C, KT v. G, T

FCMC 16278/2018

[2024] HKFC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 16278 OF 2018

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J U D G M E N T
( Leave to Appeal )
(Paper Disposal)

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1.  On 1 February 2024, The applicant (“A”), which is the Petitioner husband of this divorce submitted the following documents:

A.  Summons dated 1 February 2024 (“Summons”)

Which seeks to appeal an order dated on 5 June 2020 (“June 2020 Order”)

B.  Draft Grounds of Appeal

Which starts with A seeking to “Vary Cost Order Nisi” on numerous costs orders, based on “improper service and that the Respondent (“wife” / “W”) did not make a full and frank disclosure to court of all material matters when making an Ex parte application for substituted service. A quotes eight costs orders, after which he then says:

“As most of these Order Nisi are issued on an indemnity basis and the fact that the Respondent failed to deliver any summons whilst being in communication with the Petitioners legal representative or the Petitioner and has presented two Notice to Act in person with a different signature and failed to comply with 1b of the substitutes service order, I kindly ask the Court to vary the costs to the aforementioned Order Nisi to No order as to Costs.”

C.  A 6 page submission dated 31 January 2021

D.  An affirmation dated 1 February 2021

2.  A acts in person, there are a number of irregularities on his application.

3.  A calls this a variation of costs order nisi, but instead of following the O.42 r5B(6) RHC, he has chosen to follow to a large extent procedures to apply for leave to appeal.

4.  The draft grounds of appeal do not give much details on the basis upon which A is relying on as to how he is challenging the June 2020 Order which he seeks to appeal in the Summons.

5.  While citing all the Costs orders in his draft grounds of appeal, his complaint was that the Summons were not served on him. These Orders encompass, inter alia, issues of relocation, MPS, custody and ancillary relief. One would have thought if he did not receive these Summons, he might also be objecting to the decisions made, not just the Costs Orders.

6.  There is no application for extension of time for appeal.

7.  His affidavit, which is supposed to be limited only to the reasons for any delay in support of an extension of time, goes well beyond this scope. Technically I should not be taking into consideration other contents in the affidavit which is not to do with any reasons for delay, but to afford some fairness to A’s application, I shall reference these contents.

8.  His submission should be limited to 5 pages.

9.  A’s affidavit of service was filed on 7 February 2024, instead of 3 days in accordance with proper procedures.

10.  The memo from the Family Court on “New Arrangement for Application for Leave to Appeal in the Family Court” (the “New Arrangement procedures”) states in paragraph 6 therein that failure to comply with the procedures runs the risk of having an application struck out and dismissed on the ground of failure to prosecute the application with due diligence. As can be seen from above, A’s paperwork in his application digress from the proper procedures.

H’s Summons for submitting further affidavit

11.  On 29 May 2024, A applied to submit a further affidavit stating that he wishes to include detailed correspondences between the W’s and his legal representatives during the ex-parte application for substitute service.

12.  This was heard on 19 June 2024. W submitted that he must have been in possession of these correspondences since May 2020 and he failed to produce them with his application. His application was summarily dismissed.

H’s Notice to act in person (the “Notice”)

13.  Reference must first be made to this document dated 11 May 2020. Before this, A was represented by the law firm Withers. The document on the court file is apparently signed, and says A intends to act in person in place of Messrs Withers and that his address for service is Flat C, 8/F, Block 1, Axxxx Cxxxx, Hong Kong (“8C address”). There is also an icloud email address.

H’s case

14.  A says that he never received any summons or documents. That W is aware of his address at 23D, Block 1, Axxxx Cxxxx (“23D Address”), and that he is “no longer at the 8C address”. He says throughout the period spanning 2018-2013, he has conducted his legal affairs through his German legal counsel and that they have not received any summons in this case.

15.  A then says that the email address has been disabled in early 2020.

16.  In A’s submission, he says he “vehemently refutes any acknowledgement of having signed a Notice to Act in Person with 8C as the designated service address”.

17.  He also says that there were two Notices to Act in person presented by the W’s lawyers and the Court, both dated 11 May 2020 but have “different signatures and handwriting for the date and month. He says the copy presented by the W’s lawyers contains a digital copy of his signature, and he “contest the authenticity of the digital representation of his signature” affixed therein.

Opposition from the Wife

18.  The W’s legal representation cited the irregularities, and also the fact that A did not serve on her the New Arrangement procedures per paragraph 5 therein.

19.  On 1 March 2024, W applied for a time extension to file her affidavit in opposition and skeleton submission on the basis that W lives overseas and legal aid approval is required, I granted this on 9 April 2024 giving an extended deadline to 7 May 2024. W’s 18^th Affidavit and submission were filed ahead of the deadline on 29 April 2024.

20.  In brief, her contentions are as follows

a.  That the eight orders quoted by A are wrong.

b.  A’s application is 3 years 7 months out of time in respect of the June 2020 Order, and for the other orders between 2 - 4 years out of time. A has not asked for leave to appeal out of time.

c.  The reason put forward by A that he did not receive any Court orders or summons until October 2023 was unfounded. Service was proper based on the address he provides in the Notice.

d.  His allegation that the Notice dated 11 May 2020 was not signed by him was not supported by proper detailed allegation against Withers, the firm that represented him.

21.  W says that A has continuously failed to engage in these proceedings after the Notice was filed, up until the taxation hearing in late 2023.

22.  The following are the eight orders cited by A in his draft grounds of appeal, the far-right column is what W says should be the proper reference for the dates of the Order. Having checked the record, W’s dates are correct.

Order ref no.	Order dated	Costs order made	Proper reference according to W
1	22 June 2020 §4c	Costs on indemnity basis	Order dated 17 November 2020
2	4 August 2020 §7	Costs Order Nisi, to be paid forthwith and made absolute in 14 days	Order dated 23 July 2020
3	22 June 2020 §3	Costs Order nisi on indemnity basis to be made absolute in 28 days	Unclear which Order A is referring to
4	16 March 2021 §3	Costs Order nisi on indemnity basis to be made absolute in 28 days	Order dated 25 February 2021
5	20 May 2020 §2	Costs Order nisi that there be No Order as to Costs to be made absolute in 14 days	Order dated 16 March 2020
6	8 September 2021 §4	Costs on indemnity basis	Order dated 27 August 2021
7	16 September 2021 §3	Costs, party and party basis, to be paid forthwith	Order dated 6 September 2021
8	20 December 2021 §3	Cost Order Nisi on indemnity basis to be made absolute in 28 days	Amended Order dated 25 February 2021 refiled on 20 December 2021

23.  Regarding the Order dated 22 June 2020 (ref no 3), there was no such Order as quoted by A. I sought to clarify it on the day of the time extension hearing and directed the parties to inform the Court by joint correspondence to state which Order A was referencing. I was subsequently informed by W’s legal representation that A conceded that this Order was a mistake.

A's delay

24.  For principles regarding application for leave to appeal out of time, W quotes the case of Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 which was followed by Birkenhead Properties & Investments Ltd v Leung Yiu & Ors [1998] 1 HKLRD 257. The following factors need to be considered:

a.  Length of delay

b.  Reasons for delay

c.  Prospects of success

d.  Extent of prejudice that would be caused to the other party if leave is granted

25.  As for time of delay, I shall adopt the timetable in W’s skeleton submission as to the periods of time lapse in question.

	Date of the Order	Expiry date of the prescribed period	Number of days since expiry date
1	17 November 2020	1 December 2020 (14 days)	1,157
2	23 July 2020	6 August 2020 (14 days)	1,274
3	It is unclear what Order is being referred to by P	_	_
4	25 February 2021	11 March 2021 (14 days)	1,057
5	16 March 2020	30 March 2020 (14 days)	1,403
6	27 August 2021	24 September 2021 (28 days)	860
7	6 September 2021	20 September 2021 (14 days)	864
8	Amended on 20 December 2021	3 January 2022 (14 days)	754

26.  These delays have been excessive; and H’s reasons for delay in his affidavit are namely:

a.  He did not receive them until 10 October 2023

b.  Since that date the time he spent in Hong Kong has been less than 30 days

c.  That he is a full-time father to two young children and therefore he has no time and energy to review and research the court documents

d.  He contracted covid in November 2023

27.  W’s case is also that the Summons and Orders were served at the proper address provided by him in the Notice.

28.  W also says H took a long time to take out his application. The time lapse from the date A says he first received them in October 2023 to his application is more than 3 ½ months.

29.  In my view, the reasons A gave for his delay shows a clear delinquency on his part in pursuing his application. A has clearly caused much grievances in his failure to participate in these proceedings already; at the eve of this coming to the end, A decided to take out this application. To allow this would cause enormous injustice to W as no doubt she should rightly be expecting some finality of proceedings; to re-open all these costs arguments would mean further delay.

30.  As to prospect of success, W says that the issue of service address has been dealt with in the taxation proceedings and decided in W’s favour. A has no basis to argue that the service address was wrong. I shall deal with this below.

Service Address

31.  W relies on findings in the taxation proceedings of this matter that proper services have been made.

32.  At the taxation hearing in November 2023, A said that he did not receive the Notice of Commencement of Taxation. A filed an application for leave to file his List of Objection which resulted in a hearing on 1 February before Master N Mak, the following observations (extracted from W’s 18^th Affidavit), made by Master Mak are relevant:

a.  The he has examined the Notice to Act in person in Court and that it was physically signed, not signed digitally.

b.  That in a letter from Withers on 11 May 2020, it was stated that if A does not file the original Notice to act in person or bring the original back to Withers, then they will seek application from the Court to be removed. As this application did not take place, then Withers must have obtained the original from A.

c.  That A never gave a date on when he allegedly moved out of the 8C address.

d.  Order 65 r5(2) quoted by A does not apply and is irrelevant because he did provide for an address for service in his Notice to Act in person.

33.  A sought to appeal Master Mak’s decision which was heard by DDJ G Lam on 22 February 2024. A’s Appeal was dismissed and in his written decision on 23 February 2024, DDJ G Lam states that the issue of service has been dealt with by Master Mak.

34.  I accept and adopt these findings made by Master Mak, which was confirmed by DDJ G Lam.

35.  Therefore, despite the repeated assertions by A that W should know that 8D is no longer A’s current address, that is not the point. W has rightly relied on the service address provided by A in the Notice. W has also exhibited in her 18^th Affidavit four affidavits from two partners at W’s representing law firm which attested to the service of a number of documents including inter alia, the relevant Orders, Summons, Affidavits, Answers and Cross Petition, and hearing bundles to the 8C address since A started to act in person, none of these have been returned.

36.  The 8C address remains on court record until A filed a notice of change of address on 7 February 2024 to the 23D address.

Notice of Intention to Act in Person

37.  W argues that A did not in his Affidavit says he did not sign the Notice, just that he contests the authenticity of the digital representation of his signature. But then in his submission this becomes a denial that he signed the Notice with 8C as the designated service address.

38.  A never gave any more details as to what transpired around the Notices and when this document was filed. The W’s version of event is in her 17^th Affidavit filed on 29 December 2023. She says while there were two versions of the Notice, one that was faxed to her from Withers on 11^th May and one that was filed with the Court on 12^th, both bear A’s signature, which is the same signature A appends to his affidavits. Apparently, it was Withers who filed the Notice in Court, and W was served with the copy filed with the Court. W’s 18^th Affidavit quite rightly suggests that the consequence of A’s denial means that he is accusing Withers of forging his signature and presenting a false document to the Court, which is a very serious allegation. But A did not say this, and it appears that no action was taken by A against Withers.

39.  I do not accept H’s claim regarding the Notice.

The Order in the Summons for Leave to Appeal

40.  H appealed the June 2020 Order in his Summons, this is an Order for substituted service, which was W’s application for Service of the 12 May 2020 Order with penal notice to be made by prepaid post to the 8C address after unsuccessful attempts at personal service. The June 2020 Order was granted by DDJ D To giving permission to serve by prepaid post and whatsapp message.

41.  This was an ex parte application and A says there has been non-disclosure. He complains that there was no mention of the 23D address or communication between her legal team and the A’s German legal counsel; and that W has failed to apprise the court of material change in circumstances following the granting of the Order, specifically that W served documents to 23D and there was direct engagement with A.

42.  On this latter points raised by A, he has proffered no evidence to support his contention; therefore I do not accept his argument of any non-disclosure on W’s part.

43.  In any event, the execution of the June 2020 Order was done and dusted, and subsequent service of documents was not done pursuant to this Order.

The Applicable Legal Principles

44.  The appropriate test when seeking leave to appeal is set out at s.63A of the District Court Ordinance (Cap. 336), which states that either the appeal must have a reasonable prospect of success or that there is some other reason in the interest of justice why the appeal should be heard.

45.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. The case of SMSE v KL [2009] 4 HKLRD 125, elaborated as follows:

“…. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

Reasonable Prospect of Success

46.  I find that the A has taken out his application after substantial delay, none of which explanation was justified or acceptable. On this point alone, his application could be dismissed.

47.  His application could also be dismissed on his non-compliance with the New Arrangement procedures.

48.  I find A’s denial regarding the Notice to be unsupported. I therefore find that service to the 8C address is proper service, this address was rightly relied on by W.

49.  In consequence, I conclude that A’s application has no reasonable prospect of success on appeal; nor did he raise any ground of appeal involving any interests of justice which merits the intervention of the Court of Appeal. His application is therefore dismissed.

50.  I also find that A’s continuous pursuit of this application even after Master Mak’s finding on the service address followed by DDJ G Lam decision, to be an abuse of process. His main argument underpinning this application has been found against him by 23 February 2024 and yet he repeats the same argument here about not receiving documents in this application. Such litigation conduct must bear consequences.

Costs of this Application

51.  I see no reason why costs should not follow the event, I therefore award costs of and incidental to this leave to appeal application to the Respondent W on an indemnity basis. The Respondent’s own costs be taxed in accordance with Legal Aid Regulations. This to be a Costs Order Nisi to be made absolute from 14 days hereof.