NLT v. LYKJ

CAMP 159/2019

[2020] HKCA 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 159 OF 2019

(ON AN INTENDED APPEAL FROM FCMC 8680/2012)

________________________

________________________

___________________

JUDGMENT

____________________

Hon Lam VP (giving the Judgment of the Court):

1.  We conducted an oral hearing on 16 August 2019 of this renewed application for leave to appeal against the order of Judge Melloy on 17 May 2019 in FCMC 8680/2012. Leave to appeal was previously refused by the Judge on 26 June 2019.

2.  At the hearing of 16 August 2019, a new objection by the husband to the release of undertaking was about the scope of the release.  It was not an objection raised before Judge Melloy.  It was suggested before us that the parties might come to agreement on the scope. Though time was given for the solicitors to reach consensus, they were unable to come to final agreement due to the quantity of documents involved.

3.  At the same time, the Court made some observations about the conduct of the case and the proportionate mode to resolve the dispute.  The Court voiced concern over proliferation of proceedings and having the matters heard by the Family Court in parallel with proceedings in the High Court.  The Court urged the parties to come to a sensible way of dealing with the matter so that all the disputes can be litigated and resolved in one court. 

4.  The application was adjourned to allow the parties to have time to reach agreement on the way forward.

5.  Despite some efforts on the part of the parties, they have yet to reach full agreement on the scope of release of the undertaking.  In the joint letter of 20 November 2019, the solicitors asked for this issue to be adjourned for argument with 2 hours reserved.

6.  At the same time, both parties agreed that all the proceedings should be heard in one court.  Unfortunately, there is no agreement on the proper forum: the Petitioner (wife) said the matters should be heard in the Family Court with the plaintiffs in the High Court Actions being joined as third parties in FCMC 8680/2012 and the three High Court Actions should be stayed in the meantime; the Respondent (husband) said the matters should be heard in the High Court with the family proceedings transferred to the High Court as well. 

7.  Bearing in mind that the matter before us is only an application for leave to appeal, we should not pre-empt how the Family Court or the Court of First Instance would deal with the procedural disagreement between the parties.  However, based on the materials before us, we are of the firm view that (as both parties agreed) it would be plainly wrong for these matters to be litigated in different courts. 

8.  Moreover, from what we have been told, it would appear that the High Court Actions are spin-offs from the matrimonial proceedings.  They were filed after the wife advanced ancillary relief claims in respect of the properties.  The husband did not defend the High Court Actions.  Insofar as the property disputes in the High Court Actions being in substance steps taken to resist the wife’s claims over the properties in her ancillary relief application, the Family Court does have jurisdiction to deal with the matters irrespective of the value of the properties.  Insofar as the real objection of the husband is the alleged “prejudicial view” held by Judge Melloy, the requisite application can be made if he could make out a case of apparent bias. 

9.  We stress that what we said above is based on what we have seen and heard so far and we do not pre-empt the eventual decisions by the Family Court or the Court of First Instance on the applications of the parties to facilitate the matters to be heard by the same court.

10.  Since all the matters should be heard by one court, we cannot see any scope for limiting the release of the undertaking as suggested by counsel for the husband.  The interest of the husband on privacy on these documents would be safeguarded by the implied undertakings of all litigants in respect of documents disclosed in the course of litigations. There is no point in adjourning the matter for a two hour hearing to go through the documents for that purpose.  In any event, it is not the function of the Court of Appeal to entertain such kind of request for the first time.

11.  We are also satisfied that it was within Judge Melloy’s power to grant the release in the way she did in the special circumstances of this case.  There is no reasonable prospect of success in the intended appeal.

12.  We dismiss the summons of 10 July 2019 accordingly.  We further order the husband to pay the costs of the wife in this application forthwith.  Having considered the updated Statement of Costs of the wife, we fix such costs at $150,000.