TKSF v. TKSF

CACV 2760 of 2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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CIVIL APPEAL NO. 2760 OF 2001

(On appeal from Matrimonial Causes No. 7572 of 1992)

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J U D G M E N T

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Hon Waung J (delivering the judgment of the Court):

We have before us 3 appeals from identical orders made by Judge Saunders in the District Court on 21 May 2001 in 3 separate Matrimonial Causes Actions ("MCAs") whereby the Judgment Summons in each of those MCAs was dismissed. The present 3 appeals against the Order of Dismissal of the Judgment Summons ("Dismissal Order") have been brought by the Petitioners/Judgment Creditors pursuant to an Order dated 24 August 2001 of the Judge in each MCA granting leave to the Petitioner to appeal from his Dismissal Order. Since the issues involved in the appeals are identical, we consider it appropriate to write just one judgment for all the 3 appeals.

2. The Judgment Summons in each case was issued by the Petitioner Judgment Creditor wife as result of the husband failing to pay the maintenance and/or costs ordered by the Court. The dates of the Judgment Summons were as follows:

MCA 7572/92	17 January 2000
MCA 8496/97	25 June 1999
MCA 8586/95	3 February 1998

3. In each case, notwithstanding the issue of the Judgment Summons, the husband as Judgment Debtor failed to pay. As we understand from Miss Cheng who appears on the instructions of the Director of Legal Aid for the three Petitioner wives, this is a common feature in many of the matrimonial cases in the District Court where repeated efforts have to be made by Legal Aid Department on behalf of the wives who are judgment creditors to seek payments by way of judgment summons.

4. A brief recital of the history of MCA 8586/95 will illustrate the constant frustration faced by the judgment creditor wives and their lawyers to obtain payments from the judgment debtor husbands. On 3 February 1998, there was the issue of the Judgment Summons by the wife for the recovery of some $106,930 arrears of maintenance ordered by the Court. On the return date of that Judgment Summons on 19 March 1998, the husband did not attend and the Judge (Au-Yeung) made an order adjourning the Judgment Summons to 26 May 1998 and requiring the attendance of the husband on 26 May 1998. The husband attended on 26 May 1998 and promised the Court he would pay the outstanding amount of some $130,930 and costs. The Judge (Day) ordered the Judgment Summons adjourned sine die. The husband again failed to pay so the Judgment Summons was restored and on the hearing of the restored Judgment Summons on 9 October 1998, again the Court (Au-Yeung) had to make an order to adjourn and that the husband to attend at the next hearing on 25 November 1998. This same pattern then continued with hearings on 25 November 1998 (Day), 28 October 1999 (Remedios), 3 January 2000 (Jenkins), 17 April 2000 (Chan), 5 June 2000 (Jenkins), 11 December 2000 (Jenkins) and 1 March 2001 (Christie). On 1 March 2001 the Order made by Judge Christie was that the husband was to attend at the adjourned hearing of the Judgment Summons on 21 May 2001.

5. In the other two cases, there were the similar common features of repeated appearances before the Court because of the Judgment Debtor husbands not attending or failing to make payment as promised to the Court. In MCA 8496/97, the court appearances were on 18 December 2000 (Christie) and on 8 March 2001. Judge Christie made an order on 8 March 2001 adjourning the Judgment Summons to 21 May 2001 because of the non-attendance of the husband and he also ordered the attendance of the husband on 21 May. In MCA 7572/92, the court appearances were on 22 September 2000 (Chan), 10 November 2000 (Chan) and 5 March 2001. Judge Christie made an order on 5 March 2001 adjourning the Judgment Summons to 21 May 2001 because of the non-attendance of the husband and he also ordered the husband to attend on 21 May 2001.

6. Very unfortunately, on 21 May 2001 when the husband in each of the 3 cases failed to attend, this familiar pattern was broken. Judge Saunders dismissed each of the 3 Judgment Summons on the ground that the Judgment Creditor wife was absent.

7. At the hearing on 21 May 2001, the wife in each of the 3 cases was represented by the Miss Fung of the Director of Legal Aid and there did not seem to be any necessity for the wife to attend Court personally.

8. MCA 8496/97 was called on first. The transcript of the proceedings shows this exchange:

Miss Fung: Yes, your Honour. Both the petitioner and the respondent are absent today. In view of the situation, may I ask for another adjournment.

Court: No, if the petitioner is not going to bother to come to court the judgment summons is dismissed. No order as to costs. If she wants an order she can come to court. Thank you.

Miss Fung: Yes, your Honour."

9. The other 2 cases (MCA 8586/95 and MCA 7572/92) were similarly dismissed by the Judge. All three cases were dismissed on the basis of the absence of the Judgment Creditor wives even though they were represented by solicitor of the Legal Aid and even though in all these judgment summons cases, the usual practice was invariably to adjourn the hearing to a new date with the court sometimes even issuing a warrant of arrest against the husband (see Order of Judge Jenkins of 3 January 2000 in MCA 8586/95).

10. The summary dismissal of the Judgment Summonses on 21 May 2001 came as a total surprise to the Legal Aid Department and at the hearing of this appeal, it was submitted that the Judge was in error when he dismissed the Judgment Summonses. We have to say that we agree.

11. First, as a matter of general approach, when a party is represented by solicitor or counsel, and there is no statutory provision or previous order requiring a party to be personally present in court, an application of that party should not be dismissed on the ground of the absence of that party. When the party's lawyer is in court, the party is better off earning a wage or looking after her business or children then to spend time in court unnecessarily.

12. Secondly, the nature of a judgment summons is such that it generally does not require the personal attendance of the judgment creditor at the hearing where she is represented by counsel. Judgment summons under Rule 87 of the Matrimonial Causes Rules ("Rules") is a form of execution of judgment to recover the judgment debt (court's payment order). The presence of the judgment debtor and his books and documents are essential because that is the means whereby the judgment creditor's lawyers can find out what assets are available for execution, in other words, find out where the money is.

13. Thirdly, the Judge ignored the express provisions of Rule 87(5)(b) and (c), namely, upon the non-attendance of the judgment debtor to adjourn the judgment summons to a new date requiring the judgment debtor to attend on that day [Rule 87(5)(b)] or to make an order of committal against the judgment debtor [Rule 87(5)(c)]. The Judge should certainly not make an order dismissing the Judgment Summons.

14. Fourthly, if the Judge had given Miss Fung a chance to properly address the Court and/or given himself time to study each of the three files, he would have known the history of these Judgment Summonses and the efforts made by the Judgment Creditors' lawyers to pursue recovery of the judgment debts. No dismissal order would then have been made on the assumption that the Judgment Creditors were no longer interested in the proceedings.

15. Fifthly, the Dismissal Orders were apparently made hastily (probably as result of a long list that day) when the Judge was under the mistaken impression that the Judgment Creditors could easily issue new Judgment Summonses. The Judgment Creditors could not. Having regard to the principle of finality of litigation, a dismissal of an application will at the least arguably disable fatally or seriously that party from pursuing again that same remedy which was dismissed. (see Leung Kwok Hing v Sayo Electric Trading (1992) 2 HKC 509 at page 514, Keith J). The bringing of this appeal is the proof that to protect itself, a party on the dismissal of its application has no choice but to appeal that dismissal order rather than run the risk of being subsequently totally barred.

16. In these circumstances, the appeal of the Petitioners must be allowed with costs and each of the Dismissal Orders must be set aside. The Respondent in each case should also pay the costs of the appearance of the Petitioner on 21 May 2001. Each Judgment Summons must be restored for hearing as soon as possible before another judge.