YSP v. HFF & ANOTHER

CACV 235/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 235 OF 2003

(ON APPEAL FROM FCMC 12363 OF 2002)

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J U D G M E N T

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Hon. Cheung J.A. (giving the judgment of the Court):

The facts

1. The petitioner wife ("wife") presented a petition for divorce on 25 October 2002. The wife alleged adultery and unreasonable behaviour against the respondent husband ("husband"). The children of the family are adults.

2. The petition was received by the husband on 11 November 2002. In the acknowledgement of service dated 18 November 2002, the husband stated that he intended to defend the case. However, no answer was filed by him.

3. The time given for filing an answer is twenty-nine days after the receipt of the petition. The parties agreed that the answer should have been filed on 10 December 2002.

4. On 27 February 2003, the wife's solicitor applied to the District Court registry for direction for trial and requested the cause be entered in the Special Procedure List.

5. By a certificate dated 15 May 2003, the Registrar of the District Court certified that he was satisfied that the wife was entitled to a decree nisi for divorce. On 31 May 2003 the Registrar further issued a notice of the date of pronouncement of decree, stating that the date for the pronouncement would be 18 July 2003.

6. On 2 June 2003, the husband issued a summons asking for leave to file the answer.

7. On 8 July 2003, Deputy District Court Judge D'Almada Remedios rejected the application. The husband now appeals against the judgment. In view of this appeal, the pronouncement of the decree nisi is stayed pending the determination of this appeal.

The husband's explanation

8. The husband's explanation for the delay in filing the answer is this. When he received the divorce documents at the end of last year, he was feeling surprised and unhappy. He did not know how to deal with the divorce. Furthermore he was facing financial difficulties in respect of the loans repayable to the banks. He spent most of his time in dealing with the financial crisis.

9. He had tried to discuss with the wife about discontinuing the divorce but she did not give him a formal reply.

10. He also asked his daughter to persuade the wife to discontinue the divorce.

11. It was only in late April 2003 that he knew his wife would proceed with the divorce. It took time for him to retrieve the financial documents and explain to his lawyers about his situation, especially on his reply to the allegations made by the wife against him.

12. He denied that he had committed adultery or behaved unreasonably.

The principles

13. The following are the relevant principles gleaned from the authorities on how the court should deal with the delay and extension of time by a party in filing an answer to the petition.

1.	The starting point is that under the special procedure the registrar has certified that the petitioner has proved the contents of the petition and is entitled to a decree : Day v. Day [1979] 2 WLR 681.
2.	This being the position an application for extension of time to file the answer should be dealt with by analogy to the principle governing the former procedure of an application for re-hearing after decree nisi : Day v. Day.
3.	This principle is that the application should have been refused unless there were "substantial grounds for the belief" that the decree would have been obtained "contrary to the justice of the case" : Owen v. Owen [1964] P. 277.
4.	Each case has to be dealt with on its own facts : Rogers v. Rogers [1974] 1 WLR 709.
5.	Broadly speaking, the cases may be divided into two types. This division is not exhaustive :
	（1） Where the applicant was not served at all and the proceedings took place without his knowledge. He would get a re-hearing almost immediately.
	（2） The applicant knew of the proceedings but chose not to defend. He then changed his mind again and asked for time. He had to satisfy the court that it was more probable that the decree was obtained contrary to the justice of the case.

See Stevens v. Stevens [1965] P. 147 and Nam v. Nam [1985] 2 HKC 144.

6.	The following are examples of some of the factors the court may consider in the exercise of its discretion in favour of granting an extension of time :
	（1） The delay in filing the answer is not due to the fault of the applicant, but, for example, due to the delay in processing legal aid application or the fault of his legal advisers : Nash v. Nash [1967] 1 All ER 535.
	（2） The delay is of relatively short duration such as a few days : Lawlor v. Lawlor [1995] 1 FLR 269.
	（3） Allegation of adultery contains a stigma which a party may wish to defend : Huxford v. Huxford [1972] 1 WLR 210; Collins v. Collins [1972] 2 All ER 658.
	（4） The conduct of the parties is relevant in ancillary relief; where allegation of adultery or unreasonable behaviour is made against a party and if he is precluded from defending the petition he would be estopped in ancillary proceedings from denying such allegations; further he would also be ordered to pay the costs of the divorce suit : Rogers v. Rogers and Edinger v. Edinger [1990] HKCU 222.

14. In considering these principles, in our view, it is also important to bear in mind that a divorce affects the status of a person. While a petitioner has confirmed the contents of the petition by an affirmation, the allegation against the respondent remains untested in court proceedings.

15. Further, as pointed out in Day v. Day, there are matters which show that a respondent may be in a position of handicap such as the different rules which may give an impression that the answer may be filed at any time before the directions for the trial of the cause had been given despite the other specific rules on time limits. Further no notice is given by the Registrar to the respondent that he is about to consider the evidence with a view to making his certificate that the petitioner has proved his or her case. The first time that the respondent knows of what is happening, is the receipt of a notice of the date and place for the pronouncement of the decree, by which the process of adjudication is over.

The present case

16. In the present case there was a substantial delay of six months in filing the answer and the husband has not taken any procedural steps after the acknowledgement of service to defend the suit. We are, however, not convinced that this is a tactical move by the husband to delay the wife from obtaining a divorce or ancillary relief. What is apparent from his evidence is that he was trying to effect a reconciliation with the wife. He also tried to achieve this through his adult daughter. This is not a case like Day v. Day where the husband's inactivity was described as like that of an ostrich who had hoped that if he kept his head down, the threat of divorce would go away.

17. The wife had applied for ancillary relief on 30 January 2003. The husband wrote to her on 7 February 2003 stating, among other things, that :

“ My silence is not weakness. But I hope the rumour will stop when it reaches a wise man. In order to grant your desire, please formally inform your solicitors that I will not appear in court to make my defence. Anyway, I have consulted three law firms already and their opinion is that due to my financial difficulties, our confrontation at court will cost several hundred thousand dollars. I am willing to accept your request unconditionally."

18. We do not regard this letter as an indication that the husband had no intention in defending the divorce. The content of the letter was a response to the wife's application for ancillary relief. His letter further stated that :

“ Within the next week, I will answer your complaint to the court in a chronological order by listing my 30-odd-year experience in the society."

19. By then the wife had not filed her affirmation in support of the ancillary relief, hence the husband's reference to the wife's complaints must be those contained in the petition. This is an indication that by early February 2003 the husband had not accepted the allegations that were being made against him.

20. Bearing in mind the husband's denial of his adultery and unreasonable behaviour and his claim that the parties had only begun to live in separate bedrooms from 2001 onwards and not 1998 as alleged by the wife, clearly he had shown an injustice would occur if the decree is allowed to be obtained. The injustice would also affect his position in the ancillary relief that the wife may obtain subsequent to the divorce.

21. In Rogers v. Rogers, the English Court of Appeal allowed the husband to file an answer after a delay of ten months. The court took into account the husband's denial of unreasonable conduct that was made against him and also the husband's discovery of the wife's adultery shortly before his application for extension of time. While the latter issue is not present in this appeal, we are satisfied that the husband should be allowed to defend the allegations made against him.

Conclusion

22. We will allow the appeal and allow the husband to file an answer out of time. The answer is to be filed and served within seven days.

Costs

23. As the husband was asking for indulgence in the court below he should be ordered to pay the costs of the application in the District Court. The judge's order on costs is not disturbed. We will make no order as to costs for the appeal and the costs for the application for leave to appeal.

24. We will disallow 90% of the costs and charges relating to the preparation of the wife's bundle of appeal both as between party and party basis and between solicitor and client basis.