GRACE ING YNG SHONG HAMLETT v. MICHAEL BERNARD HAMLETT and Another

IN THE COURT OF APPEAL

1993, No. 100
(Civil)

Headnote

Interlocutory injunction pending divorce proceedings - Injunction can only be granted to protect applicant's legal or equitable right - Husband sought to interfere with wife's possession of former matrimonial home by injunction. Held (Court of Appeal): Injunction ordered by District Judge must be set aside.

IN THE COURT OF APPEAL

1993, No. 100
(Civil)

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J U D G M E N T

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Litton, J.A. (giving the judgment of the court):

1. The appellant is the petitioner in divorce proceedings instituted in March 1992. For the purposes of this judgment we will refer to her as the wife although the marriage which took place in Taipei is not admitted by the respondent husband. The husband's Answer and Cross-petition was filed in October 1992. The matter before us concerns the former matrimonial home, Lot 1 RP in DD 222, Wong Chuk Shan, Sai Kung, in which the wife has resided since about July 1990. In January 1992, the husband left the matrimonial home and has since about that time resided with the second respondent Jessica Tan Yan Lee at 4C Alice Court, 43 Broadcast Drive, Kowloon. No decree of divorce has been granted and no proceedings under section 7 of the Matrimonial Proceedings and Property Ordinance have been undertaken with regard to the assets belonging to the parties.

2. The house is held in the name of a limited company: a shelf company acquired for the purpose in which the wife owns 40% of the shares and the husband 60%. It is plain on the evidence before us that both parties have made substantial contributions to the purchase and refurbishment of the house and the husband is at present discharging the mortgage payments. There is no doubt that as things stand, and by arrangement of the parties, the wife remained in possession of what had been the matrimonial home and is now in lawful and exclusive possession of the house which is her home.

3. From about mid-1992 the wife formed a relationship with an old acquaintance, a Mr. Pentti, and conceived a child by him. Her daughter was born in February 1993. Mr. Pentti came to Hong Kong for the birth and remained temporarily in Hong Kong on a visitor's visa. He lived for a short while in the house with the wife and his new born daughter.

4. On 17 March 1993 the husband took out a summons for an order in these terms:

"That the Petitioner, her servants or agents shall be restrained and an injunction be granted restraining her from permitting or allowing into occupation of the former matrimonial home situated and known as Lot 1, R.P., D.D. 222, Wong Chuk San, Sai Kung, New Territories, any person who is not a party to these proceedings without the prior written consent of the 1st Respondent or further order of this Court."

5. The matter was eventually heard by Her Honour District Judge Barbara Chan and the order that she made which is the subject now of this appeal is in these terms:

"It is ordered that the petitioner, her servants or agents be restrained and an injunction be granted restraining her from permitting or allowing into occupation of the former matrimonial home .... any person who is not a party to the proceedings, other than the child of the petitioner and the maid of the household for period in excess of 10 days in any given six months without the prior written consent of the 1st respondent or further order."

6. Against that order the wife now appeals to this court.

7. What the husband sought and obtained in the court below was an interlocutory injunction which the court can only lawfully grant for the purpose of protecting some legal or equitable right. See Lucas v. Lucas [1992]2 FLR 53 at 58. The husband by his summons sought to interfere with the wife's right of possession of the house, pending the hearing of the petition or application for ancillary relief. On what basis does the husband assert his right to interfere in this way? Not on account of some right of possession which he claims is superior to or even equal to that of the wife, but simply because he has some underlying beneficial interest in the house through his shareholding in the company. The judge in her short judgment said this:

"The 1st Respondent does have the right to enforce his proprietary rights over the property to require that 3rd parties should not reside in the property without his consent. Despite consideration of all the circumstances of the parties' relationship and behaviour as referred to in the pleadings and affidavits in support of and in opposition to the application and the fact that the 1st Respondent left the matrimonial home to cohabit with another woman, I have to grant this application and the injunction sought with amendments to exclude its application to the Petitioner's child by her lover."

8. The "proprietary rights" do not - and this is common ground - include any right vested in the husband of possession of the home. The fact that the husband has some equitable interest which might on a subsequent application under 7 of the Matrimonial Proceedings and Property Ordinance be satisfied by a charge on the house is wholly irrelevant to the matter in issue. For present purposes the husband has no greater right than, say, the bank mortgagee.

9. Miss Mok on behalf of the husband argues that his proprietary interest in the house might be violated by Mr. Pentti residing in the house. His residing there might, Miss Mok argues, lead to some assertion of claim on Mr. Pentti's part which could damage the husband's proprietary interest. It is said that by taking no action the husband might be deemed to have acquiesced in the arrangement, thereby giving rise to some claim of some kind by Mr. Pentti on the house. She said that the husband might have great difficulties later on in evicting him if he should in subsequent proceedings acquire possession of the house.

10. We fail to see the validity of these arguments. Mr. Pentti is in the house as a bare licensee of the wife. By residing there he does not become a tenant, nor does he acquire any rights of any kind which he might assert against the husband.

11. It was submitted by Miss Mok that the only right the wife has in relation to the house is a tenuous personal right which might be defeated by misconduct, and which she could only assert through the limited company which is the registered proprietor of the house. Indeed, at one point in her argument, Miss Mok went so far as to contend that, through her "misconduct" the wife's right to occupy the house has been terminated by operation of law. We cannot see the validity of this argument either. The stark fact is that the wife has sole possession of the house by arrangement of the parties; how such an arrangement came about is not relevant; there is no such right at the moment vested in the husband which could be protected by the kind of interlocutory order which the District Judge made.

12. It must be emphasized that on an application for interlocutory relief of the kind made by the husband, the court is not concerned with what the position might finally be if and when an application is made by one or other of the parties to the marriage for property adjustments under s.7 of the Matrimonial Proceedings and Property Ordinance. Having no right of possession in relation to the house there is nothing which the husband, by proceedings under section 21L of the Supreme Court Ordinance, could seek to protect. The actual order made by the District Judge, as can be seen, is arbitrary. On what basis it was thought right to permit a licensee to stay in the house for, say, 9 days but not 10 days in any given 6 months has not been explained. Nor has it been explained what significance those 6 months might have. In our judgment, the order of the learned District Judge cannot stand. The appeal must be allowed and her order dated 14 May 1993 in these proceedings must be discharged.

13. As to the costs, we regard this as a special case. The order for costs will therefore be as follows:

(1) That the wife should have the costs of the appeal.

(2) That the judge's order for costs must be set aside and there will be an order for costs in favour of the wife of all the proceedings in the court below commencing with the application dated 17 March 1993.

(3) That all the costs which we award by this order shall be on a common fund basis. The costs to be taxed and paid forthwith.