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CACV 261/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 261 OF 2006
(ON APPEAL FROM FCMC 4070 OF 1990)
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AEM |
Petitioner |
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and |
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VFM |
Respondent |
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Before : Hon Cheung JA and A Cheung J in Court
Date of Hearing : 8 May 2008
Date of Decision : 8 May 2008
Date of Reasons for Decision : 23 May 2008
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R E A S O N S F O R D E C I S I O N
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Hon Cheung JA :
1. The Respondent (‘husband’) made three applications before us :
1. To reopen the appeal which we had given judgment on 10 January 2008 but the order of which was not perfected.
2. To vary the provisional costs order of our judgment.
3. To apply for leave to appeal to the Court of Final Appeal.
2. We refused the three applications with costs to the Petitioner (‘wife’) at the conclusion of the hearing on 8 May 2008. I will now give my reasons.
Re-open appeal
3. The husband argued that the wife had made material suppression of evidence when the appeal was heard on 18 December 2007. Two matters were relied upon. First, the wife failed to disclose that she was cohabitating with another man. Second, she had inherited a substantial estate from her mother who died on 20 November 2007 and probate of her will was granted on 22 April 2008.
4. This issue was brought up on 11 April 2008 when the husband’s solicitor wrote to the wife’s solicitor stating that he had information that the wife was cohabiting with a man since 2003. The letter asked for information about the cohabitation and it also asked for details of the estate of the wife’s mother.
5. The reply came on 22 April 2008. The wife’s solicitor said the wife knew the man since 2003 and they cohabited in August/September 2007. The relationship was known to the husband as the daughter of the family was questioned about it by the husband’s present wife in the summer of 2006. The letter also gave details of where the wife had stayed between the time when she sold her old home, during the decoration of her new home and thereafter.
6. The letter further mentioned that the husband was notified by the wife immediately on her mother’s death; a buyer was found for the house of the mother but the contract could not be exchanged until probate was granted; the wife was not the sole beneficiary because of other small bequests and the wife’s mother wished to provide for the daughter which would not be reflected in her will.
7. The husband’s solicitor obtained a copy of the probate of the mother’s will which was dated 22 April 2008.
Power to open an appeal
8. The power by the Court itself to reopen an appeal when an order has not been perfected is well established. The basis for so doing is where there are exceptional or strong circumstances : Noga v. Abacha [2001] 3 All ER 513; Sun Jianciiang v. Trans-Island Limousine Service Ltd [2004] 1 HKC 533 and Re Kennedy [2007] 5 HKC 75.
Duty to make full disclosure
9. It is also well established that the parties to a matrimonial property dispute must provide correct, complete and up-to-date information which is required by the Court when it exercises its discretion in making orders under the relevant statutory provisions for ancillary relief. Such a duty is not confined to evidence in a full hearing but also to exchange of information leading to the making of consent orders. The requirement to make full and frank disclosure is a continuing one before an order is made : Jenkins v. Livesey [1985] 1 AC 424.
Cohabitation
10. In this case the order of H H Judge Bruno Chan was sealed on 25 May 2006. The husband’s notice of appeal was lodged on 2 August 2006 pursuant to an order allowing him an extension of time to file the notice of appeal. However the husband only applied to fix a date for the hearing of the appeal on 23 April 2007. The appeal was heard on 18 December 2007. As a result there was a substantial lapse of time between the order of Judge Chan and this appeal. Neither party chose to provide the Court with updated information on their respective position when the appeal was heard.
11. It is true that the wife had not disclosed to the Court at the time of the appeal that she was cohabiting with another man but that would only become a material non disclosure if the cohabitation has an effect on the financial position of the wife. From the information disclosed by her so far there was no indication of a material change on that front. Hence I do not regard the cohabitation as a proper ground for reopening the appeal.
Mother’s estate
12. At the hearing before Judge Chan the husband’s solicitor had questioned the wife about her mother’s estate. The wife accepted that she would expect the Court to take into account any benefit that she might receive from the estate.
13. The husband was notified of the mother’s death on 20 November 2007 and he had sent a condolence message to the wife. This occurred shortly before the appeal. However, the Court was not required by the husband’s lawyers to consider the effect of the inheritance when the appeal was heard. In the circumstances, I do not regard it to be proper to reopen the appeal on this ground.
Decision
14. Accordingly the application to reopen the appeal was refused. If the husband considered that there has been a material change of circumstances which affects the financial provision then it is a matter for him to apply to vary the order.
Costs
15. The husband claimed that as a result of the judgment when we changed the percentage of future adjustment, he was saved some $3 million in future payment. This is to be compared with the $1 million received by the wife as a result of the backdating of the maintenance payment. The husband claimed that was a substantial victory of him and he was entitled to the costs of the appeal.
16. I have given reasons why the wife was entitled to 90% of the costs of the appeal. I see no reason to vary the costs order.
17. The application to vary the provisional costs order was refused.
Leave to appeal to the Court of Final Appeal
18. The husband relied on the following points of law of general public importance :
‘ 1. Whether the Court should exercise jurisdiction to allow a party applying for an increase or an Order for periodical payments to seek an increase that takes effect prior to the date of that application and, if so, the principles that would allow a Court to exercise jurisdiction to back date such an increase.
2. Where an agreement is incorporated into a Court Order as to the specific circumstances that result in an increase in other circumstances. If so, what circumstances which would enable a Court to exercise jurisdiction.’
19. Our judgment was based on well established principles and the decision was based on the specific facts of the case. I do not consider that an issue of general public importance is involved.
20. Accordingly this application was also dismissed.
Hon Andrew Cheung J :
21. I agree.
(Peter Cheung)
Justice of Appeal |
(Andrew Cheung)
Judge of the Court of First Instance |
Mr. David Pilbrow, SC, instructed by Messrs Hampton, Winter & Glynn, for the Petitioner
Mr. Gerard McCoy, SC and Mr. Neal Clough, instructed by Messrs Erving Brettell, for the Respondent
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