WJ v. LKY

FCMC 5880 / 2018

[2020] HKFC 30

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5880 OF 2018

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J U D G M E N T
(Maintenance Pending Suit/Interim Maintenance)

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Introduction

1.  This is an application by a Petitioner wife for maintenance pending suit pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the two children of the family, a boy M who was born on the XX February 2012 (aged nearly 7 years) and a girl A, who was born on the XX April 2017 (aged 2 years and 9 months), under section 5 of the same ordinance.

2.  By the time that this matter came on for hearing the wife had reduced her claim from HK$830,921.26 per month, as set out in her summons dated the 26 November 2018, to HK$700,000 per month. It is her primary position that this sum represents the very high standard of living enjoyed by the parties during the course of the marriage and that as far as possible this is the status quo that should be maintained pending final resolution of all outstanding matters.

3.  The husband for his part argues that the wife’s summons should be dismissed in its entirety. He points to the previous agreement reached, as set out in the court order dated the 4 April 2019, and says that these agreements should remain in force. Each party’s respective positions on this are summarized in the court Memo dated the 6 January 2020 which, for ease of reference I shall repeat in full as follows:

At the Maintenance Pending Suit/Interim Maintenance hearing on the 18 October 2019 the Respondent husband’s primary position was that the wife’s application was misconceived given that the sale of the M shares was imminent, which meant in turn that he would be able to comply with the undertaking given by him on the 4 April 2019 in the following terms:

AND UPON the Respondent Undertaking to the Petitioner and the Honourable Court that the Respondent’s admitted beneficial interest in the net proceeds of sale of M Securities Limited shall be spilt 50/50 equally between the Petitioner and the Respondent, and shall be paid to the respective parties within 7 days of the same being received by J Holdings Limited, all such sums shall be taken into account at final ancillary relief. The parties shall execute all necessary documents, instruments and resolutions to give effect to the same.

The husband asked that the order of the 4 April do continue to stand and that the wife’s application be dismissed. The order also included the parties’ agreement that their Yacht should be put on the market for sale with effect from the 1 December 2019 and that the net proceeds of sale should also be split 50:50. Both of these sums were to be taken into account at final ancillary relief and upon compliance with both the undertaking and the agreement, the injunction order of the 15 February 2019 was to be discharged.

The injunction order stated as follows:

2. Pending the resolution of these proceedings and without an Order of the Court, the Respondent must not dissipate or dispose of, whether by himself or his agents, his beneficial interest in the net proceeds of M Securities Limited or part thereof, including any assets acquired using any such proceeds or part thereof and that he arrange all proceeds of sale be paid into Court pending resolution of these proceedings as soon as the said net proceeds are available to him or further Order of the Court.

Consequently, the husband maintained that the wife’s short term financial situation and that of the children would most likely be secured by both the sale of the shares and the sale of the Yacht.

The wife for her part submitted that in her view the sale of the M shares was not likely, she asked to be released from her agreement to sell the Yacht and she further sought an order of HK$700,000 per month in interim support for herself and the children.

The court is currently in the process of writing up the judgment but notes that no funds appear to have been paid into court nor has the sale of the shares been confirmed. In such circumstances can the parties please clarify the up to date position and in particular

a) Whether the M shares have been sold and if so whether the husband has complied with the order of the 15 February 2019?

b) If not what is the current situation with respect to the sale of the shares? In the alternative, has the order of the 4 April 2019 been complied with?

Please respond to the court within the next 3 days so that the judgment may be written in a reasonably timely fashion.        

4.  On the 9 January 2020 the court received a response from the husband’s solicitors. They confirmed that the sale of the shares had been completed, albeit after some delay and that the sum of HK$2.068 million (approximately) had now been remitted into the wife’s account and that she was due to receive those funds shortly. In answer to the specific queries from the court they responded as follows:

To answer the learned Judge’s requisitions (a) and (b), we confirm that our client has complied with the Order dated 15 February 2019 which was varied by the Order dated 4 April 2019 pursuant to his undertaking as recorded in the third recital therein. Therefore, we respectfully submit that pursuant to paragraph 2 of the Order dated 4 April 2019, the Injunction Order dated 15 February 2019 against our client shall stand discharged and as a consequence, we respectfully ask this Honourable Court to release our client from his undertaking given under the third recital of the Order dated 4 April 2019.

The solicitors added that the husband was not in a position to advise the court on the progress of the sale of the Yacht, if any.

5.  On the 10 January 2020 the court received a further letter from the wife’s solicitors in which they confirmed, inter alia, that their client had now received the funds referred to above.                    

6.  The court is asked to now consider the wife’s application in light of these recent updates, which were anticipated at the time of the hearing. In addition, it should be noted that the husband also advanced an alternative position through his counsel Ms Rattigan, namely that any maintenance pending suit/interim maintenance ordered must be at a realistic level and that in any event the wife still had access to some funds and that as a result she should be able to meet the family expenses in the short to medium term.         

The main issues

7.  Consequently the main issues to be determined at this juncture are a) should the wife’s summons of the 26 November 2018 be dismissed in its entirety? b) If not, how much should the husband pay to the wife for her interim provision and that of the two children of the family?

Background 

8.  By both parties accounts they originally met in the United Kingdom in around 2000. The wife, who is Hong Kong Chinese, was studying a course related to the dramatic arts and the husband, who is Malaysian Chinese, was also initially enrolled at a university there. The parties then spent some time in both Beijing and Kualar Lumpur where they were engaged in various business ventures, some of which were initially funded or related in some way to the husband’s family. The husband comes from a very well known and wealthy family in Malaysia. In 2003 the parties moved to Hong Kong in circumstances which are somewhat disputed, but in any event they subsequently married on the XX November 2003 and began to live in the territory on a permanent basis. Initially it seems that they lived quite modestly and the wife set up her own jewellery business and the husband was involved in various investment and business ventures. It is the wife’s case that their financial circumstances changed a few years later when, in 2007 the husband inherited some money from his Grandfather. The husband’s account is slightly different, but in any event it is not disputed that the husband eventually invested in a securities brokerage firm based in Hong Kong, together with other members of his family, including his mother and sister, known as M Securities Limited (M). It is the shares from M that are referred to in the court proceedings to date (see in particular paragraph 3 above). The parties also purchased a village house in Clear Water Bay, which they subsequently rented out until it was sold in 2012.

9.  In the same year the parties had their first child M, who was born on the XX February 2012, and the wife became a full time mother and housewife. They had a further child, a daughter A, who was born on the XX April 2017. Shortly thereafter the parties separated and in February 2018 the husband moved out of the former matrimonial home amid allegations that he had formed a relationship with someone else.

10.  From a financial and business perspective the husband did well in those early years and in 2012 he and his family further invested inter alia in a company known as D, which is a company which operates casino’s and other leisure and entertainment businesses including hotels in the Asia Pacific region and worldwide. The husband was, until recently, the Managing Director and Chief Executive Officer of D. In 2013 D was listed on the Australian stock exchange. The husband explains the position from his perspective in his third affidavit dated the 22 February 2019 as follows:

48. During 2013 to 2014, I had conversations with the Petitioner that M (the elder son) brought a lot of luck to our family. On 27 December 2013, we purchased a property on A Drive in Discovery Bay (the “A Property”) and I paid for the down payment. I bought the yacht and the Ferrari car at the peak of my success. We were able to do so largely because the majority of monthly expenses were funded by D. Given the present business conditions of D which I shall explain in more detail below, this is no longer the case. I have to sell the Ferrari and I have urged the Petitioner to sell the yacht as she proposed back in January 2018.The Petitioner rarely used the Yacht until our separation. As aforesaid, I have also been told that the Petitioner has rented the Yacht out. In addition, I wish to sell the A Property co-owned by the Petitioner and I. Much of my and the family expenditure has been funded or reimbursed by D.

…

50. The year 2017 marked the start of an unpleasant downturn in my business. In mid-2017, a Thai partner at D breached a sale and purchase agreement which led to various proceedings in late 2015.  Both the Petitioner and I realised that our standard of living was unsustainable.  We had a face to face discussion about the standard of living and agreed we should downsize the Matrimonial Home in Deep Water Bay (which we rented in November 2013 when our cash position was healthy) as it is a significant expense.  We could still live fairly comfortably by moving to a property at lower rent. The Petitioner and I went to view some properties before the separation. I later put forward the same request to the Petitioner through my former solicitors and invited her to consider renting a more affordable accommodation in the 2nd letter by TDW to Withers dated 9 October 2018. Please refer to pages 9 to 10 of “LKY3-1” for the copy of this letter.  Regrettably, the Petitioner steadfastly rejected my proposal and put the family in financial predicament.

51. As a consequence of the divorce proceedings initiated by the Petitioner in Hong Kong, I started to struggle with depression and insomnia. I have taken a three-month sabbatical from D since December 2018. A copy of a news report about my sabbatical from D and my health issues is produced and shown to me marked as exhibit “LKY3- 6”.

52. The standard of living achieved by my efforts with D 4 or 5 years ago cannot be maintained given the considerable reduction of my income. The Petitioner must realise significant adjustment to her expenditure is required in addition to the sale of various assets to fund our living and to retain a good and sustainable standard of living.

It is of note that the husband and some of his other family members held the shares in D directly and through a variety of other corporate structures.

11.  On the 19 March 2019, the husband’s position at D was terminated. Consequently, he no longer receives an income from D nor any of the other financial benefits that originally derived from his position with the company. The husband’s stance is that this happened because of the wife’s very aggressive and litigious approach in these proceedings. This in turn is robustly denied by the wife. In any event it is clear that D has been making massive losses (AUD124.5 million in the 2018 financial year alone). In his 4^th affidavit dated 22 March 2019 the husband elaborates on this as follows:

 …The Petitioner unilaterally withdrew various sums totaling HK$12 million approximately from out HSBC Joint account in January 2018 and she only returned a sum of USD 400,000 to the account for servicing the mortgage payments on 7 February 2018). The Petitioner has withdrawn a net sum of HK$8,817,258 for her exclusive use, to which I have no access. The said net sum does not include the subsequent withdrawals made by the Petitioner. There was a pattern that whenever my salary and expenses reimbursements were deposited into the HSBC Joint Account, the Petitioner would withdraw them immediately or the following day or so.

21. As such, I have been deficient in cash to pay for the security interest in the sum of US$477,042 due on 5 November 2018 under the OCP Loan (as referred to in paragraph 66 of my 3rd Affidavit) and OCP requires me to service the loan. All along, the Security Interests were paid quarterly basis from our HSBC Joint Account and the principal sums were paid bi-annually from the same HSBC Joint account. As a result of the said default, the trustee, MPT Limited (the “Trustee”), appointed a receiver to enforce its rights under the Specific Security Deed dated 5 May 2017 on 1 March 2017. The receiver is entitled to sell all my interests in D at a discount and I am prone to be sued as a guarantor for any shortfall after the sale. There is now produced and shown to me marked “LKY4-3” a copy of the letter from OCP to TAI Limited dated 16 January 2019, without prejudice letter from the Trustee dated 18 January 2019, the letter from the receiver, VP of V Advisory, dated 1 March 2019 and Deed of Appointment dated 1 March 2019.

...

23. I am using my best endeavours to avoid any liquidation of my interests in D. As mentioned at paragraph 74 of my 3rd Aff, D’s share prices have plummeted and if the receiver sells my interests in D at a low price, I have no other liquid assets to pay for the shortfall. This is a financial plight which the Petitioner has put the family into and which I am finding ways to rescue including looking for a new financier and working towards a redemption. The total outstanding sum as of 29 March 2019 will be US$30,246,694. There is now produced and shown to me marked “LKY-4-5” a copy of an email from BH of OCP to me dated 15 March 2019 together with a spreadsheet of the outstanding loan calculation.

12.  The wife for her part says that this is all a hoax, that the husband deliberately orchestrated his termination from D and that in any event he has access to other funds including a ¼ share of monies arising from a settlement of long term litigation in Malaysia relating to his Grandfather’s estate. The suggestion is that the husband may receive in the region of HK$250 million. There will of course be arguments in due course concerning whether or not this sum, is non matrimonial in nature and the extent to which the court may rely on it in ancillary relief proceedings in any event. The wife also states that:

6. I do not accept that the Respondent does not currently have any income (and is concerned about his financial circumstances) as he claims. As mentioned previously in these proceedings, the Respondent has other means of income from various businesses and is used to the practice of holding various assets (including shares and bank accounts) under his various nominees. The Respondent holds a US citizenship so he has always used nominee arrangement since around 2003 for his nominees to hold assets on his behalf in order to avoid US tax (which he never paid). The Respondent has been rearranging his assets using such nominee arrangements so as to exclude these assets from the matrimonial pot in order to defeat my claims for ancillary relief against him. While the Respondent only disclosed that he holds 3 bank accounts in his Form E filed on 11 January 2019, two of the bank accounts are joint accounts that he held with me in Hong Kong and Singapore. I have already closed the Hong Kong joint HSBC account in July 2019 as advised by the bank as this account had been withdrawn (due to the fact that the Respondent failed to make any deposits into this account as he did previously). I am aware that the Respondent holds other bank accounts and assets (under his own name, held jointly with his family members and via his nominees) in different parts of the world but he did not disclose the same in his Form E. the Respondent has not provided full and frank financial disclosure.

13.  It is also not disputed that the wife initially withdrew HK$12 million from the parties’ joint account in January 2018 and other funds including the husband’s salary and other reimbursements as and when they were received. In February 2018 she returned US$400,000 to the husband, but as at the 9 August 2019 she still held HK$5.45 million in her bank account. However, the court was also informed during the hearing that she has liquidated a life insurance policy valued at approximately HK$7.8 million to pay for legal fees and other expenses. Thus she does not have access to any other liquid funds at present.

14.  In so far as the sale of the M shares are concerned, it is accepted that initially it was anticipated that they would sell for approximately HK$10 million and that it was on this premise that the wife was willing to compromise the situation as set out in the April order. It is now clear that the shares have been sold for a significantly reduced sum from that originally anticipated.    

The law

Maintenance pending suit

15.  The law is well known and not in dispute. Section 3 MPPO Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.

16.  Counsel for both sides referred inter alia to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:

a.  The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.  A very important factor in determining fairness is the marital standard of living.

c.  In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure, more aptly to be considered on a final hearing.

d.  Where the affidavit or form E disclosure by the payer is obviously deficient, the Court should not hesitate to make robust assumptions about his ability to pay.  The Court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such situation, the Court should err in favour of the payee.

17.  In so far as this particular case is concerned, it is accepted that the very high standard of living previously enjoyed by the parties during the latter part of their marriage, is of some relevance, as is the husband’s recent reversal of fortunes and his potential windfall from his family’s litigation in Malaysia. It is the duty of the court to try to ascertain the present reality of the situation, in so far as far as that is possible, given the preliminary stage of the proceedings and the fact that neither party has been cross examined. The court should not simply look at the parties’ most recent marital standard of living in a vacuum, but should look to all of the circumstances of the case when coming to a determination.   

Should the wife’s summons for maintenance pending suit/interim maintenance dated the 26 November 2018 be dismissed in its entirety?    

18.  I think not. Although the husband has now complied with the court order dated the 4 April 2019 and it is therefore accepted that the injunction order of the 15 February 2019 stands discharged as set out in order 2 of that order, it is also accepted as set out above, that the wife has received a great deal less than had been originally anticipated. In those circumstances it seems sensible to proceed with her application as it is unlikely that she will have sufficient funds to maintain herself and the children, prior to the conclusion of these proceedings.

If not, how much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for M and A?

19.  In essence the wife’s case is that the husband should pay what she seeks because she says that this is in keeping with the very high standard of living enjoyed by the parties during the course of the marriage and that in any event the husband can afford to pay that sum. I should say at this juncture that although the parties were clearly enjoying a high standard of living when they separated (the wife was living in a rental property with the children in Deep Water Bay, she had staff including two domestic helpers, a Nanny and security personal and she maintained the Yacht for weekend outings which had its own crew and significant expenses otherwise), I do not accept that in the current circumstances it is possible to maintain this same standard of living pending the conclusion of these proceedings. Some adjustment will be necessary.

20.  In part this seems to have been initially accepted by the wife when she e-mailed the husband on the 29 January 2018 explaining why she had transferred the HK$12 million out of their joint bank account. In that e-mail she said inter alia as follows:

J [the husband],

Since our last conversation about my telling you I saw your video, you have not answered my calls.  The WhatsApp message I sent on jan 29th 2:38am –"are you leaving her, yes or no" is not replied when I type this email. And the fact that you didnt return to hk on Sunday as you said on the phone and have not given a new return date, it indicates that you cannot leave this girl and it is possible that you might not return to hk to us in the near future.  Without having many options, I must first make sure there is enough fund to cover the expenditures here. Our bank account is joint, I worry that you might siphon the money out as it is possible that you will need the money to build a new life in Malaysia, and leave our children and I nothing to go by. I have therefore transferred approximately HK$12,000,000 to my sole account. This amount is roughly enough to cover expenditures for 18months. Please see attachment for the breakdown. It is a very rough calculation, I have not included all expenses. The loan repayment for all 3 cars are included as I am a shareholder and director of j and j which these loans are under, I need to ensure the payments can be made but I don't know the balance of the j and j Ltd's account. I have put driver and nanny in because of what you mentioned- the high possibility that you will not continue to be CEO of d which means it will no longer pay for our driver and nanny. This is also a major reason I have to transfer the fund out to secure it because there might not be monthly income anymore from march 2018 onwards.

I didn’t do this with pleasure at all. But with a 5 yr old boy and a 9 months old baby and I have been financially dependent on you, this is an action I must take to be sure we won’t be on the street …. yet.

Also, there needs to be a minimum balance of HKD 5,800,000 in our joint Hebe account to support the deposit link mortgage loan for A.  I will make it an FD.

The Yacht-the mooring and the salary of the captain and crew are high. Without your CEO job, they won’t be paid by d anymore. I have put the yacht in the market for sale to recover some fund and to cut cost. Their salary is not calculated into the monthly expenses in the attachment. But if the yacht cannot be sold and I need to afford their salary and mooring, $120,00,000 will only last me 15 months. I will need to sell your Ferrari to save HKD94,874 a month.

The loan repayment for a is included in the monthly expenses because the tenancy agreement will end this year and there is no indication as of now whether the tenant will renew contract. Without the rental income, the loan repayment plus management fee will have to come out from our account.

I do hope that you will return soon to sort things out. Your actions, decisions and behavior have caused insufferable pain for M and me. As an adult and as partner for 18 years, spouse for 15 years, and a father of a kid a baby, you ought to come forward for a confrontation whatever your decision is.

J

21.  At the hearing Ms Irving for the wife confirmed that her client had had no alternative but to move out of the Deep Water Bay property and that she was now residing at an alternative address that she did not wish to reveal. One of the concerns here is that the wife and children may be vulnerable as they have allegedly been threatened by so called “gangsters”. The wife believes that this issue has arisen because of some of the husband’s business dealings. In any event she has moved to an apartment with a more affordable rent. This is highlighted in a most recent list of expenses. She has not, however, reduced her other general expenses including those related to running a household. Those remain at the same level as the Deep Water Bay property. I should say at the outset that this is not accepted and that it follows that the cost of running a flat is likely to be less than the costs associated with running a house.           

The reasonable needs of the wife and children and the husband’s ability to pay

The wife’s needs

22.  The wife’s up to date budget is set out in her most recent affirmation dated the 9 October 2019, as amended by Ms Irving during the hearing. Ms Irving confirmed that the mortgage payments were largely covered by the rent and that the wife had reluctantly let go of her security detail and therefore she would no longer need to pay for a body guard(s). It was pointed out that this cost may need to be revisited in the event that there were any further incidences. It was acknowledged that the costs associated with running the boat were high, but it was also submitted that these needed to be paid until the boat was sold. In total then the general expenses amount to just under HK$390,000 per month. This includes payment of the salaries for two domestic helpers and a driver plus a Nanny. These are set out in full below, together with the wife’s personal expenses at HK$193,000 per month.     

Item	Amount
GENERAL
Rent	138,000
Mortgage	(49,038)*
Utilities	13,552
Management Fees	8,500
Food	23,256
Household expenses	21,370
Car expenses	11,541
Insurance premia (Health insurance paid by the Respondent’s credit card)	0
Domestic Helper (s)	31,542
Others: Expense for Nanny (HK$38,700), Body guards (HK$50,000)* and pets (HK$3,338) Particular expenses for Yacht (Mooring: HK$32,000; Captain: HK$32,550, Crew: HK$21,000 and Maintenance: HK$13,963)	92,038/42,038 99,513
Subtotal	HK$488,350
Less the mortgage and body guard	HK$389,312
PERSONAL
Meals out of home	10,136
Transport	183
Clothes Shoes Handbags	104,294
Personal grooming	3,132
Entertainment / Presents	20,553
Holiday	36,000
Medical Dental (+ therapy)	4,679
Tax	0
Insurance premia	0
Contribution to parents	10,000
Others: X Boat Club membership (HK$2,899) and C Club membership (HK$1,156)	4,055
Subtotal	193,032

23.  In addition the wife seeks interim maintenance for M and A as follows:

Children’s expenses
School Fees	8,542
Extra Tuition Fees	0
School books and stationery	0
Transport to School	0
Medical Dental	11,850
ECA	13,255
Entertainment / presents	7,980
Holidays	18,000
Clothing / Shoes	6,655
Insurance premia	0
Lunch and pocket money	0
Other Transport	0
Child minding fees	0
Uniform	270
Others:	1,748
	68,300

Based on these figures it seems to me that the total amount that the wife is now seeking amounts to approximately HK$650,000 per month as opposed to HK$700,000 per month as stated during the hearing (i.e. HK$390,000 + HK$193,000 + HK$68,300 = HK$651,300).

24.  The husband for his part maintains that there now needs to be a bit of a reality check and that the wife’s reasonable needs should amount to just under HK$225,000 per month. This is set out in the husband’s 5^th affidavit dated the 25 September as follows:

Household Expenses

Item	Petitioner’s Alleged Amount	My Estimate/ Suggestion
Rent	HK$ 218,045.26	HK$ 100,000
Mortgage instalments (for A)	HK$ 49,038	Covered by rental income
Utilities	HK$ 13,552	HK$ 7,000
Food	HK$ 23,256	HK$ 15,000
Household expenses	HK$ 100,216	HK$ 5,000
Management fees for A	HK$ 7,980	Covered by rental income
Management fees for Deep Water Bay property	HK$ 21,913	Can be saved if the Petitioner will move out of the property
Domestic helper	HK$ 31,542	HK$ 7,000 for 1 domestic helper
Nanny and bodyguards	HK$ 78,038	Nil (A is in school; children no longer need bodyguards)
Expenses for Yacht	HK$ 99,513	Yacht to be sold asap rather than waiting until December 2019
Disputed items of household expenses	HK$643,093.26	HK$134,000
Total monthly differences on household expenses		HK$509,093.26

Personal Expenses

Item	Petitioner’s Alleged Amount	My Estimate/ Suggestion
Meals out of home	HK$ 10,136	HK$5,000
Clothing / Shoes	HK$ 104,294	HK$20,000 -I believe the Petitioner has overstated her spending on Clothing/ Shoes.
Entertainment / presents	HK$ 20,553	$10,000
Holiday	HK$ 36,000	$20,000
Medical/Dental	HK$ 4,679	$3,000
Contribution to parents	HK$ 10,000	This should not be included in MPS.
Others (specify): X Boat Club membership(HK$2,899) and C Club membership(HK$1,156)	HK$ 4,055	HK$1,156 X Boat Club membership fees can be saved once the yacht is sold.
Disputed items of personal expenses	HK$ 189,717	HK$ 59,156
Total monthly differences on personal expenses		HK$130,561

Children’s Expenses

Item	Petitioner’s Alleged Amount	My Estimate/ Suggestion
Medical/Dental	HK$ 11,850	HK$6,000
Extra Curricular Activities	HK$ 13,255	HK$5,000
Entertainment / presents	HK$ 7,980	HK$4,000
Holidays	HK$ 18,000	HK$9,000
Clothing/ Shoes	HK$ 6,665	HK$3,000
Disputed items of children's expenses	HK$ 57,750	HK$27,000
Total monthly differences on children’s expenses		HK$30,750

The main items in dispute

Rent, mortgage and management fees

25.  The wife has moved to much cheaper accommodation and I accept that HK$138,000 per month, in the circumstances of this case, is entirely reasonable. I also accept that the rental for the Discovery Bay property covers both the mortgage repayments and management fees.

Utilities and other household expenses

26.  These are all a bit on the high side and are probably more reflective of the costs associated with running a house as opposed to an apartment. I accept the husband’s estimates for both namely HK$7,000 per month for utilities and HK$5,000 per month for household expenses.  

Food

27.  Likewise the cost of food for one adult, a child and a toddler at over HK$23,000 per month seems very much on the high side. Again I will accept the husband’s estimate of HK$15,000 per month.

Car expenses

28.  The husband does not challenge the car expenses and I accept those at HK$11,500 per month.

Staff

29.  The wife does not work, she is now living in an apartment as opposed to a house, but she is still proposing that allowance be made for two domestic helpers, a driver and a Nanny. She is no longer asking for the cost of the body guards. I will allow for the cost of one domestic helper and a driver. I will not allow for the cost of a Nanny, which I agree seems excessive in the circumstances. In total then I will allow HK$18,000 per month to cover the cost of two domestic staff.

The Yacht 

30.  I will not release the wife from her agreement to sell the Yacht. This is an expense that the parties can ill afford and as agreed steps should now be taken to sell it without more ado. I will allow the sum of HK$100,000 per month to cover the cost of the yacht for the next 6 months only i.e. until the end of July 2020. The Yacht needs to be sold within that time frame.

The wife’s expenses

31.  I largely agree with the husband’s estimates and comments. He has not challenged some of the wife’s expenses and I will allow her estimates for transport, personal grooming, medical etc. I agree that the wife’s contribution to her parents should not form part of the maintenance pending suit budget. Thus it seems to me that in total the wife needs approximately HK$66,700 per month to cover her own personal expenses. In particular, over HK$100,000 per month for clothes and shoes seems excessive and is clearly unsustainable in the short term.

The children’s expenses

32.  I also accept that some of the children’s expenses are capable of reduction. I will reduce the cost of the ECA’s to HK$5,000 per month per child, or HK$10,000 in total. I also accept the husband’s estimates in relation to entertainment/presents (HK$4,000) and holidays (HK$9,000). I will allow HK$5,000 per month for clothing/shoes. The wife’s estimates for school fees, medical and dental and uniform are accepted.

33.  In total then the schedule of expenses should read as follows:

Item	Amount
GENERAL
Rent	138,000
Mortgage	(49,038)*
Utilities	7,000
Management Fees	(8,500)*
Food	15,000
Household expenses	5,000
Car expenses	11,500
Insurance premia (Health insurance paid by the Respondent’s credit card)	0
Domestic Helper (s)	18,000
Others: Expense for Nanny (HK$38,700), Body guards (HK$50,000)* and pets (HK$3,338) Particular expenses for Yacht (Mooring: HK$32,000; Captain: HK$32,550, Crew: HK$21,000 and Maintenance: HK$13,963)	3,300 (100,000)
Subtotal	HK$197,800
Plus the Yacht expenses for 6 months	HK$297,800
PERSONAL
Meals out of home	5,000
Transport	200
Clothes Shoes Handbags	20,000
Personal grooming	3,000
Entertainment / Presents	10,000
Holiday	20,000
Medical Dental (+ therapy)	4,500
Tax	0
Insurance premia	0
Contribution to parents	0
Others: X Boat Club membership (HK$2,899) and C Club membership (HK$1,156)	4,000
Subtotal	66,700

Children’s expenses
School Fees	8,542
Extra Tuition Fees	0
School books and stationery	0
Transport to School	0
Medical Dental	11,850
ECA	10,000
Entertainment / presents	4,000
Holidays	9,000
Clothing / Shoes	5,000
Insurance premia	0
Lunch and pocket money	0
Other Transport	0
Child minding fees	0
Uniform	270
Subtotal	48,662

In total then this amounts to HK$313,162 or say HK$315,000 per month rounded up plus a further HK$100,000 per month for 6 months or until the yacht is sold.

Can the husband afford to pay this sum?   

34.  I accept that some of the husband’s sources of income have dried up, but by the same token I accept that it is more likely than not that he will receive some funds from the trust settlement, which at the very least is a financial resource than he may have recourse to in the short term in order to pay for the immediate needs of his wife and children. In addition, he could cash in the life insurance policy valued in the region of HK$7.8 million. This is another financial resource that is immediately available to him.

Backdating

35.  I do not intend to backdate this order given the fact that the wife does have some financial resources at her disposal.

Costs

36.  I accept that neither party has been wholly successful in the stance taken by them in this application and that some of the wife’s claims do appear to have been somewhat excessive. Likewise, it is of note that the husband made no other proposal to the wife and that she really had no option but to make this application. Consequently, I shall make an order nisi to be made absolute in 28 days’ time that the Respondent husband shall pay half of the Petitioner wife’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

Order

37.  The order shall read as follows:

1)  The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$235,000 per month, commencing on the 1 February 2020 and thereafter to be paid on the 1st day of each succeeding month until the 1 July 2020, or until the yacht is sold, whichever is the earlier and thereafter such sum to be reduced to HK$135,000 per month such sum to be paid on an interim basis until further order.

2)  The Respondent shall pay interim maintenance to the Petitioner for the two children of the family in the sum of HK$90,000 per month per child commencing on the 1 February 2020 and thereafter to be paid on the 1^st day of each succeeding month until further order.

3)  There shall be a further First Appointment hearing on the 26 March 2020 at 11 am.

4)  Both parties do personally attend that hearing.

5)  There shall be an order nisi to be made absolute in 28 days’ time that the Respondent do pay half of the Petitioner’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

6)  There shall be liberty to apply.