s 2^nd §§65-90 that the Wife disputes the constituents of the matrimonial pots as proposed in the Open Letter, but not so much the value attributed thereto nor the equality principle.

17. The Wife says the Foundation was a sham, that it was “incorporated as a ‘corporate veil’ to ring fence the [Husband]’s late mother’s estate and to avoid [her] claim…

18. The justification for drawing the battle lines this way appears to be that the Mother’s estate should be included in the pot since the Husband insists on including what are allegedly the Wife’s mother’s assets (W’s skeleton §5(17))… as a matter of law, the Disputed Assets are different in nature:-

(i) The Wife is the registered owner of the bank accounts and the Coombe Road property. Prima facie, these are matrimonial assets. She bears the burden of proving that beneficial ownership does not follow.

(ii) The setting up of the foundation, on the other hand, is well documented. The Wife faces a high hurdle in demonstrating that this charitable organisation is a sham, and that the “corporate veil” should be lifted. No evidence of impropriety has been adduced to demonstrate that the Foundation has been set up to avoid or conceal liability and indeed there can be none, given the long-standing intention of the Mother in as early as 1999 to promote her legacy in such a manner.”   

7. The Wife’s position however is not so simple as put by the Husband, as she explained in her narrative affidavit in support of her ancillary relief claim, which is her 2^nd Affidavit filed on 9^th November 2015 at §§103-105 [PTR2/110-111]:

“My Ancillary Relief Claim

103. My position is this is not a “needs” case. In the Petitioner’s solicitors’ letter dated 6^th March 2015, it was stated that the petitioner was keen to achieve a clean break and that this is an appropriate case for a 50/50 capital division. In his latest open offer dated 30^th September 2015, the petitioner put forward his proposals based on the principle of equal division. For the avoidance of doubt, I do not accept the Petitioner’s calculation of the family pot.

104. The Petitioner has understated his assets, in particular the value of his business. My accountant … advised me that COS and Dr DF & Associated Limited, in which the petitioner is the majority shareholder of 52%, are very profitable business. The respective values of the two companies adopted by the petitioner are grossly understated. It possibly explains why the petitioner has refused to answer a lot of my questions in relation to these companies.

105. Although the Petitioner is at the age of 68 years, he still has the ability to work and earn profitable income in addition to his capital returns. On the contrary, it is impossible for me to re-enter the job market after having been a housewife for 24 years. I consider it very unfair and unreasonable to me if the petitioner was allowed to divide the family assets in equal share based on his calculation where (i) the true value of the Petitioner’s business and future income were to be ignored; (ii) my mother’s assets were to be taken into account; and (iii) the Petitioner’s share in his late mother’s estate was to be excluded. It would mean that the Petitioner would be privileged and much better off whereas my position would be severely prejudiced. I respectfully ask this Honourable Court to take these factors into consideration.”  

8. Hence it seems clear to me that it is not just the true extent or constituents of the matrimonial pot that the Wife takes issue with, but also the value of the Husband’s business and income which Mr Russell Coleman SC argues on her behalf that necessitate those outstanding questions raised over them and which are now before me, but before considering whether that is so and that in the circumstances the Husband should answer them, it is of course necessary to first identify the applicable legal principles.   

Applicable Principles

9. The law on disclosure is well established in that it should be relevant to the matters in issue between the parties, but in financial proceedings of matrimonial litigation, what is relevant must be considered together with several special features of such proceedings: Firstly, the duty of both parties to make full and frank disclosure to the court of all their financial resources; Secondly, the court’s statutory duty to have regard to all those matters set out in Section 7 of Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) with the underlying objective to arrive at a distribution of family assets which is fair as between the parties as laid down by the Court of Final Appeal in LKW v DD [2010] 13 HKCFAR 537; and Thirdly, as pointed out by Dunn J in B v B (Matrimonial Proceedings: Discovery) [1979] All ER 801, it is also a feature of such financial proceedings that very wide ranging issues are very often involved, as he stated at p809 of his judgment:

“The third requirement before an order for discovery can be made is that the documents should be relevant to the matters in issue between the parties. It is a feature of financial proceedings in the Family Division that very wide ranging issues are involved. In O’D v O’D [1976] Fam. 83, 90, Ormrod LJ said:

‘In approaching a case like the present, the first stage should be to make as reliable an estimate as possible of the husband’s current financial position and future prospects. In making this assessment the court is concerned with the reality of the husband’s resources, using that word in a broad sense to include not only what he is shown to have, but also what could reasonably be made available to him if he so wished. Much will depend upon the interpretation of accounts, balance sheets and so on, which will require in many cases the expert guidance of accountants. It will rarely be possible to arrive at arithmetically exact figures. The court must penetrate through the balance sheets and profit and loss accounts to the underlying realities, bearing in mind that prudent financial management and skilled presentation of accounts are unlikely to overstate the husband’s real resources and, on the other side, that there may be a great difference between wealth on paper and true wealth. Valuations may overstate or understate the results of realisation of assets, many of which may not be realisable within the immediate or foreseeable future.’

10. His Lordship then proceeded to summarise the principles applicable to discovery at p811:

“I will conclude the part of my judgment by summarising my conclusion as to law.

(1) A party to a suit must disclose all the documents in his possession, custody or power which are relevant to the matters in issue. The court has discretion whether or not to order him to make such disclosure, and also has discretion whether or not to order him to produce the documents for inspection by the other party or the court.

(2) The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(3) Whether or not documents of a company are in the power of a director who is a party to the litigation is a question of fact in each case. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document”. If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company.

(4) Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them.

(5) The discretion is a judicial discretion, and in exercising it the court will have regard to all the circumstances. The court will balance the relevance and importance of the documents and the hardship likely to be caused by the wife by non-production against any prejudice to the husband and third parties likely to be caused by production. It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.” 

11. The Learned Judge however also made the following observations on relevancy in the context of financial proceedings in matrimonial cases at p809:

“It is another feature of such proceedings that one party, usually the wife, is in a situation quite different from that of ordinary litigants. In general terms, she may know more than anyone else about the husband’s financial position: she will know at first hand of the standard of living of the family during the marriage; she will know about the furnishing and equipment of the matrimonial home, and of the physical possession of the husband, and perhaps the appropriate amount of cash kept in the house. She may also know, from conversation with the husband in the privacy of a matrimonial home, the general sources of his wealth and how he is able to maintain the standard of living that he does. But she is unlikely to know the details of such sources or precise figures, and it is for the reason that discovery now plays such an important part in financial proceedings in the family division.

Applications for such discovery cannot be described as “fishing” for information, as they might be in other division. The wife is entitled to go “fishing” in the Family Division within the limits of the law and practice.”

12. It is therefore with these principles in mind that I now turn to consider those outstanding questions which have remained in dispute in the same order of the Wife’s 3^rd Questionnaire but bypassing those already answered or are going to be answered [PTR2/224].

The Questions

13. Question 6 [PTR2/226]: This question essentially concerns a particular account of the Husband arose from the Wife’s recent discovery, as she alleged in her said 2^nd Affidavit [PTR2/109], of some cheque stubs of the parties’ joint HSBC AssetVantage Current Account for the period of July/August 1993, in which a cheque stub dated 10^th August showed that the Husband had issued that cheque for HK$210,000 and paid into his said account-in-question but which was never disclosed in his Form E. Hence the Wife asks for the usual disclosure of this account, and that if it has already been closed, the documentary evidence thereof.   

14. In his response given in his 2^nd Affidavit at §48 [PTR2/173], the Husband confirmed that it was his account opened in 1984 but was closed on 27^th January 2001 as orally informed by the bank manager on 2^nd December 2015. The Husband also claimed that he can no longer recall any other details of this account but insisted that he has no undisclosed account. Ms Chow therefore submits that the Husband should not be put to additional efforts to ally unjustified suspicion from 1 cheque stub of over 20 years ago.

15. I agree that the source that led to the Wife’s queries over this account may be more than 20 years ago, but the question must be whether the account is still in use today, and given the wealth of the parties, as exemplified by that one particular transaction of HK$210,000 into this account which cannot be said to be an insignificant sum at the time in 1993, hence the reasonable inference that the account may reveal significant activities and/or substantial overall balances if it is still being operated by the Husband today, and I can see why it is important to the Wife that she requires more than just the Husband’s words to be satisfied that the account had indeed been closed years ago before she is willing to return to the negotiation table, which can be, and in my view should have been, easily done by the Husband or his solicitors making a simple request to the bank for a written confirmation of the closure of that account. Accordingly I would allow this question.

16. For the next disputed questions 7, 8 and 9, I propose to deal with them together due to their similar nature.

(a)  Question 7 [PTR2/226-227]: This question arose from the Wife’s allegation that the Husband had once maintained an account no. 13428 with the former Sin Hua Trust, Savings & Commercial Bank Ltd (which was subsequently merged with Bank of China (Hong Kong) Ltd (“BOC”)) before and the statements were sent care of one of his siblings at PO Box #1, Hong Kong, hence her request for the Husband to make proper disclosure about this account with copies of bank statements from November 2012 to date, and if it has been closed, the documentary evidence thereof.  

(b) Question 8 [PTR2/227]: This request requires the Husband to confirm whether he has in his own name, in joint name with others, or through corporate vehicle or otherwise, in a bank account(s) or any money transaction at Wood Forest National Bank, in which he has an interest whether legal, equitable or beneficial, or any communication with or via the said bank.

(c)  Question 9 [PTR2/227]: This is a catch-all request for the Husband to state whether he holds any other bank accounts in Hong Kong or elsewhere, whether held solely, jointly, through corporate vehicles or otherwise, in which he has an interest whether legal, beneficial or equitable, but has omitted to disclose in these proceedings, in which case he is to provide copies bank statements from November 2012 up to date.   

17. In reply Ms Chow submits that since the Husband has already confirmed in Answer 16 of his 2^nd Answer that he does not have any other bank, securities and/or investment accounts in Hong Kong or elsewhere other than disclosed, and hence all these questions are fishing and should not be entertained.

18. The Husband’s Answer 16 [P11/2475-6] was in fact in response to the Wife’s earlier and similar questions in respect of his interests in any other bank, securities or investment accounts in Hong Kong or elsewhere including but not limited to Deutsche Bank and UBS, in which he stated as follows:

“The Petitioner confirms that he does not hold any other bank and/or securities and/or investment accounts, in Hong Kong or elsewhere than those already previously disclosed. The Petitioner confirms he does not hold any account with Deutsche Bank or UBS. To the best of the Petitioner’s recollection, he has never held any account with Deutsche Bank and/or UBS.”

19. Given the Husband’s earlier answers were in relation to those particular accounts specified by the Wife, I agree with Mr Coleman that the Wife is entitled to seek a definitive confirmation from the Husband which he could have easily dealt with by a simple yes or no answer rather than incurring time and costs to argue against them, in particularly when he was and still is keen to bring the Wife back to negotiation, and by answering these questions without any fuss should be obvious to him would go a long way to alleviate any remaining doubt the Wife may have about his financial disclosure. I would accordingly allow these questions.  

20. Question 18: In his earlier answer to a question of the Wife’s 2^nd Questionnaire, the Husband confirmed that he is the majority shareholder of 7 companies listed therein. The Wife now seeks production of copies of all the bank statements and credit card statements of these 7 companies for the period from November 2012 to date.

21. Mr Coleman submits that these documents will reveal the cash flow situation of the companies and that whether the Husband has any expenses paid by the companies, that as the majority shareholder and director the Husband must have authority to access the statements of the companies, and that in any event this is just a photocopying job and ought not to be controversial.

22. Ms Chow however submits that since the Husband has already provided the audited statements of these companies for 2 years save for those which are dormant of which none is available, and as the Wife has not adduced any evidence from her accountants or experts that those disclosed company accounts cannot be relied on, she argues that the Wife has plainly failed to provide any reason why they cannot be relied on for disposing fairly of the ancillary relief proceedings, and that her request for their bank and/or credit card statements is simply unjustified.

23. Given that the Husband’s income and benefits derived from those companies is one of the major issues between the parties as far as the Wife is concerned, I am of the view that the Husband should at least first confirm whether he has received, in addition to already stated income, any other payments or benefits from these companies, which is to be verified by production of his management accounts in these companies for inspection by the Wife and/or those appointed by her and with supply of copies upon request. Subject to the outcome of such inspection, I agree that for the time being it would not be necessary for there to be production of bank accounts or credit cards statements of these companies. I so order accordingly.

24. Questions 24 and 27 [PTR2/234] relate to the Husband’s personal art collection of which the Wife seeks coloured photographs and their estimated values with proper basis which Mr Coleman submits as necessary for ascertaining the total worth of the Husband’s assets or for calculating the family pot.

25. Ms Chow for the Husband however argues that since a list of the art collection has already been provided for the Wife which also includes a number of pieces of his mother’s art objects, and as he has stated in both his 2^nd Answer [P11/2489] and his open letter that the Wife is welcome to share his collection equally, he suggests that she may attend his premises with her own expert for inspection and valuation purposes.

26. With respect I find this suggestion of the Husband unrealistic and unhelpful, as even assuming the Wife is willing to share his collection, in the absence of their valuation either by agreement or from expert, the Wife would not be in any position to choose or even to discuss or negotiate with the Husband as to which items to select, as their value would no doubt be a factor for consideration, and of which she is certainly also entitled to consult her own experts if necessary before deciding whether to accept the Husband’s proposal. In the circumstances I find her request for coloured photographs and valuation of the Husband’s art collection both necessary and reasonable, and if the Husband does not wish to take their photograph himself, he should allow the Wife and/or those appointed by her to do so, and I so order accordingly.   

27. Questions 25-26, 28-30 [PTR2/234-236]: These questions relate to the Husband’s mother’s estate, of which as noted above he has claimed to have already given away his share during the marriage, but the Wife submits that he should still be required to provide details of what he has given away so that their value can be assessed and included in the family pot, particularly so when he has insisted on including her mother’s assets into the calculation of the pot. 

28. Ms Chow however argues that any question regarding the mother’s estate is fishing and irrelevant, as the court is not tasked with ascertaining inheritance arrangement and estate administration of the parties’ extended families. To understand the rationale of the Husband’s opposition to these questions, it is necessary to go into more details of the mother’s estate and the Husband’s alleged arrangement of his share, of which he is said to have provided in his 1^st Answer [P6/1267-1268] and 2^nd Answer [P11/2491-2494], and which have been helpfully summarised in Ms Chow’s Skeleton as follows:

(i)  the mother passed away in 2006;

(ii) her last will has however been lost since 2010;

(iii)  the Husband and his sister AC are the executors of the last will;

(iv)  based on mutual understanding and agreement of all the beneficiaries under the last will, essentially the Husband and his 7 siblings, it has been decided that it was unnecessary to obtain a grant of probate;

(v) the mother’s estate consists essentially of her artworks and those of other artists;

(vi)  certain artworks by artists other than the Mother have been sold via Christie’s auction house before 2011. The proceeds have been distributed to the Husband and reflected in his accounts. They are intermingled with matrimonial assets and the Husband does not seek to quarantine them from the family pot;

(vii)  the Foundation was started in 2003 prior to the mother’s passing on her instruction to which the Husband pledged his 1/8 share of the mother’s artworks;

(viii)  the family did not initially pursue formal registration of the Foundation as the siblings had different views on its ultimate objectives, but a consensus was eventually reached in 2011, and a limited company was subsequently registered in 2014;

(ix)  the Husband has been handling the storage, maintenance and exhibitions of the mother’s artworks since 2003;

(x) there has been no sale of the mother’s artworks under the Husband’s care since 2003;

(xi)  the siblings have stated that the Husband is not at liberty to reveal details of the mother’s art objects because of the family’s conscious decision in 2006 not to do so.

29. The Wife however disputes the Husband’s claim to have no pecuniary interest in his mother’s artworks or his pledge of his 1/8 share to the Foundation, as she said in her 2^nd Affidavit [PTR2/105-106]:

“83. Whilst the Petitioner insists that my mother’s assets should be taken into consideration, he has “hidden” his one-eighth share in his late mother’s estate in FZL Foundation (the “Foundation”). The Petitioner claimed that his 1/8 share in his mother’s artworks and objets d’art was pledged to the Foundation “for the benefit of the people of Greater China”).

84. Prior to the petitioner’s mother passing away, I recall in or about 1996, I accompanied the Petitioner to a dinner … the Petitioner’s sister AC … donated a painting of her mother for auction. It was sold … at a price of HK$500,000. At the time, the Petitioner’s mother was still alive. In October 2013, Sotheby’s auctioned a painting by the Petitioner’s mother and struck a price at HK$1.6 million.

85. Further, I understand that the petitioner, AC and probably the other siblings have gifted their mother’s paintings to their respective friends … Since the death of the petitioner’s late mother, there have been numerous auctions of her artwork. In recent years, some of the mother’s works were sold in the region of HK$500,000 to HK$1.9 million. In October 2014, there was an exhibition of the mother’s artwork at the Ashmolean Museum in Oxford, UK, the opening of which I believe the Petitioner attended. Some of the works were subsequently sold via Christie’s and/or other auction houses. However, I am kept in the dark of the details of what art collection has or has not been sold by the petitioner and his siblings as he has refused to disclose them. In addition to the late mother’s artwork, she had other collection of paintings of reputable artists and also numerous snuff bottles and imperial jade seals. The Petitioner has also failed to disclose the whereabouts of his share of the net proceeds of the sale of the Mount Verde Flat and the artwork with documentary evidence.

86. In any event, I strongly believe that the Petitioner and his twin sisters have control over his mother’s estate or at least, are the persons administrating the estate. Given that the Petitioner and AC are the executors of the estate, they have discretion when to sell their mother’s artwork and objets d’art. It is worth noting that the Foundation was not incorporated until 27^th April 2014 after these proceedings were commenced. Therefore, I have reasons to believe that the Foundation was specifically incorporated as a “corporate veil” to ring-fence the Petitioner’s late mother’s estate and to avoid my claim…”   

30. It is clear for these reasons that the Wife now seeks further information about the Husband’s share in his mother’s estate by the following questions:

Q25(a): details with all relevant documentary evidence showing the sale of the objets d’art of the late mother including but not limited to the dates of the sale, sale amount, net proceeds and destination of the Husband’s share thereof;

Q25(b): confirm with all relevant documentary evidence whether 2 of the siblings HF and PF (or his estate) had received their respective share of the net proceeds of sale of the mother’s artworks;

Q26(a): provide copy of all relevant documentation in support of the alleged decision not to obtain a grant of probate of the mother’s estate;

Q26(b): state with documentary proof a breakdown of the estimated value of the mother’s estate by the Husband and his siblings which had caused them to consider that the estate was not valuable;

Q26(c): save for the letter allegedly issued by the Foundation and annexed to the Husband’s Answer of 23^rd May 2014, to provide copy of all relevant documentation in support of the Husband’s alleged agreement that he and his siblings had pledged their respective shares of the art objects of their mother to the Foundation, which include but not limited to deed of family arrangement, agreement between the husband, his siblings with the Foundation, and minutes of the family meeting;

Q28: provide all relevant documents in support of the Husband’s assertion that one of the brothers PF’s share in the mother’s estate has been preserved for his wife;

Q29: confirm whether the late mother had studied painting under the Chinese Master Chang Dai-Chien and whether she had received or acquired any paintings from the late master;

Q30(a): provide details with all relevant documentary evidence showing the sale of the works by the estate, including but not limited to the dates of the sale, the sale amount, the amount of the net proceeds and the destination of the Husband’s share of the respective net proceeds;

Q30(b): confirm with all relevant documentary evidence whether the husband’s brothers HF and PF (or his estate) had received their respective share of the net proceeds of sale of works.   

31. While some of these questions namely Q25(b), Q28 and Q30(b) which concern the shares of other siblings, or Q29 which inquires about the late mother’s past, all of which I fail see their relevancy and would serve no useful purpose, I do agree that the rest of them are clearly relevant in assisting the court to resolve the parties’ dispute over the Husband’s share in his mother’s estate, and which the Husband as both an administrator of the estate and of the Foundation should be in a position to answer. However, as I also note the Wife’s position that she would be prepared not to pursue these question if the Husband agrees not to take her mother’s assets into consideration for ascertaining the marital pot, I am prepared to allow the Husband that option to either confirm his agreement to do so in writing within 7 days or otherwise to answer these questions within 28 days.   

32. As for the last remaining Question 33 [PTR2/237]: the Wifeseeks confirmation from the Husband whether his stepbrother who was born to the late mother in her first marriage is still living, and if not, on what date did he pass away, and whether the mother did make any financial provision for him in her will.

33. Mr Coleman submits that this question simply asks if any financial provisions have been made for the step-brother given the handling of the mother’s estate is full of holes, to which Ms Chow again argues as fishing and irrelevant. For the same reasons given above in respect of questions concerning the other siblings, I am unable to see any relevancy to the parties’ dispute over whether or not the Husband has given away his share in the mother’s estate, and would not allow this question.  

34. To recap, for those questions I have allowed, and subject to the option available to him referred to above, the Husband is ordered to answer them within 28 days. As for the question of costs of and incidental to this application, I propose that they shall be in the cause of the ancillary relief trial, which is an order nisi to be made absolute at the expiration of 14 days.