TTW v. LLYS

FCMC 6296 / 2008

[2023] HKFC 40

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6296 OF 2008

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D E C I S I O N
(Leave to enforce maintenance due over 12 months)

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Foreword

1.  On 12/3/2020, Messrs. Benny Kong & Tsai, Solicitors (“BKT”)  filed a Notice to Act for the Respondent wife (“W”). 

2.  On 4/9/2020, BKT filed the following documents :-

(a)  Inter Parte Summons (“Enforcement Summons”);

(b)  Affirmation of W with 20 exhibits; and

(c)  Praecipe for issue of Judgment Summons.

3.     The Enforcement Summons was scheduled for hearing on 21/12/2020 seeking :-

(a)  Leave be granted for W to enforce payment by the  Petitioner husband (“H”)  for arrears due more than 12

months; and

(b)  H do within 28 days comply with undertakings that he  had provided and embodied in a Consent Order dated  5/9/2008 (as amended on 11/11/2008)  (“Consent  Order”).

4.  According to the marginal note of the Enforcement Summons, it was taken out under :-

-  Section 12 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”); and

-  Order 45 rules 6(2)  and (3)  of the Rules of the High Court, Cap.4A (“RHC”).

5.  The terms of the undertakings in the Consent Order, insofar as W’s application was concerned, read as follows :-

“He [the Petitioner] shall be responsible to sell the Former Matrimonial Home as soon as practicable within 2 years after the issuance of Decree Absolute at the price and terms to be decided by the Petitioner solely and the proceeds of sale (after deduction of all necessary costs and expenses in relation to the sale, including but not limited to redemption money to the mortgagee bank, estate agent commission and legal costs)  shall be shared by the two children of the family, namely, TWT and TTY and the Petitioner in equal shares”.

6.  The Enforcement Summons sought for 2 sums of money, initially fixed at HK$231,320 and HK$1,234,980 which W said they represented the outstanding net proceeds of sale of the former matrimonial home which need to be paid by H to the 2 children TWT and TTY respectively.  These amounts were subsequently amended and finally read as HK$358,329 and HK$1,361,989 in the Amended Enforcement Summons.  It should be noted that these 2 sums were worked out by W for her application and included in her Enforcement Summons; neither of those sums or was there any monetary sums of money appeared in the Consent Order.

7.  H was represented by Messrs. Raymond Luk & Co., Solicitors (“RL”)  to oppose W’s Enforcement Summons.

Chronology of W’s application

8.  W’s Enforcement Summons was scheduled for hearing on 21/12/2020.

9.  On 18/12/2020, a Consent Summons was filed seeking leave to vacate the hearing on 21/12/2020 and that the Enforcement Summons be adjourned for substantive argument to be fixed in consultation with Counsel’s diaries with 1 day reserved.

10.  Nonetheless, the hearing on 21/12/2020 was not vacated.  Directions were granted for the filing and exchange of affirmations in preparation for the substantive argument of the Enforcement Summons.  At this hearing, H’s lawyer Mr. Luk confirmed that H would not be arguing on his ability to pay those sums claimed by W.

11.  On 24/5/2021, W issued a Summons seeking leave to amend the amount of the 2 sums stated in the Enforcement Summons from HK$231,320 to read as HK$341,969.50; and from HK$1,234,980 to read as HK$1,345,629.50.  This Summons was scheduled for hearing on 1/6/2021 which was the date already scheduled for the substantive argument of W’s Enforcement Summons.  Despite the lateness for seeking amendment, there was no Affirmation filed either from W or her lawyers BKT to explain (a)  reasons for the lateness; and (b)  the need for the amendment.

12.  At the hearing on 1/6/2021, H was represented by Counsel Miss Lorinda Lau.  W’s Counsel Miss Karen Wong orally sought leave to withdraw the Summons issued on 24/5/2021 for the reason that W was able to find some other documents and invoices on renovation costs which would affect the amount of claim against H.  The intended draft amendment under the Summons issued on 24/5/2021 no longer hold good and further calculation was being contemplated.  At the end, leave was granted to W to withdraw the Summons issued on 24/5/2021 but she had to pay costs to H with Certificate for Counsel.  The trial on that day was also vacated and re-fixed for 2 days on 25/11/2021 and 26/11/2021.

13.  On 21/7/2021, W issued another Summons seeking leave to amend the 2 sums of money from HK$231,320 to read as HK$358,329; and from HK$1,234,980 to read as HK$1,361,989 respectively. This Summons was scheduled for hearing on 10/8/2021.  This time W filed her 3^rd Affirmation dated 19/7/2021 by way of supporting the application for amendment.

14.  On 9/8/2021, a Consent Summons was filed seeking leave to vacate the hearing on the following day (that is, 10/8/2021).  In the Consent Summons, leave was also sought for H to file his affirmation in reply to W’s 3^rd Affirmation with consequential leave for W to file her further affirmation in reply if H did so.

15.  Nonetheless, the hearing on 10/8/2021 was not vacated.  Deputy Judge Doris To, with H’s consent to the amendments, only granted leave for W to amend the amount of the 2 sums of money in her Enforcement Summons without (emphasis added)  granting leave for filing of W’s 3^rd Affirmation which by that time had already been “filed” together with the Summons issued on 21/7/2021.

16.  On 22/11/2021, BKT issued a further Summons seeking “retrospective” leave for filing of W’s 3^rd Affirmation dated 19/7/2021 after opposition from RL for it to be included in the Trial Bundle.  This further Summons was scheduled for hearing on the 1^st day of the adjourned trial on 25/11/2021.  To avoid further delay of the once adjourned trial, this Summons was disposed of summarily.  Retrospective leave was granted to W for her 3^rd Affirmation to be adduced as evidence with costs of the application be granted to H.

17.  The trial then proceeded.

Some salient undisputed historic facts

18.  On 1/9/2008, the former matrimonial home was sold at the consideration of HK$23,280,000.  The net proceeds of sale (after deducting redemption money to the mortgagee bank, estate agent commission and legal costs etc)  was HK$16,037,200.

19.  Prior to the sale of the former matrimonial home and in May 2008, H purchased the 2^nd floor of Block xx in a residential complex in Tai Po, New Territories (“2^nd Floor unit”)  at the consideration of HK$2,960,000 in the name of the elder child TWT who was at the age of 20.  There was no mortgage for such purchase.

20.  In the same month of May 2008, H then purchased the 1^st floor of Block xx of the same residential complex (“1^st Floor unit”)  at the consideration of HK$2,000,000 in his own name.  In November 2008, H transferred the ownership of this 1^st Floor unit to the younger TTY after she had reached the age of 18 two months ago in September 2008.  There was no mortgage for this purchase. 

21.  Between May and August 2008, H also paid renovation expenses for the 1^st and 2^nd Floor units.

22.  In September 2008, H paid to the elder child TWT and also the younger child TTY each of them a sum of HK$1,000,000 by depositing cheque(s)  to their respective account(s)  with the Hang Seng Bank Limited.

23.  On 20/9/2017, H transferred a sum of HK$100,000 to the elder child TWT’s bank account with the Hang Seng Bank Limited.

24.  On 22/9/2017, H transferred a sum of HK$50,000 to the younger child TTY’s bank account with the Hang Seng Bank Limited.

W’s Enforcement Summons and related procedure

25.  Before moving to the merits of W’s application, it was pertinent for me to state clearly some important procedural matters which materially affected W’s application as per her Enforcement Summons.  I noticed that neither party’s legal team had raised them at any stage or in the course of trial or even in their respective Closing submissions.

26.  To start with, BKT filed (a)  the Enforcement Summons with the hearing date of 21/12/2020; and (b)  W’s 1^st Affirmation with 20 exhibits adding up to over 100 pages; and (c)  the Praecipe for the issue of Judgment Summons, all 3 of them in “one-go” (emphasis added).  In my decision, this way of application was emphatically wrong in terms of procedure.

27.  Subject to my observation below[1] on W’s Praecipe for the issue of Judgment Summons and other related procedural matters on enforcement, leave to enforce arrears which had been overdue for over 12 months under maintenance order(s)  or judgment(s)  must first be obtained from the Court by way of an application[2], which normally would be by way of an ex parte application.  Without leave first having been obtained, the judgment creditor would be in no position to seek enforcement of those arrears due over 12 months by just lodging the requisite praecipe for the issue of judgment summons, even if judgment summons was accepted to be the correct mode of enforcement.  That said, W’s Enforcement Summons dated 4/9/2020 should not be filed without having first obtained leave of the Court.  Things then moved along swiftly by BKT who saw fit to fix a hearing date of 21/12/2020 to hear the Enforcement Summons.

28.  In view of W’s case against H, namely, for alleged breach of undertakings (emphasis added)  embodied in the Consent Order, her application for leave under Section 12 of the MPPO was plainly wrong and incorrect.

29.  Section 12 of the MPPO are set out below :-

“12. Payment of certain arrears unenforceable without the leave of the court

(1)  A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5)  or 8(6)  without the leave of the court if those arrears became due more than 12 months before proceedings to enforce the payment of them are begun.

(2)  The court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment of the making of payment by instalments)  as that court think proper, or may remit the payment of such arrears or of any part thereof.

(3)  An application for the grant of leave under this section shall be made in such manner as may be prescribed by rules of court.”

30.  Clearly, the entire Section 12 only covers recovery of payments (emphasis added)  falling due and unpaid over 12 months.  In the present case and to be more precise, within the terms of the Consent Order, there was no order made by virtue of section 3, 4(1), 5(2), 8(5)  or 8(6)  of the MPPO for which enforcement for payment due and unpaid could be sought.  The undertakings allegedly to have been breached by H fall within the preamble part of the Consent Order.  This does not satisfy Section 12(1)  of the MPPO.

31.  Those statutory provisions referred to within Section 12(1)  of the MPPO covers maintenance pending suit, periodical payment(s), secured periodical payment(s)  or lump sum(s)  but not otherwise such as undertakings (emphasis added)  as in the present case.  That said, I failed to see how BKT could, or any need to, seek leave under Section 12 of the MPPO for enforcement of the alleged breach of undertakings by H.

32.  Furthermore, even on such incorrect footing for seeking leave, the Praecipe for the issue of Judgment Summons drafted by BKT was far from satisfactory and wrong in its contents.  At paragraph 1 of the Praecipe, it just referred to the alleged non-compliance by H of the undertakings[3] embodied in the Consent Order by reciting the words of the undertakings verbatim (emphasis added)  without further ado as to what sums was actually outstanding in respect of which judgment summons was required to be issued.  However, this was not difficult to understand since there was no order for payment of any specified monetary sums of money either within the terms of the undertakings or anyway within the entire Consent Order.

33.  W’s Enforcement Summons sought for 2 different reliefs, namely, leave to enforce payment of arrears due more than 12 months[4]; and, compelling H within 28 days to comply with the undertakings given by him[5].  In my decision, these 2 different reliefs are mutually exclusive as they did not go “hand-in-hand” in parallel or together.  It was clear that they came from different perspective.

34.  In Family Court cases, parties’ acknowledgment and undertaking(s)  placed as preamble in consent summonses upon which, or subject to which, financial orders are granted are commonly seen day-in and day-out.  Enforcement for non-compliance or breach of undertaking(s)  embodied within the preamble of a court order was something different from enforcement for recovery of arrears unpaid embodied by the main part of the court order.  There are different options of enforcement to compel compliance. Judgment summons procedure[6] are commonly used for recovery of unpaid sums of money and Section 12 of the MPPO was there to ensure that “stale arrears for over 12 months” was generally not recoverable unless with leave of the Court.  In appropriate cases, garnishee proceedings[7], charging order proceedings[8], committal proceedings[9] and even injunctive applications[10] may also be invoked as means of enforcement.  The choice of the option would of course depend upon the circumstances of the case and also the non-compliance or breach in question.

35.  In the case of K v K [2005] 1 HKC 303, Hartmann J (as he then was)  referred to Section 12 of the MPPO said :-

“9. S.12 gives statutory form to a long-standing practice, one inherited from the ecclesiastical courts, that, as a general rule, arrears of maintenance are not to be enforced (by whatever means)  if they have remained outstanding for more than 12 months : see, for example, Bernstein v. O’Neill [1989] 2 FLR 1 per Ewbank J.

10. As to the reason for the practice, in Russell v. Russell [1986] 1 FLR 465, Sir John Donaldson, Master of the Rolls, observed (at 473B)  that :

  “The philosophy underlying the rule must ….. have been that if  the complainant waited a year to seek enforcement of the order,  she did not need the money, or at least had managed well enough  without it, and the husband might reasonably regard the liability  as something which he could forget about.”

11. An applicant must therefore take reasonably timeous steps; that is,

within a year, to assert his or her right to maintenance unless there is good

reason otherwise. An applicant cannot simply let the arrears accumulate,

making do without them, until, with more than a year elapsed, perhaps an

oppressively large capital debt has arisen. Maintenance after all is invariably required for current needs and is an obligation which must be viewed within its social context.

12. Accordingly, in giving effect to s.12, our courts must proceed on

the general principle that ‘stale arrears’, as Sir John Donaldson described

them, are not to be enforced unless good reason is demonstrated or special

circumstances are shown.

13. What will constitute a good reason or give rise to special circumstances will, of course, depend on the facts of each case. No abstract rule can encompass all possibilities.

14. However, of relevance to the present case, there is authority that doing nothing for more than 12 months because the person liable to make

  payment is an irregular or reluctant payer will not constitute special circumstances : see Dickens v. Pattison [1985] FLR 610.”

36.  On a proper interpretation of Section 12 of the MPPO and the judgment in K v K (supra), and with the different mode of enforcement on matrimonial orders and on undertakings, W’s application for leave to enforce payment by H of arrears due more than 12 months as per paragraph 1 of her Enforcement Summons was misconceived and incorrectly brought.

37.  My decision echoed the strictness and coercive effect of undertakings given in due process of the law in that the scope of the undertakings must be clear, precise and specific.  It is trite that undertakings could never be imposed upon and could only be provided voluntarily and, once provided, could not be varied or modified.  Unless clearly stated otherwise, undertakings are meant to be continuous and to be complied with until discharge or release from compliance.

38.  On this topic of “undertakings”, it was once said in the unreported case of L v C, (FCMC No.5952 of 2012)  by Deputy District Judge Grace Chan (as she then was), which I respectfully agree, the following :-

“22. Based on all the above cases and doing the best I can, I shall summarise the applicable legal principles as follows :

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

(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: Kensington Housing Trust (supra)  and Mid Suffolk District Council (supra);

(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)  when the undertaking was obtained through fraud, misrepresentation or mistake (See: TLS nee J v RCS (supra));

(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.”

39.  For these reasons, I find W’s application for leave to enforce payment of arrears due more than 12 months under Section 12 of the MPPO was incorrectly brought under misapprehension of the statutory provisions and procedure on enforcement.  Accordingly, paragraph 1 of W’s Enforcement Summons must be dismissed.

Reliefs sought by W for non-compliance

40.  W also sought an Order that H do comply with the undertakings in question within 28 days from the date of the order being made[11]. W went on to prescribe in her Enforcement Summons the mode of compliance for H as follows :-

“….. by transferring the outstanding proceeds of sale in the sum of HK$358,329 and HK$1,361,989 or any amount thereof, by cash to the bank account of TWT at Hang Seng Bank Limited Account No.390- xxx682-882 and TTY at Hang Seng Bank Limited Account No.390- xxx708-882 respectively.”

41.  According to the marginal note of W’s Enforcement Summons, this part of the reliefs was sought under Order 45, rules 6(2)  and (3)  of the RHC.

42.  For the sake of completeness, the entire Order 45 rule (6)  was set out below :-

“6. Judgment, etc. requiring act to be done: order fixing time for doing it (O. 45, r. 6)

(1)  Notwithstanding that a judgment or order (emphasis added)  requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified therein.

(2)  Where, notwithstanding Order 42, rule 2(1), or by reason of Order 42, rule 2(2), a judgment or order (emphasis added)  requiring a person to do an act does not specify a time within which the act is to be done, the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein.

(3)  An application for an order under this rule must be made by summons and the summons must, notwithstanding anything in Order 65, rule 9, be served on the person required to do the act in question.”

43.  Clearly there is a pre-requisite for a judgment or order to be in place before Order 45 rule 6 could be invoked to compel performance of the act (as adjudged or ordered)  by either fixing the time or extending the time (if there was a time already specified)  for compliance.  This is different from a volunteered act of performance by way of an undertaking given to the court and to the other party in the proceedings.  

44.  In Roberts v Roberts [1990] 2 FLR 111, the English Court of Appeal remarked that it is important for parties in matrimonial disputes to appreciate that an undertaking has all the force of an injunction.  A breach of an undertaking amounts to contempt of court and is punishable by committal.  This was confirmed by a decision of this Court in CKF v LHL (Restoration of Injunctive summons/Committal proceedings)  [2016] HKFLR 492.

45.  Although the undertakings given in the CKF v LHL case was “in return for” the Court’s indulgence not to make injunctive orders[12], the consequences and sanction for non-compliance of undertakings are the same irrespective of the reason or purpose for which the undertakings were provided.

46.  For the former matrimonial home in question, there are clear and specific cross undertakings by H and W to each other in the preamble of the Consent Order as follows :-

W’s Undertakings

“AND UPON the undertaking and the acknowledgement of the Respondent as follows :-

(a)  She shall waive all her rights, title and beneficial interests of and in the Former Matrimonial Home registered in the joint names of the Petitioner and the Respondent at Sub-Section xxxx of Section E of Lot No. xxxx in Demarcation District 7, Hong Lok Yuen, Tai Po, New Territories, Hong Kong (i.e. No. x, x Street, Hong Lok Yuen, Tai Po, Hong Kong)(“the Former Matrimonial Home”)  and the sale proceeds thereof;

(b)  She shall give the Petitioner absolute discretion to conduct the sale of the Former Matrimonial Home; and

(c)  She shall within 3 days upon the request by the Petitioner, sign all the necessary papers relating to the sale of the Former Matrimonial Home.”  

H’s Undertakings

“AND UPON the undertaking of the Petitioner as follows :-

(a)  He shall be responsible to sell the Former Matrimonial Home as soon as practicable within 2 years after the issuance of Decree Absolute at the price and terms to be decided by the Petitioner solely and the proceeds of sale (after deduction of all necessary costs and expenses in relation to the sale, including but not limited to redemption money to the mortgagee bank, estate agent commission and legal costs)  shall be shared by the two children of the family, namely, TWT and TTY and the Petitioner in equal shares (emphasis added); and

(b)  He shall continue to pay the mortgage repayment of the Former Matrimonial Home until the same is sold.”

47.  In my decision, paragraph 2 of W’s Enforcement Summons brought under Order 45 Rule 6 of the RHC was incorrect and misconceived for the following reasons :-

(a)  There was no judgment or order imposed upon H[13] to make any payment within the terms of the Consent Order.  It was H himself who undertook to “share”, and he was not being “adjudged or ordered to pay”, the net proceeds of sale between himself and the 2 children equally.

(b)  Order 45 Rule 6 of the RHC only provides for fixing a time or extending the time (if there was already a time fixed)  to carry out or perform the act which was adjudged or ordered (emphasis added)  to be done.  It does not afford any right to a party to specify or dictate a mode of performance different from what the term or clause encapsulated.  In paragraph 2 of W’s Enforcement Summons, she specified and dictated the mode of performance to be by way of “transferring sum(s)  of money” into each of the children’s bank accounts individually.  This was different from “sharing” with the children together.

(c)  Putting W’s case to the highest, even if H had not or did not share the net proceeds of sale with the children (where there was no such finding), it could amount to breach or non-compliance of the undertakings that he had given and the correct remedy to compel compliance would be by way of committal proceedings[14] and not invoking Order 45 Rule 6 to “insert” a date and also specify the mode of performance to be by way of “payment(s)”.  W was trying to modify H’s undertakings to accord with her own wishes and preference which should not be allowed.  Given that it was H’s personal undertakings, even he himself could not modify or vary them had he wished to do so[15].

48.  For these reasons, I find W’s application for H to comply with his undertakings within 28 days by making direct payment(s)  to each of the 2 children individually was incorrectly brought.  Accordingly, paragraph 2 of W’s Enforcement Summons must be dismissed.

The terms of the Consent Order on ancillary reliefs

49.  Without going into the Consent Order (as amended)  in any great detail, suffice it is to say that upon and subject to all the acknowledgement(s)  and mutual undertaking(s)  contained in the preamble of the Consent Order, the body of the Court granted :

(a)  Joint custody of the child TTY to H and W, with care and control to H and reasonable access to W[16]. The elder child TWT was over the age of 18 at the time of the Consent Order;

(b)  Dismissal of the parties’ respective claims for ancillary reliefs against each other[17]; and

(c)  That the terms therein are full and final settlement of the parties’ respective rights under the relevant legislation[18].

50.  That said, there was no financial orders (emphasis added)  granted under Sections 4, 5 and 6 of the MPPO whereby payment was required from either H or W, whether towards the other or for the benefit of the two children.

Merits of W’s application “per se”

51.  Having reviewed and considered W’s Enforcement Summons and the related procedure on enforcement of undertakings, I would now deal with the merits of W’s application per se as to what W was actually complaining about and what H was actually contesting upon by referring to their respective cases and evidence.  

W’s case of complaint

52.  W in her 1^st Affirmation filed in support of the Enforcement Summons, apart from setting out the general background, produced 20 exhibits adding up to over 100 pages.  Those exhibits covered different areas the bulk of which are invoices and receipts for renovation of the 1^st and 2^nd Floor units, and also include some dialogue of conversation and WhatsApp messages exchanged with H over the years.  She also deposed that H has the ability to pay the amount(s)  that she was now seeking for the 2 children[19].

53.  More importantly, W gave some account of what had happened over the years since the Consent Order in 2008 and; in particular, the reasons for not taking enforcement action until some 12 years later in September 2020.

54.  At paragraph 30 of W’s 1^st Affirmation, she accepted that H had over the years been paying various expenses for the 2 children such as tuition fees of TWT in both Hong Kong and Canada, tuition fees of TTY in Hong Kong, monthly cash maintenance to both children, ad-hoc purchase of electronic gadgets such as I-phones and I-pads or home appliances.  However, W submitted that all those payments were only gratuitous payments which could not reasonably be said to be payments of the outstanding net proceeds of sale.  She never agreed to any of those gratuitous payments to be counted as payment for the said outstanding proceeds of sale of the former matrimonial home.

55.  W in her 2^nd Affirmation gave an account of H’s purchase of the whole block of House x in xxxx Villa, Fanling, New Territories as his residence at HK$7.20 million in August 2008 with assistance of mortgage.  A month later in September 2008, H also purchased another property in the same xxxx Villa for his mother at HK$2 million (without mortgage and by full payment).  This second property was then rented to his sister on a heavily discounted or nominal rental.  

56.  W then made some clarification on the amount which she worked out should be the net proceeds of sale by producing further exhibits where it showed that she had “double-counted” some renovation expenses.

57.  W’s Counsel Miss Karen Wong in her Supplemental Skeleton Submissions[20] sets out the issues to be resolved are :-

(a)  Whether H still owed the Outstanding Payment or any sum thereof to the Children under the Consent Order (Issue (a)).

(b)  If the answer to (a)  is in the affirmative, whether leave to enforce the Undertaking is required, and if so, whether leave should be granted (Issue (b)).

(c)  Whether H has shown why he should not be required to comply with the Undertaking upon being given a second chance (Issue (c)).

H’s case of opposition

58.  H’s case of opposition set forth in his Affirmation of Opposition could be summarised as follows :-

(a)  He had been solely maintaining the 2 children and providing for all their financial needs including substantial education costs over the years which he worked out in the region totalling around HK$6.6 million;

(b)  His financial contribution over the 2 children well exceeded and far more than the children’s respective shares of the net proceeds of sale of the former matrimonial home;

(c)  There was an agreement with W in around 2008 that his obligations under the terms of the undertakings would be discharged or complied with by his maintaining the 2 children’s expenses;

(d)  There was a further agreement with W in around 2017 that after paying another sum of HK$100,000 to the elder child and a sum of HK$50,000 to the younger child, his obligations under the terms of the undertakings would be fully discharged or complied with.

(e)  W’s present application was lodged belatedly until just 1 day before the 12-year limitation period expired.

(f)  The 2 children are now at the age of 34 and 32, all grown up and self-supporting, neither of them had filed any witness statement or affirmation to support W’s case of seeking recovery of those sums now claimed by her which need to be paid over to each of the children.

The Court’s Views

59.  Putting aside this Court’s finding and decision in the preceding paragraphs of this Judgment that W’s Enforcement Summons (both paragraphs 1 and 2 therein)  was incorrectly brought and must be dismissed, the merits of W’s application per se was also problematic if not mischievous.

60.  First, the reasons put forward by W for the delay in taking enforcement action was that she was misled by H over his financial situation and also that she did not want to upset H’s parents by suing H earlier for breach or non-compliance of his undertakings.  W accepted that the children had all along been living with and taken care of by H’s elderly parents.  H’s mother later passed away at the age of 84 in 2017.  H’s father was later admitted to an elderly home in 2019.

61.  The evidence produced by W to show she had demanded H for payment was some dialogue exchange via WhatsApp message on 15/6/2017 and other WhatsApp messages between 15/4/2019 and 24/9/2019.  W claimed that she had lost her mobile phone in 2016 and was therefore unable to produce other WhatsApp messages prior to 2016.

62.  On W’s position, although incorrectly taken by BKT on her behalf as has now been found by this Court, of seeking leave to enforce arrears due over 12 months under Section 12 of the MPPO, the burden is on her to prove exceptional and special circumstances had existed which accounted for her delay so that the Court should exercise its discretion to grant her leave to take enforcement action.

63.  On W’s case of being misled by H over his financial position, I find that W had failed to discharge her burden of proof for the Court to grant her leave to start with enforcement action in the present case.  At common law including in the family law context, a party seeking reliefs or remedies on the basis of being misled by the other party must show (a)  reliance on the facts represented where those “facts” turned out to be untrue and, (b)  having acted upon the misrepresented facts to his or her detriment (emphasis added).  The question then immediately arose was : What detriment had been caused to W in this case ?  The only detriment that W could possibly argue was that she had been misled to wait and refrain from taking enforcement action for about 4379 days (that is 365 x 12 years minus 1 day).

64.  I have 2 observations.

65.  First, the delay of 4379 days was extremely long which could only be justified in the most exceptional circumstances such as complete lost of contact of the other party. This was not the case here.  W’s case that she did not have much contact with H does not mean that H was uncontactable.  Quite to the contrary, there were numerous contact with H over the renovation expenses of the units purchased by him for the 2 children.  Moreover, there was no reason why W could not verify H’s financial position from the children over the years.

66.  As rightly submitted by H’s Counsel, W had not even produced any form of direct evidence, such as statements or affirmations, from any one of the 2 children for whom W was now saying that she was claiming for their benefit.  There was also no explanation from W for the wanting of such material evidence of the children to support her case.  W was not even able to meet the bare minimum of proving that H had not or did not “shared” the net proceeds of sale with the children by bringing in the children’s evidence to that effect.  

67.  W’s present claim of the 2 sums of money was based entirely upon her own mathematical calculation upon whatever invoices and receipts that she could retrieve without paying heed to the core issue of “sharing” encompassed by the terms of H’s undertakings. H’s submission was that W brought these proceedings after 12 years was out of her hatred against him rather than for any legitimate grounds or justifiable reasons.

68.  Secondly, I noticed that W in her evidence in Court once said that she had not sought any share of the net proceeds of sale or any ancillary reliefs for herself when agreeing to the Consent Order was because H had undertaken to share the net proceeds of sale with the children but H had now failed to do so.  In my decision, W’s submission of not seeking a share of the net proceeds of sale or ancillary reliefs for herself could not be treated as any kind of detriment. 

69.  As recited above[21], W herself had also given undertakings (in return for H’s undertakings)  that she would waive all her rights and interest in the former matrimonial home.  On these mutual and cross undertakings and subject to which, the parties’ respective rights over ancillary reliefs against the other are dismissed[22] and that this was to be a full and final settlement[23].

70.  Hence, W should not be allowed to go back from what she had undertaken for enabling her to now claim that she had acted to her detriment when agreeing to the Consent Order or in return of H’s undertakings.  To allow W to do so would amount to encouraging non-compliance of undertakings and also undermining the fundamental rule on finality of litigation.  

The Burden of Proof

71.  Needless to say, it was W who instigated these proceedings by the filing of her Enforcement Summons in an attempt to take enforcement action after 12 years had elapsed since the Consent Order was granted.

72.  Had leave ever been required by W to take enforcement action on the breach or non-compliance of undertakings by H (there was no such finding)  after 12 years, it was the applicant (that is, W)  who bears the burden of showing special and exceptional circumstances for leave to be granted before the enforcement action could be taken.  It was not for H against whom enforcement action was taken to show that leave should not be granted.

73.  That said, I noticed W’s Counsel Miss Karen Wong sets out 3 different issues which need to be resolved by this Court[24]. With respect, I disagree with all of them for the following reasons.  I will refer to the 3 issues by “Issue (a)”, “Issue (b)” and “Issue (c)”.

74.  Issue (a)  refers to whether H owed to the children the Outstanding Sum or part thereof.  This would only be a live issue had W been successful in her leave application for taking enforcement action provided that leave was required.  Further assuming leave was needed but could not be obtained by W, whether there was the Outstanding Sum or part there was neither here nor there and could never be an issue for determination.  Putting this as an issue that need to be resolved before determination of W’s leave application pre-supposed that leave had been granted. This is incorrect.

75.  Issue (b)  refers to whether leave to enforce the undertakings was required when Issue (a)  was found to be in the affirmative.  With respect, this is also incorrect. Whether leave was required or not required to enforce undertakings does not depend upon the existence or non-existence of the Outstanding Sum owed by H to the children.  Putting this as an issue that need to be resolved ignored the standard and prevalent procedure for enforcement of undertakings.

76.  Issue (c)  refers to whether H could show that he should not be required to comply with his undertakings given in the Consent Order.  Putting this as an issue that need to be resolved completely reversed the burden of proof for seeking leave to enforce arrears unpaid for over 12 months.  For the finding of this Court on the correct mode of enforcement in this case, this had never become an issue at all.

77.  W’s Counsel Miss Karen Wong in her Closing Submissions under the heading C1a. Legal Principles on Complying with a Court Order citing the case of Kao, Lee & Yip and Koo Hoi Yan (2009)  12 HKCFAR 830 on the general principles in relation to complying with a Court Order.  In the case it was held that there is a fundamental difference between an order which is uncertain and an order which, being certain in its meaning, leaves to the addressee a choice as to the manner of compliance.

78.  The Kao, Lee & Yip case is a Court of Final Appeal decision and is binding on this Court.  However, in the present case, the subject matter was compliance with undertakings as opposed to any court order directing an act to be performed or payment to be made.  It would be wrong for W’s Counsel to cite and rely upon such authority on the facts of this case.

Any Outstanding Sums need to be ascertained?

79.  Throughout the 3-day trial, considerable time and effort was spent on resolving figures and calculation over invoices and receipts of renovation costs spent back in 2008 for the 1^st and 2^nd Floor units.  There were also last-minute applications from W for amending the amount of the sums claimed and finally amended in the Enforcement Summons in respect of which H’s Counsel took serious issue over those last minute amendment application(s).  As a matter of fact, this had happened twice in June 2021 leading to the trial initially scheduled had to be vacated and re-fixed.  The second occasion happened in November on the very day of the adjourned trial leaving H with no time and chance to reply to the latest amended figures. 

80.  Given this Court’s decision against W both on her use of the Enforcement Summons (as amended)  for enforcement and also on the merits of her application per se, it transpired that all the time and expenses over mathematical calculation and re-calculation are unnecessary and wasted. 

81.  Having said, whether there was and if so, how much was outstanding had never been an issue for the purpose of W’s application which was also found to be unsuccessful.  Therefore, it was unnecessary for me to venture into the parties’ evidence and those voluminous documents of invoices and receipts which added up to close to 1000 pages adduced on the spending of renovation costs and materials some 12 years or so ago to come up with my finding of monetary sums.

82.  Finally, whether a period of delay is long or excessive is always fact-sensitive and that the Court has a wide and unfettered discretion to make its decision with the aim and objective to achieve justice and fairness in the case.  Having said, a period of delay of 12 years minus 1 day (that is, 4379 days)  is an exceptional long period of time for seeking enforcement in any form and from any perspective.

Decision

83.  For all the above reasons, I decided that W’s application and her Enforcement Summons must be dismissed.

Costs

84.  On the question of costs, I decided that it would only be fair and reasonable for H to have his costs of and incidental to W’s application and her Enforcement Summons, including all costs reserved (if any), to be taxed if not agreed.

85.  I also grant Certificate for Counsel.

Order

86.  I now grant the following Orders :-

(a)  W’s application for leave to enforce the Consent Order be dismissed;

(b)  W’s Enforcement Summons (as amended)  dated 5/9/2020 be dismissed;

(c)  W do pay to H all costs of and incidental to her application and her Enforcement Summons, including all costs reserved, to be taxed if not agreed.

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

88.  Last but not least, I wish to express my gratitude to Counsel and the legal teams for their valuable assistance to this Court.