Matrimonial Causes1983

SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON AND ANOTHER

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CACV74/1985SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON

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40116-EN-1985-04-23

SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON

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HCMC000019D/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

ACTION NO. 19 OF 1983

_______

BETWEEN

SUSAN ELIZABETH HORTON

Petitioner

and

GERARD FRANCIS HORTON

Resnondent

__________

Coram: Deputy Judge Barnett

Date of Judgment: 23rd April 1985

____________

Ruling on Costs

____________

1. On 4th May 1984, Power J. made an Order by consent which contained, inter alia, an undertaking by the Respondent which went thus:

"(g)

Within 28 days from the date hereof to undergo a medical examination to enable the Petitioner, at her own expense, to insure his life provided that the Respondent shall not be liable in any event howsoever for any non-disclosure, partial disclosure or mistaken statement or otherwise during or in connection with such medical examination."

2. The object of the undertaking was to provide the Petitioner with a measure of security for the 3rd and 4th of 4 payments comprising a lump sum. As the Petitioner saw it, the undertaking required the Respondent to be examined physically; to provide all information sought by the proposed insurers and their doctor including the names and addresses of any doctors who were or had been treating him; and to authorise those doctors to disclose to the insurers or their doctor any information which might be sought.

3. The Respondent refused to disclose the names and addresses of his doctors, and to authorise them to disclose information. The insurers declined life cover. Accordingly the Petitioner took out a summons on 31st May 1984 asking the court to give the Respondent directions as to how he should comply with his undertaking. In effect, construction of the undertaking was in issue.

4. The summons finally came on before me on 26th November when, in the course of a 2 day hearing, I adjourned the summons at the request of the Petitioner, because the Respondent had filed 2 late affidavits, with costs reserved; and dismissed with costs the Petitioner's application to cross-examine the Respondent.

5. The summons was restored before me on 15th April 1985. On the 3rd morning, Mr. Mills-Owens turned to the question of confidentiality. I observed that I thought it correct to say that, apart from the proposed insurers and their doctor, no one including the Petitioner would be entitled to information disclosed by the Respondent's doctors for the purpose of life cover unless expressly authorised by the Respondent. Mr. Rodway, for the Petitioner, accepted that statement. As a result, a number of directions were then agreed. I made a consent order the following afternoon, leaving the matter of costs for argument.

6. Mr. Rodway seeks the costs of the whole application because the Respondent:

(i)		failed to comply with his undertaking;
(ii)		never made clear his stand on the matter of confidentiality until the 3rd day of the hearing; and
(iii)		has behaved badly towards the Petitioner's advisers. For the purpose of this decision I will accept that:
(a)		the undertaking means that for which the Petitioner contends;
(b)		the details of doctors apart, the Respondent did not complete the original insurance proposal form as satisfactorily as he might have done; and
(c)		the Blue Cross incident was one of triviality.

7. The fact remains, however, that the Respondent was concerned about the confidentiality of information which might be given by his doctors to the proposed insurers or their doctor. He was, as we have now seen, entitled to that confidentiality. His stand was first made abundantly clear in a telephone call between his solicitor, Mr. Charles and Mr. Goulston the Petitioner's solicitor (see Ex. RDG1) on 15th May 1984. Further phone calls and correspondence followed as a result of which it was agreed that the consent to the disclosure of medical information would be deleted from the proposal form.

8. In parenthesis, the dispute as to whether or not this agreement was provisional was.quite clearly no more than a misunderstanding, albeit an unhappy one, of the type that commonly occurs in telephone conversations.

9. Because of what the Respondent did disclose in the proposal form, the proposed insurers made it clear that details of the Respondent's doctors would be necessary and that any further action, including the medical examination would be pointless. Nonetheless the Respondent attended the medical examination and, details of doctors apart, appears to have cooperated fully.

10. On the evidence, I am satisfied that the insurers declined to consider the proposal because the Respondent would not give details of his doctors and authorise them to disclose information to the insurers. Mr. Rodway suggests there may have been additional reasons. But that is speculation. It would not have been difficult to have led evidence from the insurers.

11. On 29th June 1984 the Respondent's solicitors wrote to the Petitioner's solicitors with an offer that the Respondent would provide the required information if the Petitioner and her 2 daughters would covenant by deed not to obtain, use or try to obtain or use any information disclosed to the insurers by the Respondent's doctors. The summons should be withdrawn with no order as to costs. The offer was open to 3rd July.

12. The offer was rejected by letter of 6th July because the Petitioner and her solicitors could not see why the Petitioner should bind herself not to impart the information to other parties, although it would be done responsibly. The Petitioner had in mind that the daughters might need to sue for maintenance and, if the Respondent pleaded inability to pay on health grounds, the information might assist in establishing the true state of the Respondent's health. The Petitioner also thought she should have her costs.

13. The offer was repeated by telex dated 20th August, although the then time limit of 10 a.m. the following day was rather unrealistic, not least because it was the middle of vacation.

14. Whatever views the Petitioner may have held about the Respondent's health, she was not entitled to information which the Respondent might authorise to be disclosed by his doctors for the sole purpose of life cover envisaged by the Order and the undertaking. She was not prepared to concede this in the letter of 6th July. The Respondent did not know it would be conceded until the 3rd day of the hearing.

15. In my view the Petitioner has, since 6th July, continued these proceedings unnecessarily. It is true that the offer of 29th June contained a time limit that, in the context of these proceedings, might be considered short. It is also true that the deed was to be drawn by the Respondent's solicitors and that there was no offer of costs. However, had the Petitioner responded positively, I have no doubt that an acceptable arrangement could have been worked out. The 2nd offer in August suggests the time limit was not immutable. The detailed directions to which the Respondent has now agreed suggest that he was not totally inflexible.

16. I accept it may not have been possible to resolve the question of costs. At that stage, however, costs would not have been substantial and certainly insignificant compared with the costs incurred by now. The matter could have been left to the court to resolve, as it has been now.

17. The Respondent's conduct has undoubtedly caused the Petitioner's advisers considerable anguish. However, the allegations of negligence, conflict of interest and professional misconduct are matters which will have to be resolved elsewhere. They would not have prevented considered legal advice being given to the Petitioner. They are not relevant, in my view, to the question of costs.

18. In the circumstances, the Petitioner will have the costs of this application up to and including 29th June 1984. Thereafter, costs to the Respondent.

19. I will certify for 2 counsel. As this was not argued, I will be happy to hear counsel on it or on any other point that needs clarification.

	( N.J. Barnett )
	Deputy Judge of the High Court

Representation:

28723-EN-1984-12-03

SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON

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HCMC000019C/1983

No. 19 of 1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

___________

BETWEEN	SUSAN ELIZABETH HORTON	Petitioner
	and
	GERARD FRANCIS HORTON	Respondent

___________

Coram: Deputy Judge Barnett in Chambers

Date of hearing: 26th & 27th November, 1984

Date of delivery of Decision: 3rd December, 1984

_________

DECISION

_________

1. On 4th May 1984 Power J. made an order by consent in these proceedings. It was a lengthy order running to some 14 pages. It included provision for the decree nisi to be made absolute, it expressed satisfaction as to the arrangements for the younger children of the family and made various financial provisions. Each party also gave several undertakings which are embodied in the order.

2. The object of the order was to resolve all outstanding differences between the parties and to implement a clean break between them. A clean break which the courts have often stressed as being so desirable and which legislation is now intended to achieve.

3. Amongst his other undertakings the Respondent gave one in the following terms:

"(g) within 28 days from the date hereof to undergo a medical examination to enable the Petitioner, at her own expense, to insure his life provided that the Respondent shall not be liable in any event howsoever for any non-disclosure, partial disclosure or mistaken statement or otherwise during or in connection with such medical examination."

4. On the 11th May the Petitioner's solicitors sent to the Respondent's solicitors a proposal form from a reputable insurance company. The Respondent was unwilling to sign the form as it stood. After some negotiation it was agreed that certain amendments to the form should be made. The Respondent then completed and signed the form and underwent a medical examination. However, in the form, the Respondent disclosed a previous medical history but did not disclose details of the doctors who had previously treated him. He would not give this information. As a result, the insurance company declined to accept life cover.

5. The Petitioner took the view, probably correctly, that there was little point in pursuing the matter further as no insurance company would be likely to accept the risk without first having been able to obtain information from the Respondent's previous doctors. So the Petitioner took out a summons on 31st May which, in essence, seeks an order that the Respondent gives information, relating to his past medical history, of the nature which is usually required by an insurance company. Various affidavits were filed on behalf of bath parties. The summons eventually came on for hearing before me on 26th November. I say eventually came on for hearing because the brief history which I have recited is but the tip of a very considerable iceberg. Whilst what has taken place before the summons came on for hearing is obviously of the greatest importance to the parties, it need not, I think, concern me in the ruling which I am required to give.

6. When the summons came on for hearing, the Petitioner made two applications. The first application was for an adjournment. I granted that adjournment and I think nothing more need be said about it.

7. The second application was for leave to cross examine the Respondent and his solicitor upon affidavits filed by them. It is upon this application which I now have to rule.

8. The first point which I have to consider is whether I have jurisdiction to make the order sought. There appears to be some difference of opinion as to whether the jurisdiction lies under the Matrimonial Causes Rules or under the Rules of the Supreme Court. Although Mr. Mills-Owens on behalf of the Respondent has suggested otherwise, I am satisfied that Rule 77(5) of the Matrimonial Causes Rules is relevant. The Petitioner's summons is simply asking the court to implement terms agreed between the parties.

9. I rely on De Lasla v. De Lasala (1980) A.C. 546. At p.560 Lord Diplock said:

"Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order; and the method of enforcing such of their provisions as continue to be executory is not by action but by summons under the court order pursuant to the liberty to apply."

10. I agree with Mr. Rodway that the present summons is properly brought under the liberty to apply provision in the consent order. It relates to an essential part of the financial arrangements. In my judgment, it must fall within the definition of ancillary relief in the Matrimonial Causes Rules. As I have said, Rule 77 confers jurisdiction.

11. Having established jurisdiction, the next point to consider is how the court should exercise its discretion. This point was recently and carefully canvassed by the Court of Appeal in Y v. Y (Civil Appeal 99/84). In that case Fuad J.A. said:

"As regard affidavits in general, there will be cases where the interests of justice dictate that a deponent should be subject to cross-examination. For example, where the motives of directors in exercising their powers is in issue, as in Smith and Fawcett[1942] 1. Ch. 304. In other cases, in my judgment, the true rule must be that the court has an unfettered discretion to permit cross-examination on an affidavit but the applicant is not entitled to this right as of course. He has to establish that in all the circumstances of the case there is a good and sufficient reason for the application. He will not find this difficult where the evidence on the affidavits will result in what I might call a final order. He will find it more difficult in interlocutory matters, perhaps, for ,as the judge below had in mind, great delay and expense might be entailed. It seems to me that what is essential for the applicant to show is that the proposed cross-examination might be productive of a useful result at the stage that the application is made. If no reason can be suggested for supposing that the cross-examination will then be helpful, the application will be refused in the discretion of the court, indeed, in certain circumstances it might be regarded as oppressive and, as such, an abuse of the process of the court."

12. How then should I exercise my discretion? It is necessary, I think, to look at the issue involved. The issue, in my judgment, is a simple one namely, the true construction of the Respondent's under-taking. Should it be construed narrowly as the Respondent would have it, so that his obligation is to undergo a medical examination and no more? Or should implied terms be read into the undertaking, as the Petitioner contends, which oblige the Respondent not only to undergo a medical examination but also to furnish full and complete information relating to his medical history as required by the insurance company or its doctor?

13. Mr. Mills-Owens asks how is cross-examination relevant to enable the court to construe the undertaking, it being accepted that the medical examination agreed in the undertaking was for the purpose of enabling the Petitioner to insure the Respondent's life and that such insurance was sought. Mr. Mills-Owens concedes the principles upon which evidence is admissible to enable a court to construe an agreement. That evidence, however, is limited to explaining the circumstances in which the agreement was made. Evidence may not be admitted to show the intention of the parties or their actions subsequent to the making of the agreement.

14. The two affidavits in connection with which cross-examination is sought were made by the Respondent and his solicitor. Principally, these affidavits deal with events which took place subsequent to the making of the order on 5th May. Mr. Rodway has taken me through these affidavits in some detail and pointed to a number of areas where he says either the Respondent should furnish an explanation or there is a dispute as to what occurred. From this it is clear to me that what is intended is a wide ranging cross-examination, particularly of the Respondent, on matters which, in my judgment, are irrelevant to the construction of the Respondent's undertaking. As I have already said, the intention of the Respondent and his subsequent actions are irrelevant. Equally irrelevant are the subsequent discussions between the parties' solicitors in relation to the insurance proposal form.

15. The Respondent's undertaking constitutes part of a large and comprehensive order. In my view, no further evidence is really necessary to enable the court to view the undertaking from the same position as the parties when the order was made. If evidence is necessary in order fully to complete the factual background, it is contained in the various affidavits but is not in dispute.

16. In the passage which I have cited from Y v. Y it is made clear that an applicant will not find it difficult to obtain leave to cross examine where the evidence on the affidavits will result in a final order. This is undoubtedly the situation in the present case. However, as I have already indicated, cross-examination will be upon matters which are irrelevant to the issue namely, the construction of the undertaking. In addition to that, such cross-examination, notwithstanding firm and proper control by the court, can only lead to an unnecessary waste of time and expense.

17. Leave to cross examine the Respondent and his solicitor upon their respective affidavits is therefore refused.

18. There are two other matters which I should perhaps mention in deference to the arguments put forward by counsel. First, I was cited a number of authorities upon the construction of undertakings. In addition, Mr. Rodway urged that I should not lose sight of the possible consequences if the undertaking is construed as the Respondent seeks. To my mind, however, those are matters which the court can only properly consider when it comes to the construction of the undertaking itself.

19. Secondly, relying upon Comet Products U.K. Ltd. v. Hawkex Plastics Ltd. & anr. (1971) 2 Q.B. 67, Mr. Mills-Owens contends that the Respondent may not, in any event, be a compellable witness. That case involved contempt proceedings. The Court of Appeal took the view that because a person against whom such proceedings are lodged might suffer such a penalty as might be imposed in criminal proceedings, it would not be right, as a matter of discretion, for the court to allow a person accused of contempt to be cross examined upon an affidavit. Such cross-examination might be of such a nature that the person would be shown to be in contempt by reason of the evidence given by him.

20. As Mr. Rodway rightly emphasised, the Comet case concerned contempt proceedings. In the present case, the Petitioner is not seeking to have the Respondent committed but rather given directions by the court as to the manner in which he should implement his undertaking. Mr. Rodway says rightly, I think, that in matrimonial proceedings resort to committal is usually a last and desperate step when all else has failed.

21. I accept what Mr. Rodway says. However, as I suggested to Mr. Rodway in the course of his argument, it is possible that in an appropriate case, the court of its own motion might initiate contempt proceedings. I do not say that this is such a case. Nonetheless, it does seem to me that if the undertaking is eventually construed as the Petitioner seeks, the Respondent as a barrister of the Hong Kong and English Bars and as leading counsel in Australia has little to be proud of in his conduct.

22. I content myself with saying that there might be substance in Mr. Mills-Owens' point.

(N.J. Barnett)

Deputy Judge of the High Court

Representation:

Mr. Rodway, Q.C. & Mrs. Penlington (Ms. Hampton, Winter & Glynn) for Petitioner

Mr. Mills-Owens, Q.C. & Mr. Faulkner (Ms. Baker & Mckenzie) for Respondent

28122-EN-1983-11-16

SUSAN ELIZABETH HORTON v. GERARD FANCIS HORTON AND ANOTHER

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HCMC000019/1983

1983, No.19

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

	SUSAN ELIZABETH HORTON	Petitioner
	and
	GERARD FRANCIS HORTON	1st Respondent
	and
	GERALDINE FELICIA VIOLA	2nd Respondent

_________

Coram: Hon. Power, J.

Date: 16th November 1983.

___________

JUDGMENT

___________

1. In this matter the wife is suing for dissolution of marriage on the ground that the marriage has broken down irretrievably because the husband has behaved in such a way that she cannot reasonably be expected to live with him. She now makes application for an order for interim maintenance. The petitioner said in her petition that she "is of no gainful occupation" and this assertion has never been called into question.

2. In his first affidavit, filed on the 23rd June 1983, the husband said that he is a barrister practising the bars of Hong Kon and New South Wales and that his income from his practice represents his major source of income. He said that his gross receipts from practice in Hong Kong for the year ended 31st March 1983 were $3,640,958.00 amd that his expenditure incurred in earning this income was $900,000.00. He said that his net receipts then before tax were $2,740,953.00 and that from this it had to be deducted HonG Kong tax of $411,143.70, leaving an estimated net receipt from his Hong Kong practice of $2,329,840.30. He also estimated that his net receipt from his Australian income before tax was AU$269

3. In V. v. V. ⁽¹⁾, the Appeal Court of Hong Kong dealing with the question of maintenance pending suit, held that:-

"	(1)	Section 7 of the Matrimonial Proceedings of Property Ordinance does not apply to case of maintenance pending suit and it is not therefore appropriate for the court to make a detailed investigation of the financial position of the parties. The sole criteria in making an award are "reasonableness" (Section 3 of Cap. 192) and the needs of the parties.
	(2)	In awarding interim relief, the Court should not take a long term view. Thus the potential earning capacity and future capital prospects of the parties should be ignored. Nor should consideration be given to an expense allowance except to the extent that other income might thereby be freed for the purpose of paying maintenance pending suit, since the recipient could not treat it as actual earnings."

4. This Court is not called upon to make a detailed investigation of the financial position of the parties but must make its award in accordance with, what is reasonable given the needs of the parties` It is true that the capital assets of the parties must not be ignored; however, the Court is primarily concerned with income.

5. The material before the before the Court revealed that the wife at the time when the proceedings were commenced had assets totalling about hK$800,000. The wife, in her affidavit filed on the September 1983, set out that she was the owner of an unspecified number of Krugerrands, this claim is disputed by the husband, and that she has sold 100 of these Krugerrands and placed the proceeds, amounting to $315,000, on deposit with the Chartered Bank . She also detailed certain bank accounts and gave, where she was aware of it, the balance in each. She said that she had the sum of $175,000 which had partly come from her savings account and partly from her current account on deposit.

6. She then set out an estimate of her monthly expenses, totally $33,879.00, which had been arrived at after consideration of her expenses for the months of July and August.

7. The only other moneys in which she might be said to have an interest were in certain trust funds, the extent of which has not been disclosed to the Court. The husband, in his first affidavit, detailed a number of trusts in two of which he said his wife had a beneficial interest and that "any future income distributions from these trusts are the discretion of the trustees". The husband suggests that the wife might be currently entitled to some income from these funds if she applies to the trusters. She says that she knows nothing of the details of the trusts and that she has made no application. The husband has not given any estimate of the amount of income to which she might be entitled therefrom. Given the paucity of information in this regard and the fact that no entitlement to income has been show, and bearing in mind that this is an application for interim maintenance, I think it proper to ignor any possible entitlement from the trusts.

8. The only assets which the husband in his original affidavit suggested were in the name of the petitioner were a current account with the ANZ Bank in Sydney of about AU$6,000.00 The current account at the Chartered Bank, Hong Kong of about $17,000 to $18,000, an apartment in Monte Carlo and a 1979 Peugeot motor car, which is not in Hong Kong.

9. Miss Leong, for the husband, suggested that the wife's estimate of monthly expenses was not a proper figure to work from as, during the months of July and August, the four children of the marriage was staying with the wife which would make the figures for food, entertainment, restaurants etc. very much higher than they would be when, as is usually the case, she is living by herself. She also suggested the figures for clothes, hairdressing and cosmetics and the figure for telephone, which is very much higher than the husband says is appropriate, are inflated. She submitted that the figure of $2,000 which the wife said she required so as to be able to give money to the children was much too high as the children were wholly supported by the husband.

10. The wife said that she and her husband had enjoyed a high standard of living during the course of their marriage and that her husband was a man of substantial wealth.

11. In her second affidavit, filed on the 25th October, the wife said that there had been substantial changes in her financial position since her first affidavit which had been caused mainly by the enormous expense to which she had been put defending divorce proceedings instituted in Australia by her husband. She said that the amount of HK$315,000 which had been placed on deposit with the Chartered Bank had been used for payment of costs and disbursements incurred in both the Hong Kong and the Australian proceedings. She said that the deposit in the National Westminster Bank was now reduced from $1,000 to £650 and that the money in the joint U.S. Dollar Savings Account had been closed and the money withdrawn in cash. She said that her current account at the Chartered Hong Kong Bank now had a balance of $6,857.79. She said that the 3 month Deposit Account of HK$175,000 has remained on deposit but that it has been ear-marked to pay costs and disbursements incurred in Australia. She said that she had been informed that. the costs and disbursements in the Hong Kong proceedings were now in excess of $675,000. She said that in Australia she had paid AU$5,008.11 into the account of one solicitor and that she had paid approximately AU$5,050 on account to another solicitor. She said that she understood that the disbursements in Australia amounted to over HK$200,000.00 in excess of these payments. She said that she had sold the remaining Kruggerands and had used the proceeds of that sale to defray outstanding costs and disbursements.

12. It seems clear, and indeed no issue was really made of this in the argument before me, that, at the present time, the cash which the wife formerly had at her disposal has been spent, or is about to be spent, mainly for the purposes of meeting legal expenses. The wife said that her husband had stopped paying her the HK$10,000 a month which he paid from the lst May 1983 to 1st September 1983 and that he had ceased paying rent for the former matrimonial home. She said that the last payment of rent made by the respondent was on the 1st July 1983. The position of the wife then is that she has no gainful occupation and has no remaining balance of disposable cash.

13. The husband filed a third affidavit on the 24th October 1983. He concluded this affidavit by saying : -

"I say that since the end of May 1983 the petitioner has received from me or out of joint accounts substantially funded by me just over HK $248,000. when this figure is looked at together with the ready cash available to her as deposed to by her, the value of her total assets and her right to ask for trust distributions to be made to her, and the level of my income and expenditure also considered, it is not reasonable for her to receive interim maintenance."

14. This was the attitude of the husband when the matter came before the court.

15. In paragraph 41of that affidavit, the husband says, "The only income which I receive apart from my income from the bar is some trust distributions and the interest on the bank deposits, the savings bank interest and interest on the fixed interest securities which have been set out in my affidavit of means". He went on to say "The trust distributions of income are from either the GF Trust or the Horton Investment Trust. The trust income of these trusts has to be distributed to avoid a penal rate of Australian tax. The petitioner has just as much right to be considered by the trustees in making these distributions as I have, and she was invited by my solicitors to make appropriate representations to the trustee of the Horton Investment Trust, where income was becoming available for distribution, which invitation is set out in my letter dated 20th July 1983".

16. The petitioner does not suggest that the wife has ever received any distribution from this trust. He says that "She has just has much right to be considered by the trustees in making these distributions as I have". As I have already indicated I do not think it appropriate in this application to take into account any possible entitlement from the trusts.

17. The husband goes onto state that his receipts from his practice at the bar from the 1st April 1982 to 31st October 1982 amounted to HK$2,094,399 and that his receipts for practice for the same period in 1983 amounted to HK$1,476,376 and. that fee notes sent out from the 1st April 1982 t6 31st October 1982 amount to HK$2,467,500 and that the fee notes for the same period in 1983 amounted to HK$1,636,000. He says that upon this basis, it is likely that his income from the bar for the period ending 31st March 1984 would be about 2/3 of his income for the period ending the 31st March 1982 and that the gross for the year ending 31st March 1984 will, therefore, be in the amount of HK$2,427,305. He said that he expected his chambers expenses to be slightly less amounting to an estimated HK$700,000 which would result in net income of HK$1,727,305 from the bar. I am prepared for the purposes of this application to accept this figure.

18. He says that his personal expenses for the year ending 31st March 1983 not including amounts transferred for the purpose of making investments amounted to HK$1,906,667. It is to be noted that in this figure there was included not only the school and university fees for the children and the payments on the mortgage for the apartment in Monte Carlo but also figure of HK$77,000 for the purchase of a Mazda motor car, a figure of HK$250,000 for part of the building work on the Monte Carlo apartment and a figure of between HK$50,000 and HK$100,000 in payment for some of the furniture and furnishings for the Monte Carlo apartment.

19. The husband said that in order to minimize hotel expenses, he had now taken a lease of a flat at a monthly rental of $17,000 plus management charges and that lie expected to have to spend about $100,000 to purchase furniture and kitchen equipment. He said that given that he would have to employ an amah and pay electricity, telephone fees etc., he expected that his monthly expenditure in connection with the flat would be $24,000. He said that his total legal costs so far had been $234,405.41. He said that his personal expenses from the lst April 1983 to date had been approximately HK$1,400,000 and that he expected these will be in excess of HK$2,100,000 for the year ending 31st March 1984. He said given that he expected his net income to be HK$1,727,305 and that he expected to receive "interest, income and trust distribution income" in the amount of approximately HK$400,000. His surplus funds for the year ending 31st March 1984 would, therefore, be less than HK$30,000. It was upon this basis that the respondent was suggesting that it was not reasonable to order him to pay any interim maintenance to his wife. What the husband was saying was that although he expects to have a net income of $2,100,000, the calls upon this income are such that he cannot reasonably be expected to make any payment to his wife.

20. The wife, on the other hand, suggested that she was entitled to an order in about the same amount as would be ordered in an application for permanent maintenance. She submitted that that order should be for an amount of about 1/3 of the husband's net income and suggested the figure of $75,000 per month.

21. The Court must order what is reasonable, given the income of the husband and the needs of the parties. Even if the wife's figure of $34,000 for her needs be accepted, and I am by no means satisfied that it should be, the jump between that figure and $75,000 is, I am satisfied, not justified on the evidence before me.

22. Mr. Rodway, who appeared for the wife, suggested that she was entitled to have some provision made so that she could, from time to time, enjoy a vacation and that she was entitled, given the very large income of her husband and the life style which had been established when the parties resided together, to expect a generous award of interim maintenance.

23. One thing which the Court must not do in circumstances such as this is to give a wife an amount over and above what is reasonably necessary for her to maintain herself. Any such award would be clearly wrong for it would, in effect, be an award of capital. Further the Court must not make any award that takes into account the amount which she is likely to have to spend on costs. To do so would be equally wrong for it would anticipate an order for costs in her favour which may never be made. I am satisfied that the wife's suggestion that she needs $34,000 a month for her basic maintenance cannot be accepted. I am satisfied that the expenditure during the months of July and August was incurred not only as regards the wife but also as regards the four children and that the figure must be scaled down by about one third in order to arrive at the figure which applies to the wife alone. I am satisfied that she is entitled to have provision made for holidays and that she is entitled to have provision made which will allow her to treat the children in the same way as she has done in the past. I accept that the children are supported by their father but am satisfied that it would be wrong to place the mother in a position where she could not exhibit some degree of generosity to the children on appropriate occasions.. In all of the circumstances, I consider that the proper amount to award for interim maintenance a sum of $28,000 per month. I am satisfied that this order should be backdated so as to operate from the 1st September 1983. The arrears for September and October are to be paid forthwith. The payment for November is to be made forthwith and the payments for the months thereafter are to be made on or before the 1st day of each month. There will be an order nisi that lst respondent pay petitioner's costs to be taxed.

	(N.P. Power)
	Judge of the High Court

(1) 12 H.K.L.J. 83

Representation:

Mr. Rodway, Q.C. & Mrs. Pennington (instructed by Hampton, Winter & Glynn) for Petitioner.

Miss J. Leong (instructed by Helen A. Lo & Co.) for Respondent.

28121-EN-1983-11-08

SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON AND ANOTHER

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HCMC000019A/1983

1983, No. 19

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

	SUSAN ELIZABETH HORTON	Petitioner
	and
	GERARD FRANCIS HORTON	1st Respondent
	GERALDINE FELICIA VIOLA	2nd Respondent

_________

Coram: Hon. Power, J.

Date: 8th November 1983.

___________

JUDGMENT

___________

1. Application is made to file a supplemental petition alleging as behaviour an allegation made in an answer. This is the first time that I have had to deal with such an application.

2. Miss Leong says that the supplemental petition really contains a suggestion that the answer is vexatious and that the only proper recourse for a petitioner, who has made such a suggestion, is to take steps to have that part of the answer struck out. She says, further, that the pleading of an answer cannot properly be regarded as conduct in the course of the marriage.

3. Mr. Glynn who appears for the petitioning wife does not enter into the question as to whether or not the answer might be liable to be struck out as being vexatious. What Mr. Glynn says is that a pleading is a matter of fact which must be made upon the instructions of the party. He says that once the pleading is made, it must be regarded as the act of the party. He submits that the marriage is still subsisting and that the petitioner in the present case is entitled td plead such an act as part of the behaviour of the respondent. He submits that whether or not the answer might be struck out as being vexatious is not material to this application.

4. I am in some doubt as to whether the supplemental petition is in the correct form. I have pointed this out during the course of argument and Miss Leong has not taken any point in this regard. I am unable to see any reason why the petitioner should be required to apply to have the answer struck out and should be debarred from relying upon the answer as an act of the respondent. That being so, I consider the., only proper course is to give leave to file a supplemental petition, the costs will be costs in the cause and the respondent to have 14 days to file an answer.

	(N.P. Power)
	Judge of the High Court

Representation:

Mr. Glynn of Hampton, Winter & Glynn for Petitioner.

Miss J. Leong (instructed by Helen A. Lo & Co.) for Respondent.

30286-EN-1983-10-26

SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON AND ANOTHER

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HCMC000019B/1983

Application by a petitioner wife, in her suit for dissolution, for an order staying her husband from proceeding in his suit for dissolution commenced in Australia.

Wife's suit was commence first in time on ground of unreasonable behaviour. The ground relied on by the husband in his suit in Australia was separation for one year which ground is unknown to the law in Hong Kong.

The parties reside and the husband earns his living in Hong Kong. The Court was satisfied that its jurisdiction to make the order sought was placed beyond doubt by the decision in BritishAirways Board v. Laker Airways Ltd. & Others (1983) 3 W.L.R. 545 and that the test was whether the relief was necessary to avoid injustice.

The Court considered all of the circumstances and in particular:-

	(a)	that the husband's later commenced suit would have the effect of quashing the wife's suit if it was allowed to continue;
	(b)	that the mounting costs of dual proceedings imposed a particular burden on the wife;
	(c)	that the parties lived in Hong Kong and the husband earned his living in Hong Kong from which an order for permanent maintenance, which was likely to be made, would have to be paid.

The Court was satisfied that the wife would suffer injustice if the order was not made and ordered that husband be stayed from proceeding further in Australia.

1983, No.19

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

	SUSAN ELIZABETH HORTON	Petitioner
	and
	GERARD FRANCIS HORTON	1st Respondent
	and
	GERALDINE FELICIA VIOLA	2nd Respondent
	______

Coram: Hon. Power, J.

Date: 26th October, 1983.

___________

JUDGMENT

___________

1. This is an application by a wife who has commenced proceedings for dissolution in Hong Kong asking that her husband be stayed from pursuing dissolution proceedings which he has commenced in Australia. The wife is English and the husband is Australian. The parties were married in London in 1960 and there are 4 children of the marriage. After marriage the parties resided in England until 1964 when they moved to Australia and then, in March 1976, they came to live in Hong Kong. The husband had practised at the Bar in Sydney and continued to so practise in Hong Kong. Thereafter the parties lived in Hong Kong and the husband pursued his career as a barrister in the Colony. While it appears that he has something of an international practice and that he, at times, travels outside the Colony there is no contest that his principal place both of residence and of work has, since March 1976, been Hong Kong. During the years preceding 1983 unhappy differences arose between the parties and, in consequence of these differences, the husband began to contemplate commencing dissolution proceedings. He informed his wife of this and by the 5th April 1982 he had given "initial instructions" to his solicitor Mr. Delaney in Sydney. The wife, because of what she had been told by the husband, saw her solicitor in Hong Kong. She gave instructions to him and a petition was issued on the 17th May 1983 alleging that the marriage had broken down irretrievably because the husband had behaved in such a way that the petitioner could not reasonably be expected to live with him. The parties had been living apart for some time prior to April 1983 but they did resume cohabitation in Hong Kong for a short time, the period is in dispute, during that month. The wife says that she was endeavouring during this time to effect reconciliation. It appears that both parties were in Hong Kong at the end of April and that the husband left Hong Kong on 1st May and did not return until the 20th May, three days after the wife's petition had been issued. He was served with that petition on the 21st May. The husband left the matrimonial home on the 23rd May and, shortly thereafter, proceeded to Australia. On the 26th May, five days after service on him of the wife's petition, the husband swore an affidavit in his proceedings in Australia and on the 30th May his petition was issued in Sydney.

2. The husband's petition was based upon the ground contained in section 48 of the Australian Family Law Act 1975 which states that the ground for a divorce shall be that the marriage has irretrievably broken down and that this ground shall be held to have been established if the court is satisfied that the parties have separated and thereafter lived separately and apart for a continuous period of 12 months immediately preceding the date of the filing of the application for dissolution. Section 50 deals with the effect of the resumption of cohabitation during that period indicating that, if the period of resumption of cohabitation is less than 3 months, then that period will not prevent the period of separation that has hitherto taken place from being aggregated with the period of separation that follows thereafter. It must be emphasized that there is no such ground in Hong Kong. The only comparable, but markedly different, ground is irretrievable breakdown and separation for a period of 5 years.

3. On the 7th June 1983 the husband filed an affidavit in support of an application to the Family Court in Sydney for an injunction seeking to restrain the wife from proceeding further in Hong Kong as regards certain matters of ancillary relief. This application was heard ex-parte by the Family Court in Sydney on the 9th June and certain interim orders were made.

4. On the 10th June 1983 the wife went to Macau and when she returned therefrom was served with the Australian proceedings by an agent of her husband who had by then returned from Australia. On the 14th June the application for an injunction in which interim orders had been made on the 9th June was served on the wife. On the 16th June the husband filed an answer in Hong Kong admitting irretrievable breakdown but denying unreasonable behaviour.

5. On the 18th June the wife swore two affidavits in answer to her husband's petition in Australia. In one of these she challenged the Australian court's capacity to hear the petition on the grounds of (1) convenience (2) domicile and (3) that she had a petition for dissolution already in existence. On the 24th June when the husband proceeded in Australia with his injunction application, all the interim orders which had been made on 9th June were discharged.

6. On the 7th July 1983 the husband filed an application in the District Court in Hong Kong, where the wife's petition was then being dealt with, asking that paragraph 8 of the petition, which alleged irretrievable breakdown of the marriage, be struck out and that the petition be stayed or dismissed. This application was made because the wife, in one of tier affidavits field on 18th June, had said that she denied that she felt that the marriage had broken down irretrievably. The wife's reply to this was that when she made the statement she was referring to the position in April 1982. On 14th July the matter was transferred from the District Court to the High Court. After the transfer an identical application to that referred to above was taken out by the husband in the High Court. This was eventually heard on October 10th by Mantell J.

7. On the 9th August 1983 Mr. Justice Hogan granted a decree nisi in the Family Court of Sydney having refused the wife's application for an adjournment of the proceedings.

8. On the 12th August the wife entered a notice of appeal against this decision which had the effect of staying the husband's dissolution proceedings.

9. There are four children of the marriage, two boys and two girls. The older son and the two daughters are now over the age of 18. The younger son, Gerard, who was born on 20th February 1968, is presently 15 years and 8 months of age. There is an issue as to the custody of that child. On the 12th August 1983 after that child, who is at boarding school in England, visited his parents in Hong Kong, his father took him to Europe and returned him to his boarding school in England. On that same day, 12th August, the husband made an application to the High Court in the same terms as that which had been made on 7th July to the District Court. On the 6th September the wife took out a summons asking for interim custody in the Hong Kong proceedings and on 7th September she issues a summons asking for directions as to the conduct of the action. On 8th September she issued a summons asking for maintenance pending suit.

10. It appears that on the 8th September the husband took the child from Monaco to Sydney where on the 9th September he made an ex-parte application before Mr. Justice Ross-Jones for an interim custody order. This application was refused. On the 12th September the court in Hong Kong gave directions on the wife's application as to the conduct of the action. On the 14th September the husband, still in Australia, applied to Mr. Justice Tonge, asking that the wife's appeal against the decision of Mr. Justice Hogan, which had been fixed for the 15th November, be expedited. The husband also asked the judge to make an order staying the wife's proceedings for custody in Hong Kong. The judge acceded to the first application, ordering that the appeal date be put forward to the 5th October, and stood over the second application. On the following day, the 15th September, at the resumed hearing Mr. Justice Tonge, who had apparently consulted with Mr. Justice Ross-Jones overnight refused to stay the wife's custody proceedings in Hong Kong and discharged his order of the previous day whereby he had expedited the hearing of the wife's appeal. Criticism is directed towards the wife in this regard as her counsel at this hearing indicated to the court that the proceedings in Hong Kong would not proceed further pending the hearing of the appeal. It is submitted that it was never the wife's intention that this should be so and that it was quite wrong that the court should have been so informed There can be no doubt as to the correctness of this submission and I have not had any real explanation as to how this came about.

11. On 16th September the husband, who was still on that date in Sydney, took out a, summons in Hong Kong asking that the wife's action and all interlocutory applications therein be stayed pending the outcome of her appeal against the order of Mr. Justice Hogan. This application was heard on the following day and dismissed. On that day the husband took the son Gerard from Sydney back to Monaco. It appears that by the 18th September Gerard was back at school and, from the affidavit of Mr. Trotter, a solicitor consulted by the husband in London, we know that on Wednesday, 21st September, the husband was consulting him as to what should be done with regard to Gerard's interests. Mr. Trotter sent Gerard to see Dr. Arnon Bentovim, a psychiatrist, and went to Gerard's school to discuss matters with Gerard and to obtain a letter from his classmaster.

12. By the 28th September the husband had returned to Hong Kong and on the 29th September he issued an application for leave to appeal against the order of the court made on the 16th September refusing to stay the wife's Hong Kong proceedings. On the 4th October that application came before this Court and leave was refused.

13. On the 6th October the husband applied ex-parte on notice to Mr. Justice Hogan in Sydney asking for an order that the wife be directed not to proceed further with her proceedings in Hong Kong and for an order expediting the hearing of the appeal. Both of the applications were refused but an indication was given that the hearing of the appeal might be expeditiously dealt with in Melbourne.

14. On the 7th October the husband's solicitors in Hong Kong gave notice to the wife's solicitors in Hong Kong that the appeal would be heard in Melbourne on the 13th October. On the 8th October the wife issued this application asking that the husband be directed that he must not pursue proceedings in Australia.

15. On the 10th October there was a hearing of the husband's application of the 12th August which had sought to have the wife's petition stayed or dismissed before Mr. Justice Mantell. The application was dismissed. The wife's application of the 8th October came on for hearing on 12th October and during the course of argument on that application the court dealt with an application by Mr. Jolly of Deacons asking for the appointment of a guardian ad litem for the son Gerard. I was prepared to order the appointment of a guardian ad litem but was satisfied that it was not desirable that Mr. Trotter, the solicitor who had been approached by the husband, act in that capacity. I therefore asked Mr. Jolly to approach the Official Solicitor in London to enquire whether he would act.

16. While the wife's application was being heard in Hong Kong her appeal was, on 13th and 14th October, being heard in Melbourne. I have been told that that hearing has now concluded and that judgment therein is likely to be handed down in about 8 weeks. I am informed that at the conclusion of the appeal hearing the husband issued another petition.

17. Miss Leong who appeared for the husband submitted that certain matters in the affidavit sworn by the wife on the 7th October for the purpose of these proceedings were inadmissible as the sources of the information were not sworn to. These concerned the nature of the hearing in Australia and the advantageous position which the wife suggested her husband will be placed in, as regards certain family property, if he is allowed to pursue his proceedings in Australia. It is true that this evidence did not reveal its sources and I am satisfied that it was not admissible. In the outcome I did not rely in any way upon the passages objected to. Objection was taken on the same ground to paragraph 11, paragraph 14, paragraph 16 and, in part, paragraph 25 of an affidavit by Mr. Broun, Q.C. who deposed as to certain matters of Australian divorce practice and law. The objection seemed to me well founded. I have not relied upon any of the matters objected. The husband also filed an affidavit as to Australian matrimonial law from a Mr. Joseph Goldstein. When I read that part of para. 25 of Mr. Broun's affidavit to which no objection was taken and para. 22 of Mr. Goldstein's affidavit I am satisfied that Australian courts generally do not make an order for costs in matrimonial matters. I have not otherwise relied upon the evidence contained in the affidavit of Mr. Broun.

18. Mr. Rodway who appeared for the wife relied, in particular, upon the following matters: -

	(1)	The wife had instituted proceedings in Hong Kong before any proceedings were commenced in Australia.
	(2)	Hong Kong is the natural forum for the hearing of the divorce and the ancillary proceedings given that it is the residence of both husband and wife and that the husband earns his living in Hong Kong.
	(3)	The expense of paying for dual proceedings and the cost of travel to Australia must work an unfairness to the wife as the husband earns approximately HK$3½ million per annum and she has " gainful occupation".
	(4)	The wife has, according to the medical evidence contained in an affidavit from Dr. Robert Anderson, suffered severe mental stress by reason of the marital break down which can only be exacerbated by the existence of dual proceedings.
	(5)	There will be financial unfairness to the wife as regards the matrimonial property, as is shown in the affidavit of Mr. Broun, Q.C., if the proceedings allowed to continue in Australia.

19. Mr. Rodway relied upon MacShannon v. Rockware Glass Ltd.⁽¹⁾ when making his submissions. He submitted that the court must order a stay if it was satisfied that justice so demanded. He referred to the judgment of Lord Salmon at 819 where he said:-

"To my mind the real test of stay or no stay depends upon what the court in its discretion considers that justice' demands. I prefer this test to the test of whether the plaintiff has behaved "vexatiously" or "oppressively" on a so-called liberal interpretation of those words."

He referred also to Lord Keith at 828 where he said: -

"My opinion therefore, in the present state of the authorities, is as follows. Where a defendant seeks a stay of proceedings on the ground that the action can and should be prosecuted elsewhere, he must show good reason why the court's discretion should be exercised in his favour. He must satisfy the court that the continuance of the action would work an unjustice because it would be oppressive or vexatious to him or would be an abuse of the court in some other way, that expression being understood in a broad and reasonable sense and without any necessary moral connotations, and also that the stay would not cause an injustice to the plaintiff. Where England is the natural forum for the action, in the sense of being that with which the action has a most real and substantial connection, it is necessary for the defendant, in order to establish injustice to him and no injustice to the plaintiff, to show some very serious advantage to him which substantially outweighs any advantage to the plaintiff.''

Mr. Rodway also referred to the judgment of Lord Reed in The Atlantic Star⁽²⁾ at 454, where he said: -

"In the end it must be left to the discretion of the court in each case where a stay is sought, and the question would be whether the defendants have clearly shown that to allow the case to proceed in England would in a reasonable sense be oppressive looking to all the circumstances including the personal position of the defendant. That appears to me to be a proper development of the existing law."

20. Mr. Rodway did not attempt to make a direct, hand in a glove, application to the facts of the present case of the test propounded in MacShannon's case by Lord Diplock, at 811.

He should not, in my view, be criticized for not so doing. The principles enunciated in the cases he cited, undoubtedly, give general guidance to a court considering an application for stay. The test propounded in MacShannon's case is, however, of doubtful application, as I shall later indicate, to proceedings of the kind before this Court.

21. Mr. Rodaway referred to Shemshadsfard v. Shemshadsfard^{^⁽³⁾}, Mytton v. Mytton^{^⁽⁴⁾}, suggesting these cases showed that in matrimonial disputes the test was one of fairness and convenience. Unfortunately these 2 cases seem to me to be of no real assistance in the present circumstances. In each the party applying was seeking an order staying English proceedings and relying upon the Domicile & Matrimonial Proceedings Act 1973, which has no parallel in Hong Kong. This Act, in s. 5 (6), gives power to order a stay of the English proceedings and, in paragraph 9 of Schedule 1 thereof, enacts, in terms, the "balance of fairness and convenience" test.

22. Much more in point was the case of Bryant v. Bryant⁽⁵⁾ to which Mr. Rodway then referred. In this matter the wife sought an injunction restraining the husband from continuing his divorce suit in Ontario, and from taking any steps to cause the decree nisi to be made absolute until the determination of her suit in the English court.

23. Eastham J. said, correctly in my respectful view, that the court's power to stay foreign proceedings must be used with great discretion unless there was injustice. In the outcome His Lordship being satisfied that there would be injustice if he failed to act granted the wife's application. Mr. Rodway contended that this case established that, quite apart from statute, it was proper for the court, for the prevention of injustice in a matrimonial action, to issue an injunction restraining a party both from continuing a divorce in another jurisdiction and from, taking any steps to cause a decree nisi to be made absolute until after the determination of the suit in the English Court.

24. Miss Leong submitted, initially, that the court had no jurisdiction relying, in this regard, principally upon the Siskina^{^⁽⁶⁾} and Richards v. Richards^{^⁽⁷⁾} Miss Leong, after finally referring to British Airways Board v. Laker Airways Ltd. Other^{^⁽⁸⁾} conceded that, in the light of that decision, she could no longer seek to argue that the court had no jurisdiction.

25. She then submitted that the balance of justice demand that the application be refused. She submitted upon the basis of Hyman v. Helm^{^⁽⁹⁾} that the husband was entitled to take advantage of the simpler ground and the lower costs in Australia. In that action an English court refused to restrain a San Francisco resident who had brought a commercial action against English defendants from pursuing the same action against the defendants in San Francisco. The principles enunciated in a commercial action brought in 1883 are, to my mind, of doubtful assistance in a matrimonial action brought in 1983.

26. However that may be, what Miss Leong did not advert to was that the husband in the present case, unlike the plaintiff in Hyman's case, was seeking to pursue a different cause of action. This, as I will demonstrate later, is, in my view, a factor of considerable, if not determining, importance. Miss Leong also referred to the Atlantic Star^{^⁽²⁾} and particularly to the judgment of Lord Reed at 453 where he said: -

"They (the modern authorities) support the general proposition that a foreign plaintiff, who can establish jurisdiction against a foreign defendant by any method recognised by English law, is entitled to pursue his action in the English Court if he genuinely thinks that that will be to his advantage and is not acting merely vexatiously. Neither the parties nor the subject matter of the action need have any connection with England. There may be proceedings on the same subject matter in a foreign court. It may be a far more appropriate forum. The defendant may have to suffer great expense and inconvenience in coming here. In the end the decisions of the English and foreign courts may conflict. But nonetheless the plaintiff has a right to obtain the decision of an English Court. He must not act vexatiously or oppressively or in abuse of the process of the English Court, but these terms have been narrowly construed."

I fully realise the strength of the words cited. It nonetheless must again be pointed out that the Court in the Atlantic Star was dealing with one cause of action being litigated in 2 jurisdictions and was being asked to make a determination as to whether that cause of action should to stayed in England.

27. Miss Leong also referred to Castanho V. Brown and Root^{^⁽¹⁰⁾} and particularly to the judgment of Lord Scarman at 570 where he said: -

"The question in the appeal is, therefore, whether the plaintiff should be restrained by the English Court from pursuing his claim for damages in the American Court. It is a question of great importance to the parties. In the American Court the plaintiff Claims punitive as well as compensatory damages ($5 m. compensation and "at least" $10 m. punitive or exemplary). In England he has no claim for punitive damages; and the scale of compensatory damages is much less. It is conceded that, had he begun in Texas in the first place, the English Courts would not grant an injunction to restrain him from continuing there. The defendants base their case upon the fact that he started in England, upon the advantages he has won from them in the litigation which ensued here, and upon the disadvantages, in the circumstances, which have arisen, of their being sued in America."

Again what must be borne in mind when considering this authority is that the court was dealing with a plaintiff seeking to pursue the same cause of action in another jurisdiction.

28. Finally Miss Leong asked me to apply the classic test, which is a distillation of the reasoning in St. Pierre v. South American Stores (Gath & Chaves) Ltd.^{^{^{( 11)}}} and The Atlantic Star^{^⁽²⁾}, propounded in Macshannon v. Rockway Glass Ltd.^{^⁽¹²⁾} by Lord Diplock, at 811, as follows: -

"If these expressions are eliminated from Scott L.J. 's statement of the rule, (in St. Pierre) the gist of the three speeches of Lord Reed, Lord Wilberforce and Lord Kilbrandon (in The Atlantic star) in my opinion enables the second part of it to be restated thus.

'(2)

In order to justify a stay two conditions must be satisfied, one positive and the other negative;

	(a)	the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and
	(b)	the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English Court."'

29. Only with considerable modification can these conditions be applied to the circumstances of the matrimonial proceedings before this Court, This Court is not dealing with the exercise of a discretion to stay its own proceedings so that foreign proceedings in the same action can be pursued but is being asked to decide whether it should, in the exercise of its discretion, order a plaintiff to proceed no further with a cause of action brought in a foreign court so that the proceedings before it, in a different cause of action, can be pursued. With some hesitation, and without being fully convinced that the 2 conditions are capable of proper application to the facts before me, I will attempt to apply them. The 2 conditions, laid down by Lord Diplock, may be broadly stated as follows:

(a)

the person who seeks the stay must show that justice can be dtineone at substantially less inconvenience or expense in the forum in which the proceedings will not, if the order is made, be stayed;

(b)

the stay must not deprive the party who seeks to pursue proceedings in the forum where it is sought to stay them of a legitimate personal or juridical advantage.

30. I again emphasize that the crucial matter to bear in mind when applying these conditions to the present circumstances is that, although each party is seeking a decree to dissolve the same marriage, each is pursuing a separate action - the husband, as petitioner in Australia, seeks a decree of dissolution on the ground of separation for one year, a ground unknown in Hong Kong, while the wife, as petitioner in Hong Kong, seeks a decree upon the ground of unreasonable behaviour.

31. When considering condition (a) the question for this Court must be: "Can justice be done in the action before it (the wife's action) at substantially less inconvenience and expense in Hone Kong?" The matters of inconvenience and expense do not really all for consideration when this question is posed for, clearly, justice can never be done in the wife's action if the Australian proceedings are allowed to continue to the point where there is pronouncement of a decree absolute. If the husband's action is pursued to that point the wife's action will be extinguished.

32. If one for the moment leaves aside the fact that one is dealing with two actions it seems clear that -

	(i)	as regards expense, if the order is made there must be substantially less expense than if, as is presently occurring, each of the actions continues to be pursued,
	(ii)	as regards convenience, given that the residence of the parties is Hong Kong and that the husband earns his living in Hong Kong, it must be more convenient to have the matter heard in Hong Kong.

In this regard I must deal with the suggestion that has been made by Miss Leong that Australian accountants, tax experts and trustees may need to be called as regards the ancillary relief. I find nothing in the evidence before me to satisfy me that this must be so. On the material before me I am satisfied that Hong Kong is the most convenient forum. Applying condition (a), as far as it can be applied, the result is in favour of an order.

33. I turn now to condition (b). Clearly the advantage being referred to in MacShannon's case was an advantage in the cause of action which the plaintiff was pursuing. What Lord Diplock was saying was that the Court must not deprive the party against whom the stay is sought from a legitimate advantage in that action. The court both in MacShannon's case and Castanho's case was dealing with a situation where it had to ask whether the plaintiff would be deprived of a legitimate advantage in the action if the stay was granted. The court was dealing with the same plaintiff and the same defendant and the same cause of action. What the court asked itself was whether the plaintiff would be deprived of a legitimate advantage in that action if the stay was granted.

34. What this Court must ask itself is whether the husband will be deprived of a legitimate advantage as regards the cause of action being determined by it if he is stayed from proceeding in Australia. The answer must, I am satisfied, be that he cannot be deprived of any legitimate advantage as regards that cause of action as he is not a party to it in Australia. The advantage he will obtain in the Hong Kong action is clearly not a legitimate one as he will, by taking another action, based upon aground unknown to the law in Hong Kong, extinguish it. The result of the application of condition (b) also then favours the making of an order.

35. As I have already indicated I am not convinced that the conditions enunciated in MacShannon's case are really applicable. As Lord Scarman said in Castanho's case, at 575: -

"The formula is not, however, to be construed as a statute. No time should be spent in speculating as to what is meant by "legitimate". It, like the whole of the context, is but a guide to solving in the particular circumstances of the case the "critical equation" between advantage to the plaintiff and disadvantage to the defendants."

I am satisfied that what the court must adopt is the broad view, to which I have already referred, enunciated by Lord Salmon in MacShannon's case where he said at 819: -

"To my mind the real test of stay or no stay, depends upon what the court in its discretion considers justice demands."

This view is supported by the words of Lord Scarman in Castanho's case, at 573, where he said: -

"But the width and flexibility of equity are not to be undermined by categorisation. Caution in the exercise of the jurisdiction is certainly needed; but the way in which the judges have expressed themselves from 1821 onwards amply supports the view for which the defendants contend that the injunction can be granted against the party properly before the court, where it is appropriate to avoid injustice."

In the British Airways' case Sir John Donaldson M.R. having quoted those words said at 577: -

"In our judgment that passage confirms the existence of the jurisdiction which we are asked to exercise and poses the question which we have to ask ourselves, namely, 'In all the circumstances, is it appropriate to grant the relief sought in order to avoid injustice?' In the context of this case, the avoidance of injustice to all parties may not be possible but, that failing, we have to ask ourselves whether the grant or the refusal of the relief sought will create the lesser injustice. We have in Lord Scarman's words to resolve that "critical equation". That involves taking account of a number of circumstances to which we now turn."

It is clear, then, that what the court must do is to, having considered all the matters in "the critical equation", determine whether it is "appropriate to grant the relief sought to avoid injustice". While the court must be slow to inhibit the rights of a party to proceed in another jurisdiction it must not hesitate to act if injustice would result from its failure so to do.

36. The matters to be considered are set out in the judgment of Lord Denning M.R. in Smith Kline & French v. Bloch^{^⁽¹³⁾} at 78 where he says:-

"The plaintiff has no longer an inborn right to choose his own forum. He no longer wins the toss on every throw. The decision rests with the courts. No matter which jurisdiction is invoked, the court must hold the balance between the plaintiff and the defendant. It must take into account the relative advantages and disadvantages to each of them: not only the juridical advantages and disadvantages, but also the personal conveniences and inconveniences: not only the private interests of the parties but also the public interests involved. The court decides according to which way the balance comes down."

What then must be thrown into Lord Denning's "balance" or, if one prefers, Lord Scarman's critical equation", in the present case?

37. On the one hand there is the right of the husband to pursue his action for dissolution in his country of domicile where some of the assets with which the ancillary relief will deal are situated before a court seized of jurisdiction upon an uncomplicated ground in proceedings which will be both expeditious and inexpensive.

38. On the other hand is the right of the wife to pursue her action for dissolution, commenced first in time, before a court in a jurisdiction where both parties are resident, which she contends will establish that she is, as regards matrimonial misconduct, an innocent party in a marriage which was brought to an end by the unreasonable behaviour of the husband.

39. She will not be able to be vindicated in this way by the court in the place where the parties live and work if the husband is allowed to continue and conclude the Australian proceedings.

40. The most substantial single family "asset" is the husband's income. Hong Kong is the residence of both parties and the husband's income is almost wholly earned in Hong Kong. Given the above, Hong Kong is clearly the forum in which questions as to maintenance can be best determined. If the wife is given an order for permanent maintenance which has a continuing effect, and some such order may well be made, Hong Kong would clearly be the place where applications for variation could be best determined for, if such an order were made in Australia, the parties would have to return thereto when any application for variation was made.

41. The wife is presently required to bear her part of the mounting costs of the dual proceedings and will have to continue to do so if no order is made. The wife's unchallenged statement is that her costs of the dual proceedings had reached $350,000, before the commencement of this application and of the appeal in Australia. The wife has no gainful occupation whereas the husband has a large, and continuing income. The Australian courts do not generally make an order for costs in matrimonial proceedings.

42. There is evidence that the matrimonial discord has effected the wife's health and that she suffers further stress because of additional worries that arise out of the dual proceedings. This may be so but I do not think any real weight can be given to this aspect of the matter in the critical equation.

43. A substantial issue was made by the wife's counsel of the suggestion that the Australian courts would not be able to deal in a comprehensive way with the various trusts which the husband has set up some of which are not in Australia. In the outcome both the value of these trusts and the constraints, if any, which would inhibit the Australian courts when dealing with them were left unclear. That being so I have not felt that I could properly throw this matter into the critical equation.

44. Having placed the above matters, except for those two as to which I have indicated reservations, into the critical equation am I satisfied that the wife will suffer injustice in her action if relief is not granted? Taking "into account the relative advantages and disadvantages to each of them: not only the juridical advantages and disadvantages, but also the personal convenience and inconveniences: not only the personal interests of the parties but also the public interests involved" I am satisfied that the wife will suffer injustice and I, therefore, accede to her request and order that the husband be stayed from proceedings to such a dissolution of the marriage in Australia.

45. I direct also that wife is to proceed no further with proceedings she has instituted in Australia.

46. By the making of this order I have not intended and I hope I have not conveyed any disrespect to the Australian courts. The appeal proceedings presently in train will, of course, be concluded in the normal way by the Appellate Court and both parties are at liberty to appear in those proceedings for the purpose of receiving judgment and making submissions with regard to costs.

47. I am informed that wife wishes to reopen those proceedings and to make further submissions therein. Subject, of course, to hearing being granted by the Appellate Court, she is at liberty so to do and husband is at liberty to appear and answer those submissions.

48. Both parties are to be at liberty to make applications for such adjournments as may be necessary in the Australian proceedings and to exhibit this decision in any such applications.

(N.P. Power)

Judge of the High Court

(1) (1978) AC 795

(2) (1974) AC 436.

(3) (1981) 1 All E.R. 725

(4) (1977) 7 Fam. Law 244

(5) (1981) 11 Fam. Law 85

(6) (1979) AC 210

(7) (1983) 3 WLR 173

(8) (1983) 3 WLR 545

(9) (1883) 24 Ch. D. 531

(10) (1981) AC 557

(11) (1936) 1 K.B. 382

(12) (1978) AC 795

(13) (1983) 2 All E.R. 72

Representation:

Mr. Rodway, Q.C. and Mrs. Pennington (instructed by Hampton, Winter & Glynn) for Petitioner.

Miss J. Leong (instructed by Helen A. Lo & Co.) for 1st Respondent.