Case Detail

FCMC 5954/2012

[2019] HKFC 217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5954 OF 2012

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BETWEEN
	F	Petitioner
and
	C	Respondent

----------------------------

Coram : Deputy District Judge D. Cheung in Chambers (Not open to public)

Date of Submission of the Petitioner : 20^th May 2019 and 17^th July 2019

Date of Submission of the Respondent : 3^rd June 2019 and 3^rd July 2019

Date of Ruling : 20^th August 2019 (paper disposal)

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RULING

( Leave to Appeal )

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The application

1. The Wife by Summons dated 16^th May 2019 (“the application”) sought leave to appeal out of time against my decision dated 13^th December 2018 (“the decision”) granting the Husband leave to apply for ancillary relief against the Wife. The Husband opposed the application.

Proposed grounds of appeal

2. In essence, the Wife says that I was wrong in granting leave to the Husband to apply for ancillary relief against the Wife. She sets out 3 proposed grounds of appeal in her draft Notice of Appeal as follows:

（1）That my decision is irrational and/or wrong as a matter of law because no reasonable Judge having accepted the evidence of the Husband would have proceeded to grant leave pursuant to Rule 68(2) MCR (“Ground 1”);
（2）That I fail to consider or sufficiently consider whether the attorneys allegedly acting on behalf of the Husband could lawfully rely on the Power of Attorney dated 18^th March 2016 to prosecute the proceedings on behalf of the Husband (“Ground 2”); and
（3）That my decision was made in the absence of material information, possessed only by the attorneys which they failed to disclose, concerning the capacity of the attorneys to act for the Husband (“Ground 3”).

3. The application is out of time. It is submitted by the Wife that the Court has a discretion to grant leave to appeal out of time, considering the following factors : (1) length of delay; (2) reason(s) for delay; (3) prospect of success of the intended appeal; and (4) whether the grant of leave to appeal out of time would cause prejudice to the opposite party.

4. In the following discussion, I shall first deal with the prospect of success of the intended appeal before I deal with the other 3 factors.

ApplicableLegal Principle

5. Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

6. The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that the applicant has an arguable case with reasonable chance of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

7. The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly. Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

The 1^st Ground of Appeal

8. In the skeleton submission for the Wife, it stated that the decision to grant leave to apply for ancillary relief is directly at odds with the finding of fact that the Husband did not consent to the divorce and there was no separation prior to the grant of decree of divorce. While the evidence was adduced to provide an explanation of the question of delay in the Husband’s application, such evidence was accepted by and relied on by the Court in granting leave. In other words, the Court accepted that there was evidence that suggested the divorce was obtained in circumstances that would at the least give rise to doubt on its validity.

9. The main complaint of the Wife under this ground of Appeal suggested that no reasonable Judge would have exercised his discretion to grant leave to apply for ancillary relief without further enquiry and when the divorce, on which such ancillary relief application is necessarily premised, was obtained unlawfully.

10. In the Husband’s submission, it was submitted that a party seeking ancillary relief not made in a petition must obtain leave from the Court, and in so doing, satisfy the Court as to (1) why there was an omission of the ancillary relief claimed; (2) whether there has been undue delay; and (3) whether the application has a seriously arguable case.

11. The Husband submitted that he was unaware of the details of the Consent Summons, thus he did not claim certain elements of ancillary relief under his Form 4, and evidence on this point was submitted only for the purpose of satisfying the Court as to the reason for the omission in the petition, not to argue a case that the divorce had been obtained through fraud/misrepresentation or that the Consent Order should be set aside.

12. In the decision, I accepted the Husband’s explanation as to why he was unaware of the details of the Consent Summons (§§28-45), and I found that there is evidence to support the Husband’s explanation as to why he did not claim any ancillary relief in his Form 4.

13. The Husband’s case is that the parties only separated in 2016 when the husband moved to England instead of January 2011, and the Husband suggested that the divorce was obtained unlawfully and liable to be set aside, however, the Husband was not going to set aside the divorce.

14. My view is that if the Husband is not intending to keep the marriage, there is no need for him to set aside the divorce. To the Husband, the only remaining issue is just the ancillary relief, and this is why the Husband sought leave to apply for ancillary relief if it had never been resolved.

15. As to the differences of the date of separation, this issue will be re-visited and considered when the issue of ancillary relief is determined. By that time, the differences of the date of separation contested by the parties will be heard and determined.

16. Due to the above analysis, I cannot see any reasonable prospect of success in relation to Ground 1 of the intended appeal.

The 2^nd and 3^rd Ground of Appeal

17. I shall deal with the 2^nd Ground and the 3^rd Ground of Appeal together, because the main issue to be determined is the health of the Husband.

18. Whether these 2 grounds of appeal can be successfully established is closely connected to the issue of whether fresh or further evidence from the Husband should be admitted. The issues can be conveniently and sufficiently covered under the following sub-headings.

The law on admission of fresh/further evidence

19. Having read the written submission of both parties, I am of the view that the following represent a brief summary of the relevant legal principles on admission of fresh or further evidence in the case of an appeal.

20. Order 59 rule 10(2) of the Rules of High Court provides that the Court of Appeal shall have the power to receive further evidence on question of fact:

“The Court of Appeal shall have power to receive further evidence on question of fact, either by oral examination in court, by affidavit, or by disposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of trial or hearing) shall be admitted except on special grounds.”

21. It is trite law that the Ladd v Marshall conditions apply to all appeals, and the Court of Appeal adopts a strict approach in applying Ladd v Marshall [1954] 1 WLR 1489 because:

“when a litigant has obtained a judgment in a court of justice…he is by law entitled not to be deprived of that judgment without very solid grounds.” (Brown v Dean [1910] AC 373 at 374 per Lord Loreburn LC)

(See also: Hong Kong Civil Procedures (2018) at §59/10/8 at p1167)

22. Under Ladd v Marshall (supra), the applying party must satisfy 3 conditions, namely:

(1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial;
(2) the evidence must be such that, if given, it would probably have an important influence in the result of the case, though it need not be decisive; and

(3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

23. Fresh or further evidence may be adduced on the “otherwise” situation, under which the applying party has to satisfy the court that (See: Hong Kong Civil Procedures (2019) at §59/10/8):

(1) it is one of the exceptional cases where the Ladd v Marshall conditions do not apply, or apply only in modified form; or
(2) the evidence relates to matters which have occurred after the date of trial or hearing.

24. The Wife submitted that the Husband relied on the principles of Ladd v Marshall purporting that a letter dated 31^st May 2019 from one Dr. Gascoigne of St Francis Hospice (“the 31^st May 2019 report”), should be admitted and considered by the Court for the purpose of considering the Wife’s application for leave to appeal out of time.

25. The Wife argued that the general rule is that new evidence must satisfy all three limbs of the Ladd v Marshall test before it can be considered by the Court at this stage, unless it falls within any of the recognized exceptions to this general rule, and the Husband’s new evidence does not fall within any of those recognized exceptions, therefore he must satisfy the Ladd v Marshall test.

26. The Wife complained that it clearly does not satisfy the first limb of the Ladd v Marshall test in that it clearly could have been obtained on or before the 4^th December 2018 hearing with reasonable diligence.

27. The Wife submitted that the 10^th May 2018 report (“10^th May 2018 report”) was considered by the Court before granting leave on 13^th December 2018 for the purpose of considering the Husband’s medical condition for the hearing on 4^th December 2018.

28. The Wife complained that the 3^rd December 2018 report clearly set out the most relevant and up-to-date assessment of the Husband’s medical condition for the 4^th December 2018 hearing, and clearly should have been put before the Court for consideration prior to the granting of leave on 13^th December 2018 but was not, and without any explanation as to the delay when the report was already available on the day of or shortly after the hearing.

29. In the skeleton submissions for the Wife, it was submitted that I had failed to consider or sufficiently consider whether those prosecuting the application purportedly on behalf of the Husband could lawfully rely on the Power of Attorney dated 18^th March 2016 (“the Power of Attorney”) to do so.

30. It was submitted that the doctor reports set out in no uncertain terms that by 2^nd January 2018 onwards, the Husband was no longer able to communicate with his attorneys.

31. Pursuant to s.1A(1)(b) of the Power of Attorney Ordinance (Cap 31) and s.2 of the Mental Health Ordinance (Cap 136), the Power of Attorney ceases to be effective for any purpose, upon a person becoming mentally incapable or incapacitated, which includes the inability of the donor of the power “to communicate with any other person who has made a reasonable effort to understand him, any intention or wish to grant a power of attorney.”

32. It was submitted that there was evidence before me that the Husband was mentally incapable or incapacitated, in particular including being unable to communicate with any other persons including his attorneys and solicitors despite their reasonable efforts to understand him, his intention and wishes, and that want of authority is plainly a fundamental matter.

33. It was further submitted that the Husband’s attorneys disclosed, for the first time on 16^th April 2019, an Enduring Power of Attorney executed by the Husband on 18^th March 2016 (“Enduring Power of Attorney”), and the grant of leave was made in the absence of material information possessed only by the attorneys and not disclosed even at the hearing, concerning the capacity of the attorneys to act for the Husband.

34. The Wife argued that the decision made in the absence of material information as to the Enduring Power of Attorney was unlawful in that (i) on 18^th March 2016 they were appointed as attorneys pursuant to both a general power of attorney and enduring power of attorney; (ii) the general power of attorney ceased to have effect due to the inability of the Husband to communicate; and (iii) at the time of the leave hearing, the Enduring Power of Attorney was not registered and the attorneys had no lawful authority to continue acting on behalf of the Husband until such time as they comply with ss. 4(3) and 9 of the Enduring Powers of Attorney Ordinance (Cap 501).

35. Section 4(2) of the Enduring Powers of Attorney Ordinance provides that “If the attorney has reason to believe that the donor is or is becoming mentally incapable, he must, as soon as practicable, apply under section 9 for registration of the Enduring Power of Attorney, and section 4(3) provides that “In the event of the subsequent mental incapacity of the donor, the attorney shall not do anything under the authority of the power unless or until it is registered.

36. The Wife submitted that the Court will recall that it was previously deposed or opined in evidence filed on behalf of the Husband for the hearing on 4^th December 2018 that the Husband “is not in a physical condition to speak nor hear anything”, “he could not move his muscles”, “he is unable to communicate normally by speech”; he is at times “confused” and “his speech is extremely poor and unintelligible”.

37. The Husband submitted that the Wife recently and belatedly took issue with status of the Power of Attorney by arguing that the Husband had not been mentally capable of giving instructions to the Attorneys to conduct these proceedings.

38. Notice of revocation of previous Power of Attorney was given to the Wife on 18^th March 2016 and was received and signed by the Wife on 23^rd March 2016. The Wife did not take issue with the Power of Attorney at that point in time.

39. In April 2017, the Wife then started that she was going to challenge the execution and validity of the Power of Attorney but this was never pursued.

40. For more than 2 years after the Wife received the Notice of Revocation of the previous Power of Attorney granted to the Wife and more than a year after the Wife informed in writing that she would challenge the execution and validity of the Power of Attorney, the Wife at no point raised this issue prior to the hearing on 4^th December 2018.

41. In the decision, I was satisfied that the Wife was aware of the hearing date and chose not to attend the leave application hearing, I therefore heard the leave application in the absence of the Wife.

42. In the 10^th May 2018 report, it was stated that the Husband was terminally ill with multiple sclerosis and required all care, and that he was unable to read, write or care for himself in any way at all and was unable to communicate normally by speech.

43. I do not find that the disabilities of the power to communicate normally by speech is equivalent to becoming mentally incapable or incapacitated.

44. During the leave application hearing, I was satisfied that despite of the physical disabilities of the Husband, there is no issue of disabilities of his mental capacity.

45. Now that the Wife had raised the mental capacity as an issue, the Husband and the Attorneys sought to adduce further evidence directly addressing the Husband’s mental capacity, namely the 31^st May 2019 report. The Husband submitted that this was clearly not in existence at the time of the hearing on 4^th December 2018.

46. It was submitted by the Husband that the first limb of Ladd v Marshall is not whether or not the evidence was in fact available, but whether a party acting with reasonable care could have anticipated the need to call the relevant evidence.

47. Phipson on Evidence (19^th Edition) at 13-07 stated that the test is not whether or not the evidence was in fact available, but whether a party acting with reasonable care have anticipated the need to call the relevant evidence.

48. The Husband had provided the 10^th May 2018 report to the Court before the leave application hearing, and there is no issue of mental disabilities which may affect the validity of the Power of Attorney.

49. Those who acted for the Husband is under a duty to inform the Court if there is a change of circumstances related to the mental capacity of the Husband even though the Wife was absent during the leave application hearing.

50. At the leave application hearing, I do not find that the Husband had lost his mental capacity albeit he was suffering from physical disabilities.

51. Now the Wife complained that by reference to the disabilities suffered by the Husband, the Husband had lost his mental abilities. This is how the Wife interpreted the content of the various medical reports of the Husband.

52. My view is that the complaint of the Wife needed to be addressed by the Husband directly now but not at the time of the leave application hearing when the exact complaint of the Wife had never been articulated.

53. By reason of the aforesaid, I find that acting with reasonable care, those who acted for the Husband and the Husband could not have anticipated the need to call the relevant evidence required to address the issue raised by the Wife now. I therefore find that the first limb of Ladd v Marshall is satisfied.

54. I also accept that the 2^nd and 3^rd limb in Ladd v Marshall are satisfied. The 31^st May 2019 report stated that as one of the Specialty Doctors at the Hospice of St Francis where the Husband was cared for during his admission with them from December 2018 to February 2019, the Medical and Nursing Teams were able to communicate with the Husband effectively about all aspects of his care and treatment.

55. The 31^st May report also stated that the Husband was able to communicate his decision unequivocally via a combination of verbal and non-verbal means such as body language, nodding, shaking his head and using his eyes to indicate agreement or disagreement with what was being proposed or discussed.

56. I found that the said evidence would have an important influence on the evaluation of the Wife’s late challenge to the mental capacity of the Husband, as it covered the relevant period in question and address the area that were being contested.

57. I further find that it is credible by reason of the abilities of the author to give direct and relevant evidence and also of the professional status of the author to give the said evidence.

58. I therefore find that leave should be given to the Husband to adduce further evidence, namely the 31^st May 2019 report in its consideration of the Wife’s application for leave to appeal out of time.

59. As I had mentioned earlier, the 2^nd Ground and the 3^rd Ground of Appeal touched on the health of the Husband.

60. It was submitted that the Husband continued to retain the ability to communicate and was not mentally incapacitated as alleged by the Wife, and that the 31^st May 2018 report confirmed the Husband has the mental capacity to make decisions.

61. The Husband further submitted that the medical reports filed thus far made no reference to the Husband’s mental incapacity, only that he was now in the final stages of his MS, which has had repercussions upon his physical capacities.

62. The Husband complained that the Wife only referenced to selected phrases from the medical reports that support her arguments, and there are other reports that the Court should consider which provide a more balanced overview of the Husband’s current condition.

63. The Husband referred to the most recent letter from the Husband’s current doctors dated 31^st May 2019 exhibited to the 2^nd Affidavit of the Husband’s mother and attorney, confirmed the Husband’s ability to communicate and his mental capacity.

64. The Husband also submitted that since he was not mentally incapacitated at the time of the leave hearing, nor is he at present, there has been no need for the Attorneys to register or rely on the Enduring Power of Attorney.

65. At the leave application hearing, I did not find that there was evidence before me that the Husband was mentally incapable or incapacitated.

66. The 31^st May 2019 report clearly address the issue raised by the Wife. Due to the above analysis, I cannot see any reasonable prospect of success in relation to Ground 2 of the intended appeal.

67. The Enduring Power of Attorney was not relied on by those who acted for the Husband at the leave application hearing. If the validity of the Power of Attorney is not affected at the leave application hearing, I cannot see why failing to disclose the Enduring Power of Attorney to the Court at the time of leave application hearing would affect the decision.

68. I, therefore, cannot see any reasonable prospect of success in relation to Ground 3 of the intended appeal.

69. Having considered the matters set out above, I am not satisfied that the Wife would have a reasonable prospect of success in all her proposed grounds of appeal described above.

70. I also do not find that there is “some other reasons” that the appeal should be allowed to be heard.

71. Consequently, the application for leave to appeal is denied.

72. I also see no reason why I should exercise my discretion to grant leave to appeal out of time, as I am not satisfied that the Wife would have a reasonable prospect of success in all her proposed grounds of appeal described above.

73. Apart from the aforesaid reason, there is a delay of 5 months to launch an appeal. The reason provided by the Wife is that she is formally diagnosed with severe Major Depression Disorder.

74. The psychiatrist opined that the Wife failed to recognise her illness over the years. It is submitted that her condition affected her ability to handle the responsibilities and pressures of legal proceedings.

75. The psychiatrist also opined that the avoidance behaviour she exhibited, including avoidance of facing legal proceedings, is common for people who suffered from similar psychiatric condition.

76. The Wife appeared with her solicitors and Counsel at a hearing on 7^th January 2019, since then she is legally represented again.

77. The avoidance behaviour she exhibited including avoidance of facing legal proceedings as opined by her psychiatric cannot be an excuse for her not to appeal in time because in April 2017, the Wife stated that she was going to challenge the execution and validity of the Power of Attorney and this was set out in the letter from her former own firm of solicitors of which she was a senior partner at that time dated 7^th April 2017 and at a hearing on 7^th January 2019, she still failed to raise the issue of her challenge to the Power of Attorney or the mental capacity of the Husband.

78. I see no reason why she cannot appeal in time with the 1^st Ground and the 2^nd Ground of the intended appeal after she decided to be legally represented again and appeared with counsel.

79. The Husband submitted that the Wife’s belated attempt to raise the issue of the status of the Power of Attorney must be seen in the context of her deliberate avoidance of the Court process.

80. My view is that the delay by the Wife in launching the appeal will cause substantial prejudice to the Husband.

81. In view of the aforesaid, I therefore will not exercise my discretion to grant leave to appeal out of time.

Conclusion

82. Unsuccessful applications for leave to appeal are usually visited with costs orders. I would therefore order that the Wife do bear the Husband costs of the application to be taxed if not agreed.

83. This is a costs order nisi, to be made absolute within 14 days from today.

	David CW Cheung
	Deputy District Judge

Representation:

Mr. Earl Deng and Ms. Isabel Tam instructed by JCC Cheung & Co. for the Petitioner

Mr. Robin Egerton and Ms. Madeleine Booth instructed by Oldham, Li & Nie for the Respondent

FCMC 5954/2012

[2018] HKFC 227

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5954 OF 2012

________________________

BETWEEN

	F	Petitioner
	and
	C	Respondent

________________________

Coram:

Deputy District Judge D. Cheung in Chambers (not open to public)

Date of hearing:	4^th December 2018
Date of handing down decision:	13^th December 2018

________________________

RULING
(Leave to apply for ancillary relief)

________________________

Introduction

1. This is the husband’s application for leave to apply for ancillary relief against the wife after the parties’ divorce for 4 years 7 months.

Background

2. The husband and the wife got married in 1995. They have a daughter (“the daughter”) and is now 20 years old and currently attending University education. The husband was diagnosed with Multiple Sclerosis (“MS”) since 1996 and is unemployed due to his disability resulting from MS.

3. On 30^th April 2012, the wife presented the Petition for divorce on the ground of one-year separation with consent. The wife was represented by a Solicitors firm of who she was one of the partners (“wife’s firm”).

4. On 9^th May 2012, the wife through the wife’s firm prepared the Consent Summons (“Consent Summons”) and the husband and the wife subsequently signed the Consent Summons which was made an order of the Court (“Consent Order”) upon the granting of the Decree Nisi.

5. The Decree Nisi was pronounced on 19^th July 2012 and the Decree absolute was pronounced on 17^th December 2012.

6. The husband was not legally represented prior to the divorce absolute being granted, and the divorce proceedings went through quickly.

7. Under the Consent Order, it is ordered that :-

（1） Custody, care and control of the daughter be granted to the husband with reasonable access to the wife;
（2） The wife shall pay the husband periodical payments in the sum of $43,000 per month being the monthly maintenance for the husband, payable commencing on the Decree Absolute to be made and thereafter on the 1^st day of each and every succeeding month during the joint lives of the parties or until the husband’s remarriage, whichever is the shorter;

（3） The wife shall pay the husband the sum of $12,000 per month being the maintenance for the daughter, payable commencing on the Decree Absolute to be made and thereafter on or before the 1^st day of each succeeding month until the daughter attains the age of 18 or completes full-time education whichever is later.

8. Apart from the aforesaid order being made in the Consent Order, no order had been made related to the distribution of the family assets.

9. The husband was legally represented later and solicitors for the husband filed the Notice to Act on 28^th October 2016 together with praecipe for issue of Judgment Summons dated of the even date.

10. Until 9^th May 2017, the wife was represented by the wife’s firm, and she filed Notice of Intention to act in person on 9^th May 2017 in place of the wife’s firm. The address for service is a property at Bel-Air (“the Bel-Air property”).

11. Subsequent to 9^th May 2017, the relevant orders and correspondence have been sent to the Bel-Air property, and the wife was absent at the hearing all along.

12. On 2^nd August 2018, I had given direction to the parties for the preparation of the hearing of the Summons dated 15^th May 2018 (“the Summons”) and the hearing of the Summons was fixed on 4^th December 2018 for argument.

13. On 4^th December 2018, the wife was again absent at the hearing. After hearing the submission made by the counsel for the husband and upon reading various affirmations of service, I am satisfied that the wife was aware of the hearing date and chose not to attend the hearing, I therefore heard the argument and proceeded with the hearing in the absence of the wife.

The husband’s Application

14. By the Summons, the husband seeks leave to proceed with his application for ancillary relief in his Form 25 dated 28^th February 2017, 21^st August 2017 and 28^th March 2018 which included all he can ask for under Form 25.

15. In Form 25 dated 21^st August 2017 and 28^th March 2018 respectively, the husband specifically asked for a transfer/sale of property order of the Bel-Air Property, Shatin Property (“Shatin Property”) and Caine Road Property (“Caine Road Property”).

16. It is not disputed by the husband that leave from the Court is not required for those application related to the variation of maintenance of the daughter and himself, and that only the remaining matters related to ancillary relief between the husband and the wife that he had indicated not to ask for in his Form 4 required leave from the Court.

Applicable legal principles

17. Section 6 of the Matrimonial Proceedings and Property Ordinance (“MPPO”) sets out the powers of this Court to make orders for ancillary relief for a party to a marriage, on granting a decree of divorce, a decree of nullity or marriage or a decree of judicial separation or at any time thereafter.

18. The statutory basis for the husband’s application is Rule 68(2)(a) of Matrimonial Causes Rules (“MCR”) which is as follows :

“68.  Application by petitioner or respondent for ancillary relief
(1)  Any application by a petitioner, or by a respondent spouse who files an answer claiming relief, for—
(a)  an order for maintenance pending suit;
(b)  a periodical payments order;
(c)  a secured periodical payments order;
(d)  a lump sum order;
(e)  a settlement of property order;
(f)  a transfer of property order;
(g)  a variation of settlement order;
shall be made in the petition or answer, as the case may be.
(2)  Notwithstanding anything in paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently—
(a)  by leave of the court, either by notice in Form 8 or at the trial; or
(b)  where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 8.
(3)  An application by a petitioner or respondent spouse for ancillary relief, not being an application which is required to be made in the petition or answer, shall be made by notice in Form 8. “

19. Rule 68(1) provides that if a respondent (i.e. the husband in this case) has filed an answer in the suit, it is imperative for the respondent to state his claim for ancillary relief in the answer.

20. If he shall fail to do so, then Rule 68(2) will come into play in that the respondent will only be allowed to file a notice of application for ancillary if :

(a) he either obtains leave from the court to do so; or
(b) he has to get the consent of the other party.

21. The husband had filed Form 4 dated 8^th May 2012 which stated that he did not intend to defend the proceedings, consents to a decree based on one year’s separation, does not intend to apply to court to consider his financial position pursuant to a Rule 56B application and intends to apply for custody, maintenance and child maintenance only and not capital such as lump sum and property transfer which is a mirror of the proposed relief in the Petition.

22. The husband signed the Form 4 and was unpresented at the time, and the husband disputed that he understood the terms of the Consent Summons and had been advised to obtain independent legal advice.

23. Since the husband did not make any application for ancillary relief at the time which he should have been made in the answer, according to the aforesaid statutory provisions, leave from the Court is required for the husband to make a fresh ancillary relief application.

24. The jurisdiction to make orders for ancillary relief is not limited by time, as there is no statutory time limit on when an application for ancillary relief has to be made, and it is a matter for the Court to exercise its discretion.

25. In relation to the principles on which leave is granted, in Marsden v Marsden 1973 2 All ER 851, it was held that a reason or explanation must be given for the omission of the ancillary relief claim from a petition.

26. However, the Court ought not to refuse leave to apply in any case in which on evidence the applicant has or appears to have reasonable prospects of obtaining the relief claimed, or to put it another way, has a seriously arguable case.

The Issues

27. In my view, the following are the main issues to be determined:

(1)  whether the husband has given a reason or explanation for the omission of his present claim for ancillary relief in Form 25;
(2)  whether there has been unjustifiable delay;
(3)  whether the husband has or appears to have reasonable prospects of obtaining the relief, namely whether he has a seriously arguable case.

Discussion

Whether the husband has given a reason or explanation for the omission of his present claim for ancillary relief in Form 25

28. The husband’s case is that the parties only separated in 2016 when the husband moved to England and the wife’s statements in her Petition and Form 21(4) stated that they had separated in January 2011 are untrue, and the actual date of separation according to the husband’s case was March 2016.

29. The husband stated that his Form 4 was typed and in his Form 4, it was stated that the husband received the Petition on 8^th May 2012 at the Bel-Air property one day before the husband allegedly filed and typed his Form 4.

30. The husband submitted that he was diagnosed with MS 9 months after the marriage in 1996 and received a serious MS attack and he was in a wheelchair since 2003, his Form 4 was not prepared by the husband and in fact the husband did not have any opportunity to seek legal advice when the Consent Summons presented to him.

31. The husband’s case is that he was not aware of the separation nor aware of the nature of the document prepared for him to sign at the time or subsequently.

32. It was submitted that despite the fact that the husband was granted custody, care and control of the child pursuant to the Consent Order, the parties and the child continued to live together as a family until June 2015.

33. The husband’s case is that there was no separation, the family was still living together as one family all along, and he did not know or consider he was divorced, and there was no re-conciliation between the parties because they were never separated, and the husband was not even aware that he was allegedly divorce.

34. Counsel for the husband referred me to the letter dated 15^th December 2016 from the wife’s firm and also the letter from the wife dated 15^th December 2016.

35. According to the said letters, the wife’ firm stated that a sum of HK43,000 will be paid by the wife each month and used for the expenses of the daily living and medical care and the outgoings of the residence at Bel-Air property.

36. It was stated that after the divorce, the wife re-conciliated and they were living at Bel-Air property and that the wife had no intention to separate from the husband, and the parties even plan to move to live in the U.K. in September 2017 with their daughter, but the husband returned to U.K. in March 2016 without notifying the wife.

37. The wife in her aforesaid letter also stated that she did not know what make the husband suddenly decide to go to England, and the husband always obey to her in the past and always believed she can make good decisions, and the husband listen to her and obey to her.

38. The wife also stated that in the Deed, the HK$43,000 maintenance fee is meant for paying the home expenses, not the husband’s pocket money.

39. She further stated that they could all go together when the daughter was studying in England and by that time they could rent out Bel-Air so that they could use the money to cover the rent and expenses in England, and that was their plan.

40. In the affirmation in support of the Judgment Summons against the wife, it was stated that the wife failed to pay the maintenance pursuant to the Consent Order to the husband since 1^st January 2013 i.e. immediately after the Decree absolute being granted.

41. My view is that based on the aforesaid facts and circumstances, I found the husband explanation and version convincing. I also found that to a certain extent, the contents of the letters of the wife’s firm and the wife that I referred to supported the husband’ case.

42. Counsel for the husband also submitted that it is also clear that the contents of the Consent Summons and Consent Order did not include any clause dismissing either parties’ claims.

43. According to the contents of the wife’s letter, the wife also stated their plan as to how to use the Bel-Air property to generate income for the parties’ future expenses.

44. I am of the view that the husband had not “lulled” the wife into the belief that all claims had already been dealt with by the Consent Summons. In particular, the Consent Summons was prepared by the wife’s firm and the wife as a solicitor and the senior partner of the wife’s firm is in a better position than the husband in understanding the terms of the Consent Summons.

45. I am of the view that there is evidence to support the husband explanation why he did not claim any ancillary relief in his Form 4.

Whether there has been unjustifiable delay

46. There is no disclosure of financial information of the wife in her From E before and after the divorce, and that the wife stated in her letter that after the divorce and prior to the husband departure to England in 2016, the parties were still on friendly terms and lived together.

47. In addition, the husband and the wife had not re-married, and by reason of the husband explanation which I had accepted, I do not consider that the husband had caused any unjustifiable delay in the present case.

48. Further, even if there is delay, the effect of delay does not go to jurisdiction, but to the exercise of discretion and it is one of the circumstances this Court would have to take into account under s. 7 of MPPO, and if there is any delay in this case, it can be considered during the hearing for ancillary relief, if leave is granted.

49. My view is that there is no evidence that circumstances have so changed as to make the relief claimed inappropriate, or that it would be oppressive to grant leave.

Whether the husband has or appears to have reasonable prospects of obtaining the relief, namely whether he has a seriously arguable case

50. I now consider whether the husband has or appears to have reasonable prospects of his present claims being made in his favour.

51. What is clear to me is that the Consent Order was clearly not a comprehensive settlement of all the financial matters between the parties. There was no dismissal of both parties’ claims for any property adjustment orders and/or lump sums orders in the Consent Order.

52. According to the land search of the Bel-Air property and Caine Road property, these two properties were purchased in October 2004 and September 2007 respectively.

53. These two properties were held by a limited company (“the company”) in which the husband held 9,999 shares and the wife held 1share and the wife’s mother held the remaining 40,000 shares.

54. The husband and the wife’s mother are directors of the said company. On the face of these documents, the wife only retained minimal interest and had no control of the company.

55. According to the Form E of the husband, he stated that he had 50% interest of the company and this would mean that the husband is going to challenge the beneficial ownership of the shares of the company held by the wife’s mother.

56. According to the land search of these two properties, these two properties were purchased with no bank financing required at the time of the purchase.

57. The wife was a practising solicitor and a partner of the wife’s firm all along, the funding of the purchase of the two properties will be one of the issues to be determined and also the beneficial interest of the wife’s mother’s shares of the company.

58. My observation is that couple with the evading attitude of the wife to disclose her financial information, the wife’s nominal interest in the company appeared to be inconsistent to the earing capacity and the social status of the wife.

59. Given the fact that this is a long marriage between the parties and the needs of the husband because of his serious medical condition, I found that the husband has a seriously arguable case that he should be entitled to a fair share of the family assets and not as it appeared to be on paper now.

Conclusion

60. Accordingly, I grant the husband leave to apply for ancillary relief as set out in his Form 25 dated 28^th February 2017, 21^st August 2017 and 28^th March 2018.

61. Because of the circumstances of the case and the evading attitude of the wife in the husband’s application, I will order that the wife do pay the husband’s costs of and incidental to the Summons dated 15^th May 2018 to be taxed if not agreed with Counsel certificate. This is an order nisi, such order to be made absolute upon the expiration of 14 days.

62. I will further direct that a 1^st Appointment hearing be fixed on 7^th day of January 2019 at Court 40 at 2:30 p.m. and both parties do attend personally at the said hearing.

	David C. W. Cheung
	Deputy District Judge

Representation:

The Petitioner acted in person and absent in the hearing

Mr. Robin Egerton instructed by Oldham, Li & Nie for the Respondent

F v. C

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