CPGK v. TMSK

FCMC 16628/2017

[2021] HKFC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16628 OF 2017

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J U D G M E N T

(Ancillary Relief)

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Introduction

1.  This is an application by the petitioner (“the wife”) for ancillary relief for herself and the only child of the family. By consent, the respondent (“the husband”) agreed to pay periodic child maintenance in sum of HK$3,000 per month. The wife further seeks HK$3.23 million lump sum payment from him on accommodation needs of herself; accommodation needs and general expenses of the child of the family.

The proceedings

2.  The wife and the husband were married on 18 October 2008. The wife first petitioned on 4 July 2016 on ground of unreasonable behaviour (FCMC 8192 of 2016). Subsequently, she filed a fresh petition on 20 December 2017 for divorce on ground of two-year separation. On 28 August 2018, decree nisi was granted. The length of marriage was 8 years.

3.  The wife and husband have one son (“the son”), he was 11 years old at time of trial. By consent, on 14 June 2018, joint custody of the son was granted to both parties, care and control was granted to the wife with reasonable access to the husband including some defined access arrangements.

4.  Previously, in FCMC 8192 of 2016, by way of a consent order dated 9 November 2016, the husband was ordered to pay both maintenance pending suit for the wife and interim maintenance for the son totalling HK$6,000 per month. The sum was duly paid by the husband.

The family

5.  After marriage, the family had lived in a rented premise of 550 square feet in Mei Foo Sun Chuen, Kowloon (“the matrimonial home”) at a monthly rent of HK$12,000, each of the wife and the husband contributed HK$6,000. Without employing a domestic helper, the family usually joined dinner with the husband’s mother 3 times per week. They went on holidays twice a year and enjoyed the benefit of a private club facilities under the club membership of husband’s mother.  

6.  For reason of unhappy difference, verbal abuse the wife has suffered, she and the son moved out from the matrimonial home in September 2015. The husband complained the wife left the matrimonial home, a rented premise, with the son 6 month prior to the expiry of lease, he could not afford HK$12,000 rent on his own which rendered the lease forfeited. The husband moved back to live with his mother afterwards.

7.  The wife is 38 years old who has been working as a kindergarten teacher since 2012 after her postgraduate degree in early childhood education. She is now earning HK$31,557 per month. The husband has no dispute on the wife’s asset valued at around HK$300,000 at time of filing her updated Form E on 4 October 2019. It is in the evidence the wife did not own landed property nor did she have much assets. The value of her insurance policy was around HK$33,741; she has HK$8,430 cash in bank.  She has loans to repay including credit card repayment, government student loan and some personal loan making up less than HK$100,000.

8.  The husband is 48 years old. He was equipped with a diploma in accounting and computer studies. Prior to separation, the husband was a “working-at-home” father carrying on business in jewellery design, he was able to earn around HK$25,000 – HK$28,000 per month. Whilst the wife was at work, the husband was responsible to take care of the son at home. After the wife and the son left the matrimonial home, he started to work as an administrative assistant to a CEO of a PRC company with a lesser monthly salary at HK$17,000.

9.  The son is 11 years old attending Grade 5 in a private school in Hong Kong. He is expected to complete both primary and secondary education in the same school with a view to study abroad in the future. The son suffers from G6PD deficiency, it is a genetic deficiency which causes a reaction to some kind of food, chemicals (e.g. mosquito repellent) and medicine. The disease does not require regular medication or frequent visits to a doctor save extra care in diet and supplemented with Chinese herbal medication.

The Mei Foo property

10.  Apparently, the husband has a relatively lower income with limited assets. Their financial position has changed when the husband  inherited a landed property in Mei Foo Sun Chuen from his grandfather (“the Mei Foo property”).  The Mei Foo property was bought by the husband’s grandfather in his sole name in 1969 for his family.  On 13 May 1997, the grandfather added the husband as a registered owner of the property and both of them become joint tenants. Sadly, the husband’s grandfather passed away in 2000. The husband had become the sole registered owner of the Mei Foo property by succession. The Mei Foo property was valued at HK$8.4 million his updated Form E filed on 11 October 2019.

11.  Currently, the Mei Foo property is occupied by the husband and his mother, the husband’s father is out of town and her sister had moved out after marriage.

12.  The wife accepts the Mei Foo property was a non-matrimonial property.

Agreed child maintenance – a resolved issue

13.  Both the wife and the husband are able to come up with an agreement on the son’s monthly expenses (excluding the son’s general expenses).  The son’s expenses is more particularly stated in the wife’s updated Form E:

Item	Amount ($)
School fees	3,898.00
Extra tuition fees	2,000.00
School books and stationery	200.00
Transport to school (including school bus)	600.00
Medical/Dental	200.00
Extra Curricular Activities	500.00
Entertainment/Presents	50.00
Clothing/Shoes	250.00
Lunches and pocket money	1,000.00
Uniform	150.00
	Total: 8,848.00

14.  Whilst the wife and husband’s salary are HK$31,557 and HK$17,000 respectively, approximately in ratio of 2:1, the husband is willing to pay and the wife accepts HK$3,000 as the son’s monthly expenses (excluding general expenses) and such sum should be continued until the son reaches the age of 18 or until he finishes his full time education, whichever is earlier.

The wife’s application on ancillary relief and her open offer

15.  The wife is running a needs – based case.  Letting alone the agreed HK$3,000 child maintenance, the wife is contended with a lump sum  payment that the husband to pay her HK$3 million and costs of the ancillary relief proceedings to satisfy the accommodation needs of herself and the son. The wife understands the husband intends to keep the Mei Foo property, she is not seeking an order for sale but expects the husband to settle the lump sum payment by way of mortgaging the said property.  

16.  This is also the wife’s open offer in this ancillary relief trial.

The husband’s case and his open offer

17.  The husband disagreed. Albeit the husband is now the sole registered owner of Mei Foo property, he claimed his mother and sister are also beneficial owners. The three of them are entitled to 1/3 share each. The husband is unwilling to share Mei Foo property with the wife or to call upon the said to satisfy the accommodation needs of the wife and the son. He blamed the wife has never contributed to the keeping of the Mei Foo property. He believed his sister is more entitled to a share of the said property because she had paid more than HK$100,000 for renovation in 2002.

18.  The husband sees the wife has a better financial status than himself, upon detailed calculation, he said the wife should be able to save on  regular expenses to accumulate sufficient funds to pay for her rent. The wife is earning HK$31,557 per month, coupled with HK$6,000 maintenance paid by the husband, the wife should be able to satisfy (i) the accommodation needs of herself and the son; and (ii) general needs of the son. The son being a Canadian citizen, the husband preferred to send him to Canada for further education with a view to enjoy lower school fees.

19.  The husband admitted he did not achieve much in his jewellery design business, he turned to a main carer of the son at home. He explained for the lack of actual working experience, he could not have obtained a better job other than a personal assistant to CEO of a PRC company. The best salary he could have earned is now at HK$17,000 per month. Including payment of HK$6,000 per month as maintenance pending suit and interim maintenance for both the wife and the son, his monthly expense was HK$15,700 with a sum of HK$1,300 savings.

20.  Having said that, on top of the agreed HK$3,000 periodic maintenance for the son’s expenses (excluding general expenses), the husband is willing to pay the wife a lump sum of HK$970,000. This is also the husband’s open offer.

Beneficial interest of the Mei Foo Property

21.  By all accounts the beneficial interest of the Mei Foo property is not much of a question here, the husband had once alleged the said property belonged to himself, his mother and his sister in equal shares, nonetheless, no proper application has been taken out in time nor the husband has attempted to call either his mother or his sister to testify at trial. On the husband’s admission that he is the sole registered owner of Mei Foo property, the husband as the sole beneficial owner is unequivocally assured.

The issue

22.  The issue here is whether the Mei Foo property being a non-matrimonial property should be ring-fenced by the husband or should it be applied to satisfy (i) the accommodation needs of both the wife and the son and (ii) the general needs of the son.

Witnesses

23.  The wife and husband are the only witnesses at trial.

Applicable principles for ancillary relief

24.  In so far as ancillary relief is concerned generally, the landmark case of LKW v. DD (2010) 13 HKCFAR 582, Mr. Justice Ribeiro PJ reiterated a four-step approach to be adopted in deciding ancillary relief, namely,

(i)   identification of assets;

(ii)   an assessment of parties’ needs;

(iii)   whether to adopt sharing principles; and if so; and

(iv)   whether or not there are good reasons to depart from an equal division of assets.

25.  Briefly, in applying the 4-stage approach as stated in LKW v. DD, the underlying principles that permeate all ancillary relief proceedings are (i) fairness; (ii) absence of discrimination; (iii) upholding the concept of yardstick equality; and (iv) the rejection of a need for a minute retrospective investigation of parties’ finances. This is also how section 7 of Matrimonial and Proceedings Ordinance, Cap 192 (“the MPPO”) has expressed.  Section 7 of MPPO reads,

“7. Matters to which court is to have regard in deciding what orders to make under sections 4, 5 and 6

(1)   It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say—

(a)   the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b)   the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)   the standard of living enjoyed by the family before the breakdown of the marriage;

(d)   the age of each party to the marriage and the duration of the marriage;

(e)   any physical or mental disability of either of the parties to the marriage;

(f)   the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g)   in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”

26.  The Court is empowered to order maintenance for the child of the family pursuant to section 5, including periodic payments, in MPPO.

“5. Financial provision for child of the family in cases of divorce, etc.

(2) The orders referred to in subsection (1) are—

(a) an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments and for such term as may be so specified;…”

Applicable principles in dealing with “non-matrimonial property”

27.  This topic is well discussed in SSLT v. SMFC [2019] HKFC 250 (FCMC 11056 of 2017) HHJ I Wong gave a detailed framework on dealing with “non-matrimonial property” in ancillary relief proceedings from paragraph 89 onwards. The applicable approach is summarised below:

(i)   Matrimonial property is “property acquired during the marriage otherwise than by inheritance or gift, such property being the financial product of the parties’ common endeavour”: SSLT v SMFC [2019] HKFC 250 §89, Miller v Miller; McFarlane v McFarlane [2006] 1 AV 618 §22.

(ii)   Even a property is identified as “non-matrimonial”, there is no hard and fast rule that such property should be excluded.  It is a matter of discretion to be exercised taking account of all the circumstances of the particular case: SSLT v SMFC supra, §90.  It is just one factor out of a number of relevant factors such as duration of marriage or whether the asset was acquired during post separation. This is a balancing exercise that is fact-specific and discretionary.

(iii)  To decide whether the sharing principle is applicable in respect of the “non-matrimonial property”, there are two different approaches in English cases, the “telescoped approach” and the “two stage approach”.  The telescoped approach is simply to adjust the percentage from 50% to take into account the non-matrimonial property. The sharing approach is to identify the scale of the non-matrimonial property to be excluded, leaving the matrimonial property alone to be divided in accordance with the equal sharing principles.  Hong Kong Courts favoured the “telescoped approach”: SSLT v SMFC supra, §91.

(iv)  Sharing principle could apply to non-matrimonial property if such an approach was justified by the circumstances of the case”: AR v AR (Treatment of Inherited Wealth) [2011] EWHC 2717 (Fam), [2012] 2 FLR 1; SSLT v SMFC supra, §101.  However, the sharing principle did not justify any additional or enhanced award above the applicant's needs: supra, SSLT v SMFC §102.

(v)  The discretion to the determination of a fair award is that of need and that the length of the marriage, the wife’s contribution and the standard of living, are all factors which can be given appropriate and sufficient weight within the principle of need: supra, SSLT v SMFC §102.

Discussion

28.  This case brings into sharp focus whether the Mei Foo property, being a non-matrimonial property should be applied towards satisfying the needs of the wife and the son. While it remains a discretion without hard fast rule to exclude it, the Court shall consider all circumstance of each case to achieve fairness between the parties. Nothing in this case prevent me to adopt the “telescoped approach” welcomed by the Hong Kong Court. The telescoped approached, in short, is to adjust the percentage from 50% to take into account the non-matrimonial property (See: WLK v. TMC & PW v PPTW (Ancillary relief; non matrimonial property) [2015] HKFLR 213).

29.  Most families in Hong Kong are facing costly housing expenses. In light of a needs based case especially the core issue here is satisfaction of housing needs of the wife and the son, the Court shall take it as an important and primary need to be considered and such needs shall be met by parties’ resources. 

Identification of assets

30.  Following the wife’s view taking a 50% discount to the value of mandatory provident fund because of illiquidity; she further updated her personal loan from HK$18,039.92 to HK$16,405.20. Mr Leung, solicitor for the wife has helpfully provided with the family asset in the table below. It is clear that the Mei Foo property is the major asset. In contrast, the husband’s assets less the Mei Foo property is even lesser than the wife.

The wife’s assets (HK$)		The husband’s assets (HK$)
Item	Amount	Item	Amount
Bank Accounts	8,432.40	Landed Properties	8,400,000.00
Insurance Policies	33,740.58	Bank Accounts	7,832.07
Valuable Personal Items	7,000.00	Investment holdings (eg shares)	69.90
Pensions (MPF)	161,483.89	Pensions (MPF)	114,567.19
Less Liabilities	(78,437.07)	Less Liabilities	(5,933.00)
Subtotal: 132,219.80		Subtotal: 8,516,536.16[1]
Total ($): 8,648,755.96

The parties’ income and earning capacity

31.  The wife remains a kindergarten teacher earning a monthly salary of HK$31,557. Having become a kindergarten teacher since she has obtained a postgraduate degree in Early Childhood Education in 2012, the wife is expected to continue her career with gradual increase in income in line with experience.

32.  The husband is now working as a board chairman’s assistant of a PRC company since April 2018 at a monthly salary of HK$17,000. Prior to his current employment, the husband worked as jewellery designer / sales earing around HK$25,000 – HK$28,000. The husband testified in evidence that he has obtained a diploma in accountancy and computer studies, in absence of tangible evidence on whether the husband is able to achieve anything better as a jewellery designer, a gradual increase in income in accordance with experience is also expected save his salary may not be as high as the wife.

33.  I see both the wife and husband have steady income; the husband’s earning capacity is lower than the wife.

The parties’ needs - the husband

34.  The husband has no accommodation expenses when he continued to stay in the Mei Foo property with his mother. The husband stated in his 2^nd Form E that his overall monthly expenses, including HK$6,000 maintenance pending suit, is HK$15,700.

The husband’s overall monthly expenses (Current)
Item	Amount (HK$)
The husband’s general expenses	5,300
The husband’s personal expenses (including HK6,000 maintenance pending suit)	10,000
The husband’s extra expenses for the	400
child’s entertainment, gift & holiday
Total ($): 15,700

35.  After determination of ancillary relief and upon the husband’s consent to pay HK$3,000 child maintenance as son’s expenses (excluding general expenses), his net monthly expenses should be HK$17,000 – HK$3,000 = HK$14,000. This figure is arrived at on assumption that the husband is able to stay in Mei Foo property with his mother. On the other hand, if the husband chose not to stay in Mei Foo property or it be realised, he is expected to pay for his accommodation expenses. It is not unfair to assess the husband’s accommodation needs to a sum around HK$14,500, a realistic level of rent for a premise to accommodate himself and his mother. Taking such needs into account, the husband’s income is unable to meet all his needs.

36.  The husband is 38 years old and his mother is already in her 70s.  I opt for a longer period of time until the husband reached 70 years old. The calculation of such needs is therefore:

     HK$14,500 x 12 months x 32 years = HK$5,568,000.

37.  In such circumstance, I accept the husband’s income is able to satisfy his needs and HK$3,000 child maintenance when he is residing in Mei Foo Property; or alternatively, with an additional accommodation needs of HK$5,568,000 until he reaches 70 years of age.

The parties’ needs - the wife & the son

38.  After the wife separated with the husband in September 2015, she rented a 300 square feet premise at HK10,300 per month.  As a working mother, she employed a domestic helper to take care of the son. Subsequently, in or about March 2019, the wife shared a rented 900 square feet premise with her female colleague at a monthly rent of HK$22,000. At time of trial, the wife anticipated the said lease will end in 2020 because her colleague planned to return to the United Kingdom for good. The wife will move to a rented premise at HK$15,000 per month for the first year and at HK$16,000 per month for the second year in the same area commencing 6 – 9 months from the termination of lease. In the interim, she found a temporary accommodation in a hotel for HK$14,700 per month. She was also required to pay storage fee of HK$4,340 per month for her furniture and belongings during the same period.

39.  Mr Leung submitted, there had been substantive change of accommodation of the wife and the son after separation, the future needs of such items would increase gradually in forthcoming years. The wife predicts her accommodation needs (as well as the son) will elevate from the level of current rent to HK$22,000 after termination of the new lease, the size of the wife’s disposable income is far insufficient to cover her monthly expenses and the general expenses of the son. The wife further said, solely relying on her modest income, she has no means to take care of the son’s medical and emergency expenses.

40.  Not only did the wife asked the husband to shoulder all the accommodation needs of herself and the son, she asks the husband to pay for the son’s general expenses as well. The particulars of general expenses which covers accommodation needs is stated in the table below. The wife says the son’s respective share of general expenses less rent should be (HK$22,368.40 – HK$11,000) ÷ 2 = HK$5,684.20 per month.  

Item	Amount ($)
Rent	11,000.00
Utilities	1,038.00
Food	3,200.00
Household expenses	400.00
Insurance premia	2,210.40
Domestic helper	4,520.00
Total ($): 22,368.40

41.  Mr Leung submitted the agreed periodic maintenance for the son does not cover the son’s portion of expenses which was borne by the wife solely. The Court shall take into account the proportion of expenses the wife has had shouldered when determining ancillary relief.

42.  In this instance, the wife and the son is expected to stay in rented premise in the near future or until the son finishes his full time education. The wife projected a gradual increase in monthly rent from HK$15,000 to HK$22,000 per month until the son reaches 23, at time when he completes full time education (which is 12 years from the date of trial).

43.  Mr Leung projected the accommodation needs of the wife and the son in the following table. As I see from there HK$15,000 to HK$22,000 monthly rent on an assumption that the wife will continue to rent a flat for herself and the son until 2023 at a time when the son finishes his full time education; together with HK$5,684.20 child’s general expenses (rounding up to HK$6,000) per month. Mr Leung took rounded up figures from per month to HK$21,000 to HK$28,000 per month.

	Case 1 ($)	Case 2 ($)	Case 3 ($)	Case 4 ($)
Child’s Portion of General Expenses (Current – Excluding accommodation[2])	5,684 (rounding up to 6,000)	Assuming 6,000	Assuming 6,000	Assuming 6,000
Accommodation	15,000	16,000	18,000	22,000
Total:	21,000/m	22,000/m	24,000/m	28,000/m
× 12 months × 12 or × 12 years (by the time the son reaches 23 and finishes full-time education)	3,024,000	3,168,000	3,456,000	4,032,000

44.  I must say in the outset Mr Leung has pitched too high the accommodation needs of the wife. I take into account the living standard of the family prior to separation that they have lived in a 550 square-feet premise, the wife’s case on formulating the accommodation needs of herself and the son should be discounted. The wife’s needs should be in line with the standard of living during marriage. I take into account the fact that both she and the husband shared the rent equally by paying HK$6,000 each from their income. It cannot be assumed easily that monthly rental payment should be elevated from HK$11,000 to HK$22,000 through time. Nevertheless, I also take into account the gradual increase in rent in property market, a fair assessment on accommodation needs should be maintained in the mid-range between HK$11,000 – HK$22,000 per month. In arriving a figure, I adopt a fair amount of monthly rental amount of HK$14,500, a level of rent slightly higher than HK12,000 (during marriage) and be the same level of rent as the husband.

45.  The accommodation needs of the wife and the son from trial onwards to the son reached 23 shall be:

HK$14,500 x 12 months x 12 years = HK$2,088,000.

46.  The husband did research on the level of rent the wife should be paying after her colleague left town, he came to a conclusion that rental payment varies from HK$10,600 to HK$12,800 for a 300-square feet premise near the son’s primary school. He further sees it is not necessary to employ a domestic helper as the son gets older, at that time, the expenses of HK$4,550 being salary of the domestic helper can be saved and accumulated.

47.  Of the remaining general needs of the son, I accept the husband’s argument that the sum should be discounted by releasing the domestic helper when the son reached certain age. In broad terms, I see fit to say a domestic helper is no longer necessary when the son reached an age of 16. In other words, the son’s general needs shall be less than now by excluding the salary of a domestic helper. i.e. HK$5,684.20 – (HK4,520 ÷ 2) = HK$3,424.20. The general expenses of the son should be:

(i)  from 11 years old until the son reached 16 years old:  

HK$5,684.20 x 12 months x 5 years = HK$341,052;

(ii)  from 16 years old until the son reached 23 years old (completion of full time studies)

HK$3,424.20 x 12 months x 7 years = HK$287,632.80;

(iii)  total: HK$341,052 + HK$287,632.80 = HK$628,684.80.

48.  The quantified needs of the wife and the son is therefore HK$2,088,000 + HK$628,684.80 = HK$2,716,684.80.

How shall the Mei Foo property be applied to satisfy the needs of the husband, the wife and the son?

49.  In this case, a telescoped approach shall be adopted here to deal with the non-matrimonial property. The factor will be taken into account to simply adjust the percentage of sharing from 50% of the total assets of the parties[3]. The percentage may vary on case-by-case basis since facts of each case are different, for example the composition of matrimonial and non-matrimonial assets in the total pot is different, the length of marriage is different, whether there is child/children out of the marriage, etc. The relevant factors to consider there are (i) parties’ long 8-year marriage (around 7 years until separation); (ii) the son’s age when he is still at school age with 12 years of full time education ahead.

50.  I share same view with Mr Leung that both the accommodation needs of the wife and the son together when such needs are inseparable. It follows accommodation needs and children needs has to be taken care of in order to achieve overall fairness.

51.  The wife, nevertheless, is entitled to a lump sum to satisfy her accommodation needs upon divorce or at least for substantive number of years. This approach is well adopted in WYSL v FHCBA [2018] HKCFI 1543, AVT v VNT [2015] HKFLR 385 and Re G [2004] 1 FLR 997).

52.  On this point, I accept the husband has to provide an accommodation for himself and probably his mother. I have quantified such needs hereinabove in sum of HK$5,568,000. The aggregate needs of himself, the wife and the son are (HK$2,716,684.80 + HK$5,568,000) = HK$8,284,684.80. The needs can be satisfied by pulling resources from the Mei Foo property which is likely to be realised.

53.  One step forward, Mr Leung compared the amount of lump sum payment with one of a 50% sharing. It resulted HK$2,716,684.80 million was less than equal division of aggregate family assets by 17%. The wife and the son’s accommodation needs represents less than 40% of the total family asset, namely,

(i)   The wife’s asset:	HK$132,219.80
(ii)   Lump sum to wife:	HK$2,716,684.80
(iii)   Total:	HK$2,848,904.60
(iv)   Aggregate family asset:	HK$8,648,755.96
(v)    Percentage of family asset obtained:
(HK$2,848,904.60 / HK$8,648,755.96 ) = 32.9%

54.  I aware a 17.1% percent considerable departure from 50% - 50% sharing of total matrimonial assets, the percentage may vary from case-by-case basis since each case are different. In this case, the wife is only asking for HK3.23 million being around 40% of the total matrimonial asset. I accept a further downwards deviation of 7% is proper and reasonable because (i) the wife is 10 years younger than the husband; (ii) higher education qualification than the husband; (iii) earning twice as much as the husband and (iv) with a higher earning capacity.

55.  The quantified needs of the wife, i.e. HK$2,716,684.80 should be satisfied from the husband’s resources of Mei Foo property. As indicated at the beginning of this judgment, the wife understands the husband intends to keep the Mei Foo property and that was why she did not apply for an order for sale of the said property. I see fit to order the husband to pay a lump sum to the wife within 3 months from granting decree absolute which allow the husband time to arrange such payment.

Costs

56.  Costs follow the event in ancillary relief proceedings. This case neither party could be said to have been completely successful. The wife is more successful when the lump sum awarded was closer to her open offer. The fact remains that the wife had no option but to proceed with trial to achieve this judgment. I therefore make a costs order nisi to be made absolute within 14 days, unless an application to vary to follow by way of summons, that the husband do pay 80% of the wife’s costs of and occasioned by the ancillary relief application including all costs reserved.  The wife’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Orders

57.  I make the following orders:

(i)  The maintenance pending suit and interim maintenance order dated 9 November 2016 in FCMC 8192 of 2016 be discharged.

(ii)  The husband (the respondent) shall pay HK$3,000 per month to the wife (the petitioner) as periodic payment for the son (the child of the family), the first payment to be made on 1 June 2021 and subsequent payments on the 1^st day of each succeeding month until the son (the child of the family) attains the age of 18 or ceases his full-time education, whichever is later.

(iii)  The said periodical payment be credited into the wife’s (the petitioner’s) designated bank account.

(iv)  Subject to first charge of the Director of the Legal Aid, the husband (the respondent) shall within 3 months from the granting of decree absolute, pay a lump sum of HK$2,716,684.80 to the wife (the petitioner).

(v)  There be a costs order nisi that the husband (the respondent) do pay the wife (the petitioner) 80% of the wife’s (the petitioner’s) costs of and occasioned by the ancillary relief application, including all costs reserved, to be taxed if not agreed. The above costs order nisi shall be made absolute in absence of application to vary by way of inter parte summons within 14 days from the date of this judgment.

(vi)  The wife’s (the petitioner’s) own costs be taxed in accordance with the Legal Aid Regulations.

(vii)  Declaration pursuant to section 18 of the Matrimonial Proceedings and Properties Ordinance (Cap 192).