SS v. TMW also known as CT

FCMC 15456 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 15456 OF 2015

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J U D G M E N T
(Maintenance Pending Suit, Interim Maintenance and Litigation funding)

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Introduction

1.  This is an application by a Petitioner wife for maintenance pending suit for herself and interim maintenance for the two children of the family, who are now aged 18 years and nearly 17 years old respectively. The wife also seeks litigation funding and back payment of all of these amounts to the date of her petition pursuant to sections 3 and 5 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO). In her summons dated the 16 May 2017 she further particularizes her claim as follows:

1.  The Respondent do pay or cause to be paid to the Petitioner as from 3 December 2015 in the sum of HK$66,990 per month as maintenance pending suit for the Petitioner and interim maintenance for the benefit of the children of the family, namely, A, a girl born on XX September 1999 and I, a girl born on XX November 2000 (“children of the family”); credit to be given for sums paid since 3 December 2015; such payment to be made by direct credit into the Petitioner’s HSBC Advance account no. XXX-XXXXXX-XXX on 1 Jun 2017 and thereafter payable monthly on the first day of each consecutive month until further Order.

2.  The Respondent do pay or cause to be paid to the Petitioner as from 3 December 2015 the sum of HK$25,000 per month as contribution towards the Petitioner’s legal fees or such other sum as may be just; such payment to be made by direct credit into the Petitioner’s HSBC Advance account no. XXX-XXXXXX-XXX on 1 Jun 2017 and thereafter payable monthly on the first day of each consecutive month until further Order.

Brief background

2.  The parties met in Hong Kong in or about 1998 and married on the XX June 1999 in Vancouver, Canada. The wife, who is Japanese, was a flight attendant working for a well-known airline in Hong Kong and the husband was a Hong Kong Chinese businessman. The parties had two children, both girls, the first of whom was born shortly after the marriage and the second just over a year later. It seems that the marriage was not a happy one and that the parties’ sexual relationship did not recommence after the birth of the second child. On the wife’s case the parties had a distant relationship and the husband spent long periods of time away from both the matrimonial home and indeed Hong Kong. It does not appear to be in dispute that the husband formed another relationship outside of the marriage and that he has a third child who currently resides in Canada with his or her mother. That relationship has also faltered and has been the subject of additional litigation in Canada.

3.  It is the mother’s case that it was always the intention of the parties that the girls should be educated overseas prior to commencing their university education. She says that there was a family meeting sometime in 2014 where the issue was discussed. The elder daughter, A expressed a wish to study in the United Kingdom at that time, but the father asked her to look to Canada instead. Consequently, A researched into the matter and found a boarding school in Niagara, Canada. She made an application and eventually she was admitted to the school in August 2016. I followed in January 2017. A now has one year left of High School to complete and I has another two years to go.

4.  It is the husband’s case that he did not explicitly agree to the girls attending boarding school in Niagara and initially he suggested during these proceedings that they live with him in Canada and attend public school there. Unfortunately, the relationship between the daughters and their father is quite strained and there is little communication between them. It is the wife’s case that they last saw each other at the paternal Grandfather’s funeral in 2016. In any event the husband has refused to pay for the children’s school fees or related expenses.

5.  In March 2014 the husband suffered serious injury when he fell from a roof top in Yuen Long. He continues to receive ongoing therapy and other medical treatment and has continued difficulty with his jaw and with eating and speaking.

6.  On the 3 December 2015 the wife filed proceedings for divorce based on the husband’s unreasonable behaviour. Service of the proceedings proved difficult and the husband then sought to defend the same. Thankfully common sense intervened and the decree nisi was pronounced on the 27 July 2016. This was followed by an agreement on the girls and on the 19 May 2017 the parties agreed joint custody with care and control to the wife and reasonable access to the husband.

7.  There have also been injunctive proceedings in relation to a property in Canada and I was told at this hearing that that matter has also been resolved. On the 29 September 2017 an order was made by consent as requested by both sides in relation to the same.

8.  Unfortunately, there has not been similar progress with respect to final ancillary relief. The wife accuses the husband of deliberate and wilful non-disclosure. It is of note that the husband did not file his affirmation in response to the wife’s affidavit, although a draft of the same was attached to his solicitor’s affirmation of the 5 September 2017. Answers to Requests for Further Better Particulars have not been provided as ordered. Attempts at mediation have not been fruitful and the filing of relevant documentation generally has been slow. Similarly, the husband accuses the wife of non-disclosure on her part, something that she denies.                  

The issues

9.  In summary then the issues are:

a)      How much maintenance should the husband pay to the wife as maintenance pending suit?

b)      How much maintenance should the husband pay to the wife as interim maintenance for the two children of the family?

c)      Is this a case where litigation funding can be ordered? If so in what amount and for what duration?

d)      Should the maintenance and litigation funding be backdated?

The law - Maintenance pending suit, interim maintenance and litigation funding

10.  The law is well known and not in dispute – the ordinance states that the only governing principle when considering maintenance pending suit and interim maintenance applications generally is that the court shall make such order as it considers reasonable in all the circumstances of the case.  (See sections 3 and 5 Matrimonial Proceedings and Property Ordinance Cap 192).  Consequently, applications such as these are supposed to be approached on a broad-brush basis. 

11.  As Rayden points out the court is also charged, notwithstanding the fact that it is generally speaking not possible to make any findings of fact so early on in the proceedings, to try to look at the reality of the situation:

In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure.  However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.  The court can look at the reality of the situation …… Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there are every opportunity to do fairness by set off ……” (See paragraphs 16.18 of Rayden, 18^th edition).

12.  In addition, the court can also rely on the availability of loans when making an order for maintenance pending suit/interim maintenance see for example paragraph 3.92 of Jackson’s Matrimonial Finance 9^th edition where it states as follows:

When a party applies for an order for maintenance pending suit or for periodical payments, it is not a complete answer to the claim for the potential payer to say: ‘I have no income and no assets’.  In one case, a husband with a very small income (in three successive years it was £42, £69, £60) who asserted that he was ‘living on borrowed money and staving off a number of creditors while he [was] developing certain properties’, was nevertheless shown to have maintained by means of bank loans a consistent standard of living over a substantial period: the court in effect held that if he could borrow for himself he must likewise borrow for his wife.  The principle was that he was able to touch resources from which payments could be made; he had the ability to obtain the necessary money, albeit bank loans, and it was assumed that his ventures were such as not only to justify the loans but also reasonably to contemplate their repayment in due course ….

With respect I agree.

13.  Further reference should also be made to the Court of Appeal case namely 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.

Litigation funding

14.  In so far as the law on litigation funding is concerned, it has been accepted by both sides that the governing authority remains Currey v Currey [2006] EWCA Civ 1338. The test to be applied is as follows:

(1)  That the applicant spouse has no assets, or none that can reasonably be deployed.

(2)  That she [he] can provide no security for borrowing, or none which can reasonably be offered.

(3)  That she [he] cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)  That she [he] cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’

15.  There is also a requirement to undertake an overarching enquiry to see whether the Applicant can in truth procure legal advice and representation by any other means. The court is also charged with looking at the subject matter of the proceedings and the reasonableness of the stance taken by the husband. 

What then is the “reality of the situation?

16.  In this case it is clear that the wife works as a senior purser with a well-known airline in Hong Kong. I accept that on average she earns in the region of HK$35,000 per month and that her take home pay can vary from month to month depending on a number of external factors. This figure also accords with her salary as stated in her tax demand. She continues to live in the former matrimonial home. This is a reasonably large three bedroomed apartment in Midlevel’s that is owned by the husband’s family. Consequently, the wife is not required to pay rent, not does she have a mortgage. That much is clear. Unfortunately, the husband’s position is less than clear. He states that after graduation he was mainly engaged in the family business of land or property development and that he also ran a film studio. He says that both he and his brothers “borrowed” funds from his father to make ends meet. Given that he was working in the family business this of itself seems somewhat unlikely. Sadly, the paternal Grandfather passed away in early 2016. Consequently, the husband says that this financial resource is no longer available to him. He says that he is heavily in debt, but he has not provided full disclosure in relation to the alleged loans. He has also failed to provide full and frank disclosure in his Answers generally. In particular, he has failed to provide further information about his potential inheritance. In conclusion counsel for the wife states as follows in his written submissions:          

53. W should not forced to resort to guesswork to uncover the extent of H’s holdings and his overall financial position, in substitution of what should be presented simply and clearly by the Respondent.  This is a classic case of a party who is reluctant to provide information to the Court about his present income and his present and anticipated asset position.  The only logical explanation and one the Court is asked to accept is the most common one seen in such cases: that full disclosure would reveal a far healthier financial position than the one the Respondent is at pains to present.

With respect I tend to agree.

17.  The husband has always historically paid the wife the sum of HK$15,000 per month. The wife says that this was to cover her own expenses. In addition, the wife says that the husband historically paid for all of the family expenditure, including at one time the cost of two domestic helpers, a driver, the costs associated with the running of the family car, utility expenses, clubs and for all of the children’s direct expenses.

18.  The husband now says that he can only afford to continue to pay the wife HK$15,000 per month plus any household expenses excluding the domestic helper (although this has not been specifically itemized) and that together with her income of HK$35,000 per month plus the free accommodation, that this should be sufficient. He makes no offer with respect to the children’s expenses.

19.  The wife has kept a full record of her expenditure from December 2015, when the petition was issued to July 2017 and based on this her solicitors wrote to the husband’s solicitors to seek some form of reimbursement. She describes this in both her 3^rd and 4^th affirmations. She sought the sum of HK$1,022,439.22 and produced over 400 pages of receipts in support of her claim. In a quite extraordinary response the husband offered her HK$70,000 only and said that he did not wish to go through the “hassle” of checking the receipts in what would have been a “tedious” exercise. It seems to me that this response was both rude and off hand and did little to assist the litigation process.

20.  It is against this background that I was invited to look at some of the husband’s credit card statements. The husband has not produced a full set; however, what has been produced makes for quite interesting reading and does not support his claim that he is presently impecunious.

21.  American Express credit card statements for January and February 2017 show that the husband paid almost HK$600,000 on watches alone. The watches were not disclosed in his Form E. Of more interest was the fact that the husband appears to have paid off his Amex bill in total during the month. The April statement shows huge sums being paid off. I asked to be taken to the corresponding payments from his bank statements. None could be provided. Similarly, the Citibank credit card statement shows significant credits some of which appear to be tax refunds from Germany. All in all, this snap shot is not indicative of a man who is struggling financially, or one who cannot afford to pay more than HK$15,000 per month or to properly support his daughters financially.               

How much maintenance should the husband pay to the wife as maintenance pending suit?

22.  The wife has set out a schedule of expenses in her Form E and affirmations as follows:

MPS/IM Budget

	Form E	MPS 1st Affirmation	Respondent’s Offer
Household Expenses
Expenses
Tax
Utilities	1,400	1,400
Food	10,000	5,000
Household Expenses	1,500	1,500
Domestic Helper	4,120	2,720
Dogs	1,000	1,000
	18,020	11,620	Nil
Personal Expenses SS
Meals	3,000	3,000
Transport	2,000	2,000
Clothing/Shoes	5,000	2,500
Personal Grooming	3,000	1,500
Entertainment	2,000	2,000
Holiday	1,500	1,500
Medical/Dental	1,000	1,000
Tax	2,000	3,850
Insurance	500	500
Contribution to parents	3,000
Study	15,000
Legal expenses		25,000
	38,000	42,850	15,000
Children
School Fees	0	40,490
Extra tuition	1,400
School Books	400
Transport	1,600
Medical/Dental	600
ECAs	200
Entertainment/	1,000
Holidays	4,000	5,180
Clothing/Shoes	2,000	1,514
Lunches and Pocket Money	1,000	2,000
Other transport	1,200
Uniform	200
Other – contact lenses	1,200
	14,800	49,184	Nil
Total Expenses	70,820	105,054	15,000

Total (per figures in bold)

HK$91,904

She has reduced some of her original claim to reflect the fact that the children are both away at boarding school. I agree that she needs a domestic helper given that she has pets and a household to run notwithstanding the fact that she is working full time. Thus I accept her that her estimate of household expenses should include HK$4,120 for a domestic helper and HK$5,000 for food say HK$13,020 in total. In addition, I accept her updated figure for her own expenses (less the contribution for legal costs) in the sum of HK$17,850 per month. This totals HK$30,870 per month. She also says that she has debts and that in addition she is paying off a personal loan and other amounts on a monthly basis. Her loan repayments are said to be just under HK$9,000 per month. I also accept that her general household expenses will go up when the girls are in Hong Kong. All in all, then I accept, on a broad brush basis, that the wife needs maintenance of HK$15,000 per month to cover the household expenses and her own expenses including the loan repayments.     

How much maintenance should the husband pay to the wife as interim maintenance for the two children of the family?

23.  Whilst there is clearly a dispute about whether or not the husband consented to the children attending boarding school in Canada, I am nevertheless inclined to accept the wife’s version of events. It seems to me that there was probably an agreement in principle that the children attend boarding school in Canada and that the husband changed his mind once the divorce proceedings were issued. It is clear that the mother cannot afford to pay this sum. On the face of the evidence currently before me it seems very likely that the husband does have the financial resources available to fully support the daughters.

24.  There was some confusion during the hearing about the actual cost of the boarding school. The figures gleaned from the school statements supported the figure of CAD41,675 per annum per child or approximately HK$260,000 per annum per child. This is slightly more than the figure of HK$40,490 per month sought by the wife. Consequently, I will allow the sum of HK$20,250 per month per child plus an additional HK$4,750 per month for all other expenses or HK$25,000 per month per child.        

Should these sums be backdated?

25.  The wife seeks backdating to December 2015, a period of 21 months as at the date of the hearing, credit to be given for sums already paid to her by the husband. It does not appear to be disputed that the husband has all along paid HK$15,000 per month, although sometimes the payment was spasmodic, with cheques sometimes being paid twice in a month and on other occasions none being paid at all. With that in mind it does not seem to me that it would be appropriate to order any backdating of the HK$15,000.

26.  The wife says that she has used up all of her savings and borrowed other monies in order to be able to pay for the boarding school fees and other expenses. I accept that to be the case. I have also taken on board the dates when the girls each began boarding school. Thus I will order the maintenance for the elder child A to be backdated to August 2016 and for I to be backdated to January 2017.  

Is this a case where litigation funding can be ordered? If so in what amount and for what duration?    

The Currey test

(1)   That the applicant spouse has no assets, or none that can reasonably be deployed.

(2)  That she [he] can provide no security for borrowing, or none which can reasonably be offered.

(3)  That she [he] cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)  That she [he] cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’

27.  I accept that the wife has no assets and none that in any event can be reasonably be deployed for the provision of litigation funding. I also accept that she can provide no security for borrowings and there is nothing to suggest that her lawyers would be willing to act for her on the basis proposed in (3). Given that she is currently employed it also seems to me unlikely that she would be eligible for legal aid. In such circumstances it seems to me that the wife is entitled to litigation funding. I accept her proposal of HK$25,000 per month, which seems fairly minimal in the circumstances. Consequently, the husband shall pay the sum of HK$25,000 per month such sum to be paid directly to the wife’s solicitors and to be backdated to December 2015. It is of note that her costs to date are just over HK$1 million and that this backdated amount is still less than half of that sum. It is also less than the husband paid for watches in January/February 2017. The husband’s Form H also states that he has paid nearly HK$1.8 million in legal costs so far. The sum of HK$25,000 per month shall be paid up until the Financial Dispute Resolution hearing whereupon the matter shall be considered again.

Costs

28.  Given that the wife had no alternative but to make this application I will make an order nisi to be made absolute in 14 days’ time that the husband do pay the costs of and occasioned by the wife’s application, such costs to be taxed on a party and party basis if not agreed. There shall be certificate for counsel.                                            

29.  There shall be a First Appointment hearing on the 18 January 2018 at 9:30 a.m. Both parties do personally attend that hearing.