LCFM formerly known as LCFM v. LSF

FCJA 2346 / 2018

[2023] HKFC 121

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 2346 OF 2018

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BETWEEN

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D E C I S I O N
(Variation of Order and Discharge of Undertakings)

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Introduction

1.  This is the trial of a Summons taken out by the 2^nd Applicant Husband (“H”) dated 25/9/2020 which was amended on 22/4/2021 (“H’s Amended Summons”) seeking various reliefs over children’s matter and financial arrangement between the parties.

2.  Parties through their legal teams managed to resolve the bulk of H’s Amended Summons leaving paragraphs 2, 3 and 9 therein which require the Court’s determination.

3.  I set out below the 3 paragraphs of H’s Amended Summons which required determination at this trial :-

“2. The 2^nd Applicant be released from the undertaking to the Court and to the 1^st Applicant given in paragraph H of the Order of His Honour Judge G. Own dated 18 June 2019 whereby he gave to the 1^st Applicant free access to House xx, DD xxx, Lot No. xxx, xxxxxx, xxx, New Territories, Hong Kong and the facilities therein during their joint lives.

3. The 2^nd Applicant be released from his undertaking to the Court and to the 1^st Applicant given in paragraph C of the Order of His Honour Judge G. Own dated 18 June 2019 on the basis that he provide a replacement undertaking as follows :

‘AND UPON the 2^nd Applicant’s undertaking to the Court and to the 1^st Applicant that he shall maintain and pau for one supplementary credit card under his name to be used by the 1^st Applicant solely for any medical expenses for herself and the Children until LYLK (xxx) reaches the age of 18.”

9. Order 1 of the Order of His Honour Judge G. Own dated 18 June    2019 be varied on the basis that the periodical payments payable by the 2^nd Applicant to the 1^st Applicant be suspended from the date of the order       for a period of 118 days (a total reduction of HK$465,534).”

Background

4.  Parties married with each other in Hong Kong in 2007.

5.  There are 2 children of the family born in 2008 and 2011, who are respectively at the 14 and 11 at the time of this trial.

6.  Sadly, parties’ marital relationship broke down and parties agreed to end their relationship.  A joint application for divorce was filed in May 2018.

7.  Decree Nisi (which was amended) was granted on 18/1/2019[1]. On the same day, joint custody of the 2 children was granted to the 1^st Applicant Wife (“W”) and the 2^nd Applicant Husband (“H”); care and control was granted to W with reasonable access to H[2].  Further, the question of ancillary reliefs was adjourned to 13/6/2019 for further disposal (“AR call-over hearing”).

8.  By a Consent Summons dated 17/6/2019 which was filed on 18/6/2019 and endorsed by this Court the same day as a Consent Order (“18/6/2019 Consent Order[3]”), parties reached settlement on the amount of spousal maintenance of HK$120,000 a month and the children’s maintenance at HK$10,000 a month (that is, HK$5,000 a month per child).   Both the spousal maintenance and the children’s maintenance are expressed to last until the joint lives of the parties.   

9.  Same as in other matrimonial cases, the 18/6/2019 Consent Order contained various undertaking(s), acknowledgement(s) and agreement(s) preceding the actual terms of the Order on spousal and the children’s maintenance.

10.  The Recitals in respect of which paragraphs 2 and 3 of H’s Amended Summons referred to and Paragraph 1 of the 18/6/2019 Consent Order in respect of which paragraph 9 of H’s Amended Summons referred to are reproduced hereunder :-

“Recital (C) : AND UPON the 2^nd Applicant’s undertaking to the Court and to the 1^st Applicant that he shall maintain and pay for two supplementary credit cards (one being a Centurion Card from American Express Visa Card No.3763-xxxxxx-xxx66 and the other being Citibank Visa Card No.4028-xxxx-xxxx-xx88) under the name of the 1^st Applicant for her medical expenses and the expenses of the children of the family during the joint lives of the 1^st and 2^nd Applicants.

Recital (H) : AND UPON the 2^nd Applicant’s undertaking to the Court and to the 1^st Applicant that he shall give the 1^st Applicant free access of the property known as House xx, DD xxx, Lot No. xxx, xxxxxx, xxx, New Territories, Hong Kong and the facilities situate therein during their joint lives.

Order (1) : The 2^nd Applicant do pay to the 1^st Applicant periodical payments in the sum of HK$120,000 per month, to be increased by 2% every 12 months, commencing on the making of the Decree Absolute and payable thereafter on or before the 1^st day of each month by way of automatic payment to the 1^st Applicant’s bank account no.015- 24xxxxxx41 maintained with The Bank of East Asia Limited during joint lives of the parties or until the re-marriage of the 1^st Applicant, whichever is the shorter.”

The Parties’ Evidence and Written Submissions

11.  H filed his 1^st, 2^nd and 3^rd Affirmations and W filed her 1^st and 2^nd Affirmations.

12.  Both parties also testified in Court and subject to cross examination.

13.  It may be worthwhile at this juncture for me to say a few words on what had happened after parties’ respective Written Closing Submissions were exchanged. As directed, parties’ Written Closing Submissions were exchanged on 15/3/2022.

14.  H’s Counsel Mr Peter Barnes and Mr Sebastian Leung, in their 55 pages (146 paragraphs) Written Closing Submissions attached with a list containing 8 additional authorities. This was done without first informing this Court or W’s legal team in advance. W’s legal teams raised opposition on such course who then sought leave for producing authorities in their “yet-to-file” Written Closing Submissions as by that time they were still awaiting the transcripts of the hearings from this Court.

15.  On 27/5/2022, leave was granted to W’s Counsel Mr Eugene Yim to file further submissions in reply (limited to the additional authorities cited by H’s Counsel) within 21 days, that is, on or before 17/6/2022.

The Law

16.  Given H’s Amended Summons covers undertaking(s) given by H and embodied in the 18/6/2019 Consent Order, it is pertinent for me to set out the established legal principles for considering applications relating to undertaking(s) given in the course of litigation, including family court cases.

17.  It is trite law that the courts have no jurisdiction to vary an undertaking. Release from performing an undertaking given could only be achieved by obtaining a discharge of the undertaking in question. The courts could, in appropriate cases and only if it was just and fair to do so, accept an undertaking in replacement of the original undertaking which had been or was going to be discharged.

18.  In Birch v Birch [2017] 1 WLR 2950, the UK Supreme Court held :-

“An undertaking is a solemn promise which a litigant volunteers to the court. A court has no power to impose any variation of the terms of a voluntary promise. A litigant who wishes to cease to be bound by her (or his) undertaking should apply for ‘release’ from it (or ‘discharge’ of it); and often she will accompany her application for release with an offer of a further undertaking in different terms. The court may decide to accept the further undertaking and, in the light of it, to grant the application for release. Equally the court may indicate that it will grant the application for release only on condition that she is willing to give a further undertaking or one ion terms different from those of a further undertaking currently on offer. In either event the court’s power is only to grant or refuse the application for release; and, although exercise of its power may result in something which looks like a variation of an undertaking, it is the product of a different process of reasoning.”

19.  In the unreported case of L v C, FCMC No.5952/2012, Deputy Judge Grace Chan (as she then was), succinctly summarized the principles on release/discharge of undertaking(s) as follows :-

“(1) An undertaking can be discharged, but not varied. This is because the litigant is not ordered to give these undertaking; he chooses to give them.

(2) The court has jurisdiction to discharge an undertaking given to the court at any stage even if it was given in an order made by consent;

(3) In general, a party who has given an undertaking to the court may seek to uplift or release himself from an undertaking in any of the following situations :

(a) when there has been a material change of circumstances since the undertakings were given which are not foreseeable at the time and which make compliance not feasible;

(b) when the subject matter to which the undertakings relate no longer exists which renders compliance impossible;

(c) the party to whom the undertaking was given releases the undertaker from complying with the undertaking;

(d) whether the undertaking was obtained through fraud, misrepresentation or mistake.

(4) Whether an undertaking given to the court should be discharged is a matter of judicial discretion to be exercised if it is “just” to do so: Kensington Housing Trust (supra) at 613;

(5) However, in case where an undertaking to the court is given in lieu of a final injunction, that it is “just” to discharge the undertaking is not sufficient, “material change of circumstances” must be shown: Mid Suffolk District Council (supra) at §§52-56” (emphasis added).”

20.  In the case of Wang Linping v Huang Keqin [2020] HKCFI 256), Hon Queenie Au-yeung J cited with approval the principles in L v C (supra). It was further said by her Ladyship that discharge of an undertaking is a draconian measure and is a judicial discretion[4].

H’s case of application

21.  H in his 1^st Affirmation[5] filed in support of his Amended Summons, and also during his oral testimonies in Court, went through the chain of events that had happened starting from the time when W presented him with a handwritten note[6] in May 2018 with the terms demanded from him on divorce leading up to the time of signing the 3^rd Consent Summons in June 2019 upon which the 18/6/2019 Consent Order was granted.

22.  It was common ground that there were 2 other separate Consent Summonses dated 11/5/2018[7] and 10/7/2018[8], both of which were duly signed by the parties and filed with this Court. H was acting in person when he signed all the 3 Consent Summonses. He also signed and acknowledged in each of the 3 Consent Summonses of knowing his rights to seek independent legal advice on the contents of what he was signing.

23.  It was also common ground that at the AR call-over hearing on 13/6/2019[9], H instructed Messrs. Pansy Leung, Tang & Chua, Solicitors, to represent him. As can be seen from the transcripts of the AR call-over hearing[10], I spelt out the reasons for not approving the first 2 Consent Summonses. At the end of this hearing, leave was granted for the parties to withdraw the first 2 Consent Summonses and a further hearing was scheduled for 19/6/2019 (which was about a week later). What then happened was that it came up with the 3^rd Consent Summons dated 17/6/2019 being filed.

24.  In respect of the claim for release from the undertaking in Recital (H), H referred to his agreement with W that some form of “nesting arrangement” would be set in place to care for the 2 children. Given that H need to travel out of Hong Kong for work from time to time, whenever he was not in Hong Kong, W could have access to his house to take care of the 2 children (including overnight if necessary). Whenever he was in Hong Kong, W would have to live in her own accommodation. H would take care of the 2 children himself with the assistance of 2 live-in domestic helpers[11].

25.  It was W who misread into the meaning of the term “free access” in Recital (H) and insisted having the right to enter and stay in his house anytime during their joint lives. H was also complaining that W refused to move out from his house. W even occupied the master bedroom and asserted that she was allowed to continue living at his house for the rest of her life[12].

26.  In July 2020, H through his lawyers proposed to W implementation of the “nesting arrangement” in that whilst he was not travelling, there should be a week on week off caring arrangement for the 2 children. However, W through her lawyers rejected and said such proposed 50/50 shared care arrangement would not be beneficial to the 2 children[13].

27.  In respect of the claim for release from and replacement of the undertaking in Recital (C), H said the arrangement of providing 2 credit cards was asked for by W which he had agreed. However, there was also an agreement with W that because he had to provide W with HK$120,000 a month as her maintenance, those credit cards should only be used for emergencies, medical expenses for herself and the children, and for any educational expenses for the children[14]. He said the drafting of the 3^rd Consent Summons was done by W’s then lawyers and were not clear in that the word “educational” had been omitted in the said Consent Summons. He believed that it was likely to be a deliberate omission.

28.  In respect of the claim for suspension of paragraph (1) of the 18/6/2019 Consent Order for 118 days, H referred to W’s spending on renting Hong Kong Parkview which was unauthorized by him and not covered by the agreement that he had with W for the use of those supplementary credit cards. As at the date of H’s 1^st Affirmation, W had spent a sum of HK$440,000 for renting 2 apartments at Hong Kong Parkview at the cost of around HK$120,000 a month which he should not be liable to pay[15]. The proposal to suspend for 118 days of the spousal maintenance of W payable under paragraph (1) of the 18/6/2019 Consent Order would allow him to recover HK$465,534 which represented almost the entire sum of the unauthorized spending by W charged on his Amex Card[16].

W’s case of opposition

29.  W’s case was that the undertaking in Recital (H) was given by H in return for her to give up her rights for full disclosure and discovery of H’s means and assets. This could be seen from Recital (A). It was also in return for her to give up her rights to claim H’s assets. This could be seen from Recital (B) of the 18/6/2019 Consent Order[17].

30.  W said H had on a number of occasions tried to put a limit on her spending of the 2 credit cards that he had offered for her use. H’s then lawyers Messrs. Pansy Leung, Tang & Chua, Solicitors (“PLTC”), had once put down the figure of $100,000 and $50,000 in the draft Consent Summons as the credit card spending limit[18]. Given that there was only $5,000 per month for each child as monthly maintenance, W said it would be unlimited spending on the supplementary credit cards for the expenses of the 2 children during their joint lives[19].

31.  For H’s complaint over her spending on accommodation at Hong Kong Parkview charged upon his Amex Card, W said it was because H had been in blatant breach of Recital (H) by inhibiting her free access to his house and that H had also evicted her and the children on 25/6/2020. Therefore, H should be fully responsible for the costs of such temporary accommodation[20].

32.  All in all, W said it was H who was now seeking unilaterally to be released from performing undertaking(s) which he had provided in return for her to settle the case with him. W maintained that she had compromised her rights and entitlements in return for accepting H’s undertaking(s). By filing the present application, H was trying to reduce his financial obligations to her and the children[21] .

33.  W also reserved all her rights to seek compensation against H for his continuous breach of his undertaking under Recital H causing her to have to incur substantial expenses on alternative temporary accommodation for herself and the children[22].

Submissions on the law

34.  W’s Counsel Mr Eugene Yim at the very beginning of this trial openly made the submission that H’s present application, as per paragraphs 2, 3 and 9 of the Amended Summons, was legally unsound. H was now seeking to unilaterally withdraw on a partial and selective basis from his side of the bargain which had formed part and parcel of the terms of a legally binding agreement entered into by the parties and embodied as the 18/6/2019 Consent Order.

35.  One inherent and insurmountable difficulty noted by Mr Yim was that H was not seeking to set aside a Consent Order in its entirety (emphasis added) on the basis of some vitiating factors. H was seeking only to be released from 2 undertakings whilst asking the Court to continue with the rest of the same Consent Order.

36.  I have spent hours going through the 55-page Written Closing Submissions by H’s Counsel Mr Peter Barnes and Mr Sebastian Leung. Although there was not much dispute on the law as to the court’s powers generally in discharging and/or setting aside undertaking(s), there are submissions made under other areas which does not seem to be of relevance to H’s application per se from any perspective. There are subheadings under :-

- Interpretation: Ordinary and natural meaning of words[23];

- Interpretation of the word “access”[24];

- Privacy Rights[25];

- What “free access” really means[26];

- The Mother’s Understanding[27];

- The Father’s Understanding[28];

- Objective understanding of a “reasonable man”[29];

- Open Threat to Move Back – Privacy Rights, Human Rights, Children’s Rights[30] ;

- The 25 June 2020 incident and the Parkview expenses[31].

37.  Further, Mr. Peter Barnes and Mr Sebastian Leung at paragraph 23 of the Written Closing Submissions sought to set out the “issues” at hand as follows :-

“Re : Recital H

(1) What is the meaning (if any) of the words “free access” and whether such provision retains any purpose ?

(2) Do either of the Mother’s (a) change of mind (if it occurred) and (b) insistence on her right of continued residence in [house no] amount to a material change of circumstances ?

(3) If so, should the Father be released from his undertaking (at Recital H) and this be discharged entirely or with a more particularized replacement undertaking, in which case what that replacement undertaking should be ?

Re : Recital C

(4) Should Recital C be discharged with a replacement undertaking to more properly reflect the true agreement between the parties and avoid unnecessary future conflict ?

Re : Para 9

(5) Was the Mother’s temporary move to Parkview and the charging of the Amex card justified, and if not whether she should be ordered to repay including the option of reimbursement by reduction of ongoing spousal maintenance and if so for what period ?”

Discussion

38.  First and foremost, I must state my views in clear terms over those “issues” framed by H’s Counsel above. With respect, those “issues” so framed could be read into and taken as such only if this was the trial for determination of the terms to be entered into (emphasis added) by the parties for settlement of their respective ancillary reliefs. Apparently, this was not the case here.

39.  On a close study of the wordings of those “issues” so framed, they are premised upon post settlement events that had happened and was then taken up by H as the ground or justification for not complying with the undertakings previously given by him. Not surprisingly, putting forward the application in such a way met with W’s Counsel’s contention upon established principles of contract law for the lack of valuable consideration, that is to say, there was no valuable consideration moving from H to W to support his intended application as per the terms of the Amended Summons. Even if there was, which W denied, it would only be past consideration which would not be accepted by the Court.

40.  It could hardly be denied by H that ancillary reliefs had already been settled globally through the parties’ consensual arrangement and embodied within the 18/6/2019 Consent Order, which was a binding and enforceable order ever since it was granted. As rightly submitted by W’s Counsel which I agree, W accepted the spousal maintenance of HK$120,000 a month for herself and HK$10,000 a month for the 2 children (HK$5,000 a month for each child) in return for not asserting her rights of discovery against H. But for the undertaking(s) given by H, there was every reason for W not to agree to the amount of the spousal maintenance and/or the children’s maintenance and to pursue them to the fullest extent (if so advised). Viewing the contents of the 2019 Consent Order[32] in context and as a whole, the agreed amount of HK$120,000 and HK$10,000 only came in after all those undertaking(s) as per the Recitals were given by H.

41.  Given that both Recitals (C) and (H) contained voluntary undertakings provided by H personally, as part and parcel of the whole consensual arrangement with W, there was no room for H to be able to “set the clock back” now or to re-visit matters of discussion or his subjective understanding at the time when he provided his undertaking(s) in return for (emphasis added) obtaining W’s agreement to the spousal maintenance and children’s maintenance. To allow H to do so, in the absence of W’s consent or any valuable consideration (as W’s Counsel rightly put), would be akin to affording H the chance to re-write the undertaking(s) already given to the prejudice of W, who had vehemently been adhering to the terms of the 2019 Consent Order.

42.  In my decision, H would only succeed in his Amended Summons on paragraphs 2 and 3 therein, respectively related to Recitals (H) and (C) of the 18/6/2019 Consent Order, if he was able to prove on balance of probabilities that one or more of the situations set out in the case of L v C[33], supra, had arisen.

43.  Before moving on to decide whether those situations had been proved by H in his evidence, I would like to express my views on H’s Counsels’ written submissions made under various subheadings[34] which I outlined above.

44.  It was in no way clear as to why the Court was required to do the exercise of interpretation of words or phrases in the undertakings as if it was so doing in the case of statutory interpretation. H’s Counsel had even went as far as suggesting the Court to “find” parties’ subjective understanding in their minds of the words and phrases which appeared in the undertakings by comparing with the objective understanding of the, so called, “reasonable man”. The submission of “Privacy Rights” was also far-fetching and unjustifiable in application of this nature.

45.  With respect, how could H who had agreed to provide “free access” (without any conditions or restrictions attached) be now allowed to say, “Oh, I did not mean it” or that the “free access” was meant to be a qualified one subject to certain circumstances which were not spelt out anywhere explicitly, or even implicitly, in the undertaking(s) ?

46.  All in all, I do not accept those subheadings set out by H’s Counsel required any consideration by me when determining H’s present application.

The 3 Consent Summonses

47.  H’s undertakings given under Recitals (C) and (H) in the 3^rd Consent Summons dated 17/6/2019 which ended up with the 18/6/2019 Consent Order, also appeared in the 1^st and 2^nd Consent Summonses although under different recital alphabets.

48.  H argued that it was not foreseeable that W would, purportedly acted in reliance upon Recital (H), enter his house and stayed there indefinitely at any time that she wished. This was a material change of circumstances which was not foreseeable by H when he gave the undertaking in Recital (H) of “free access” to W. The situation had become intolerable in November 2019[35]. W’s refusal to move out from his house and her stay in there was not what Recital (H) of “free access” meant to be operated. Moreover, their marital relationship had already ended.

49.  H also submitted that W did not have any legal or beneficial interest in his house which entitled her to stay and live in there[36]. The lump sum of HK$33 million already paid to W was for her to purchase her own accommodation which she did not do so despite that it was one of the agreed terms with W.

50.  There are 3 separate occasions spanning over a period of 13 months where H had signed 3 separate Consent Summonses dated 18/5/2018[37], the 2^nd Consent Summons dated 10/7/2018[38] and the 3^rd Consent Summons dated 17/6/2019[39] when he undertook thrice, inter alia, the following :-

(a) To provide W with free access to his house and the facilities situated therein during their joint lives (emphasis added);

and

(b) To provide, maintain and pay for 2 supplementary cards (one being a Centurion Card with American Express and the other one being Citibank Visa Card) under his name for W’s medical expenses and the expenses of the 2 children of the family during their joint lives (emphasis added).

51.  In all the 3 Consent Summonses, H also agreed, inter alia, the following monetary payments :-

(a) To pay a lump sum of HK$ 33 million to W;

(b) To pay spousal maintenance of HK$120,000 a month to W; and

(c) To pay maintenance for the 2 children at HK$5,000 per child per month, totaling HK$10,000.

52.  Further, in each of the 3 Consent Summonses, H confirmed in writing thrice that W’s lawyers had explained to him his right to seek independent legal advice on the contents and the signing of the Consent Summonses.

Some underlying facts

53.  To be fair to H, he had once instructed his then lawyers PLTC to represent him on 26/3/2019.

54.  On 5/6/2019, PLTC wrote to W’s lawyers attached with a draft Consents Summons (“PLTC’s draft”)[40]. Although PLTC’s draft also contained provisions on spousal maintenance at HK$120,000 a month and the 2 children’s maintenance at HK$10,000 a month (that is, HK$5,000 a month per child), the duration of these maintenance was drafted in accordance with the “maximum term” afforded under the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”). The spousal maintenance was drafted to last until the joint lives of the parties or remarriage of W, whichever is the shorter[41]. The children’s maintenance was drafted to last until the children respectively attains the age of 18 or ceases full time education, whichever is the later[42]. The PLTC’s draft Consent Summons also referred to W having already received the lump sum of HK$33 million from H[43].

55.  There was no undertaking by H to give “free access” to W to H’s house in PLTC’s draft. Instead and to the contrary, W was required to move out from H’s house on or before 31/7/2019. There was a paragraph under Recital A in the PLTC’s draft which read :-

“A. UPON the 1^st Applicant’s undertaking to the Court and to the 2^nd Applicant that she shall move out from the matrimonial home known as [address of house] on or before 31^st July 2019, and inform the 2^nd Applicant in writing of the address and the telephone number of her then residence together with the 2 children of the family, and keep the 2^nd Applicant informed of the change(s) thereafter, if any, forthwith.”

56.  PLTC’s draft was not accepted by W and was not signed. It turned out that H chose to act in person in place of PLTC[44] on 17/6/2019. H also signed the 3^rd Consent Summons on the same date of 17/6/2019, which was filed on 18/6/2019[45].

57.  H in his supporting Affirmation tried to give an explanation that he signed the 1^st Consent Summonses in May 2018 without requesting any amendments because W had told him that she would not agree to any changes[46]. He was again requested by W’s lawyers to sign the 2^nd Consent Summons in July 2018. He recalled some of the wordings in the 2^nd Consent Summons had been moved around but it looked pretty much the same as the 1^st Consent Summons that he had already signed. He then signed the 2^nd Consent Summons without seeking any changes.

58.  For choosing to act in person in place of PLTC, H’s explanation was that after the AR call-over hearing on 13/6/2019 (when he was represented by Mr. Chua of PLTC), he was told by W that if he wanted to be able to keep a good relationship with the children, he should not instruct Mr. Chua again. H should not seek any further changes to the Consent Summons[47]. It seems that H did so accordingly.

59.  As a result of what W had told him, H decided to act in person and, on the same day of 17/6/2019, he signed the 3^rd Consent Summons drafted by W’s lawyers. H agreed that W’s lawyers had read the terms of the 3^rd Consent Summons to him but he did not really pick up on what had been changed[48].

Was H’s explanation on the signing of the Consent Summonses helpful to his application ?

60.  Giving full consideration to H’s evidence, he was not seeking to set aside the 2019 Consent Order as a whole (emphasis added) on the ground that there was one or more of those vitiating factors such as fraud, misrepresentation and/or mistake at the time of signing the 3^rd Consent Summons. He was seeking to be relieved only from 2 of his undertakings that he had given and to seek a set-off of expenses charged upon his Amex Card by W which were out of the scope of authorized expenses.

61.  W’s Counsel Mr. Eugene Yim spotted such a situation and expressed his views openly in his Written Closing Submissions that this was a classic case of “One having his cake and eating it too.[49].

62.  It was clear from H’s evidence that he did not exercise care and caution on the contents of the 1^st and 2^nd Consent Summons despite that he had the time and opportunity to go through the details therein or to seek independent legal advice. He had been reminded of his right to do so in both the 1^st and 2^nd Consent Summonses but he chose not to do so.

63.  Upon obtaining legal advice and assistance from his then lawyers PLTC later, PLTC produced a draft Consent Summons on his behalf for signing by W. In this draft, H did not provide any “free access” to W but instead required W to move out from his house by 31/7/2019. However, H did not insist or further pursue upon it when it was not signed by W. It just happened that H decided to sign the 3^rd Consent Summons drafted by W’s lawyers. He had, for the 3^rd time, been informed and acknowledged in writing that he had the right to seek independent legal advice on the contents that he was signing.

64.  Under such circumstances, I failed to see how H could be allowed to relieve from performing his undertaking in Recital (H) to provide W “free access” to W and/or to release from performing his undertaking in Recital (C) and replacing it with a fresh undertaking so prayed for in his Amended Summons.

65.  Even if it could be proved that there was spending by W which fall outside the scope of authorized expenses stipulated in Recital (C), it would not be a sufficient ground for H to seek “replacement” of the Amex Centurion Card and the Citibank Credit Card.

The 4 situations set out in the case of L v C, supra

66.  I will first deal with Recital (H), the undertaking given to W as to “free access” to H’s house and the facilities therein, followed by Recital (C), the undertaking by H to provide W with his supplementary Amex Centurion Card and Citibank Credit Card, both undertakings were said to last during the joint lives of the parties.

Any material change of circumstances which are not foreseeable ?

67.  I do not accept H’s case that there was “material change of circumstances” when W chose to enter and stay in his house and refused to move out. The PLTC’s draft with the undertaking of W to move out was never signed. At all material times during the marriage and even during their separation, W was enjoying “free access” to H’s house and the facilities therein. Recital (H) of the 18/6/2019 Consent Order was, in my view, reinforcement of her long existing free access and not something new or otherwise to support any finding of “material change of circumstances”. The most or the best which H could possibly argue, of which there was no such finding, was that there was a change of mind of W. This could not be taken as any “material change of circumstances” submitted by H.

68.  Any spending by W charged upon H’s supplementary Amex Centurion Card and Citibank Credit Card, even if proved to be unauthorized, could not be misconstrued as “material change of circumstances”.

Whether the subject matter to which the undertaking relates no longer exists rendering compliance impossible?

69.  For the issue of “free access”, the subject matter was the former matrimonial home, that is, H’s house. The clear evidence is that the house is still there.

70.  For the issue of “supplementary cards”, unless H chose to cancel the supplementary Amex Centurion Card and Citibank Credit Card with good cause and reasons, the subject matter, namely the said cards, still exist and compliance with the undertaking in Recital (C) would not be impossible.

Whether the party to whom the undertaking was given releases the undertaker from compliance with the undertaking?

71.  This situation clearly does not exist. W always insists on H performing his undertakings under Recitals (H) and (C). It was H who refused to do so which called for this lengthy trial.

Whether the undertakings were obtained through fraud, misrepresentation or mistake ?

72.  As said earlier, H was not presenting his case of any fraud, misrepresentation or mistake which caused him to provide the undertakings. Putting H’s case to the highest, he might be misunderstood or being indifferent about providing the undertakings under Recitals (H) and (C). There was no legal basis for H to renege or retract from his voluntary and unambiguous undertakings upon any “second thought”.

73.  In W’s Counsel’s Written Closing Submissions, part of H’s evidence during cross-examination on his signing of the Consent Summonses was recited. Suffice is to say that H agreed that he had read and understood the terms of the 3^rd Consent Summons before putting his signature on it. He also agreed under cross examination, and further confirmed to this Court’s question by answering “yes, yes”, that it was his informed decision (emphasis added) to enter into the 3^rd Consent Summons.

74.  Further, when being cross examined by W’s Counsel, H also agreed that he decided to sign the Consent Summonses because he wanted to make things simple and have a quick and amicable settlement. W’s Counsel also referred H to his words of being “pressurized” by W as to what he actually meant. H then gave the unequivocal answer that he said he was being “pressurized” because W had told him that she would not change anything. Upon the follow-up question from me, H confirmed that that was the only pressure (emphasis added) he was subjected to when he signed the 3^rd Consent Summons.

75.  With H’s academic background as a university graduate in mechanical engineering in Scotland with no difficulty of understanding English and also a businessman by occupation for years being fully considered, I am not convinced that there was any “pressure” for him to sign the 3^rd Consent Summons, and indeed also the 1^st and 2^nd Consent Summonses. H’s viva-voce evidence under oath also does not stand up for proof that he was being “pressurized” to provide the undertakings as per Recitals (H) and (C) in the 3^rd Consent Summons.

76.  I decided that there was no fraud, misrepresentation or mistake to support H’s case of application under paragraphs 2 and 3 of his Amended Summons.

Paragraph 9 of H’s Amended Summons[50]

77.  This part of H’s application was devoid of any merits. There was no legal basis for H to seek suspension of an Order for spousal maintenance granted under Section 4(1)(a) of the MPPO for any period of time, say, 118 days in order to off-set his liability to pay spousal maintenance or to be reimbursed for any alleged over spending by W, even though it could be proved by evidence.

78.  To seek an order for payment of money spent (even proved to be without authorization) is different from seeking an order for suspension of a consensual spousal maintenance order granted under Section 4 (1)(a) of the MPPO.

79.  The court’s jurisdiction to suspend operation of a spousal maintenance order under Section 4(1)(a) of the MPPO could only be exercised upon determination of a judgment summons. Even in such a situation, the power of suspension only operates to relieve the financial burden of the paying party and not for the benefit of the receiving party.

Other Ancillary Matters

80.  The 18/6/2019 Consent Order, insofar as the duration of W’s spousal maintenance and the children’s maintenance are concerned, both of them have exceeded the “maximum term” stipulated under the MPPO in that they were expressed to last for the joint lives of the parties (emphasis added).

81.  In my decision, such over “maximum term” maintenance orders would not be rendered void or ineffective. It would only affect the beneficiaries/receiving party not being able to enforce or pursue payment in respect of the period over the “maximum term” in the enforcement proceedings.

82.  The period of duration of spousal maintenance and children’s maintenance orders are governed by the “maximum term” under the MPPO. The notion of “maximum term” does not operate to cover undertakings the duration of which was entirely a matter of agreement of the parties, or even open-ended, subject only to the 4 situations outlined in the case of L v C, supra.

83.  That said, my decision on H’s application in respect of his undertakings given under Recitals (H) and (C) would not be affected by my views on the over “maximum term” maintenance orders in the 18/6/2019 Consent Order.

Conclusion

84.  For all the above reasons, I decided that F must fail in paragraphs 2, 3 and 9 of his Amended Summons.

85.  All of them must stand dismissed.

Costs

86.  W’s Counsel Mr. Yim invited me to consider costs on indemnity basis for the reason that H was plainly running an entirely unreasonable case. H’s litigation conduct should be marked with disapproval from the Court.

87.  I have not been assisted by W’s Counsel on any case law for such application and also H’s Counsel had not been given a chance of reply on indemnity costs sought by W.

88.  Given that I have decided against H in all his application for the reasons that I have set out in this Decision, it would be fair and reasonable for H to bear the costs of and occasioned by W, including all costs reserved, to be taxed if not agreed.

89.  As to the basis of costs, in the absence of further submissions on costs from both parties, I decided that it should be on party and party basis.

90.  I also grant Certificate for Counsel.

91.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.

92.  Needless to say, the costs order nisi does not prejudice the parties’ rights to seek variation of costs (only if so advised), whether as to the basis or the liability of it. However, parties should be fully advised and reminded in advance of possible further costs implication for any costs variation application.

Orders

93.  I now grant the following Orders :-

(a) Paragraphs 2, 3 and 9 of H’s Amended Summons be dismissed;

(b) H do pay to W the costs of and occasioned by his application, including all costs reserved, to be taxed if not agreed on party and party basis;

(c) There be Certificate for Counsel.

94.  I repeat what I said in paragraphs 91 and 92 above.

95.  Last but not least, I wish to thank both Counsel and the legal teams for their valuable assistance to this Court.