KJA v. KYSH formerly known as YSH

FCMC 4456/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO.4456 OF 2013

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DCMP 1127/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.1127 OF 2017

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DECISION

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1.  There are 3 sets of costs in the captioned 2 proceedings for me to decide. This is a timely reminder to practitioners of what one should do in taxation after aided client had passed away.

The background

2.  In Dec 2012, legal aid certificate (the LA certificate) was granted to the petitioner husband to carry out the captioned matrimonial proceedings (thefamilyproceedings) with Ms Anne Hui (Ms Hui) of Messrs. Wong, Hui & Co. (WH&C) assigned as his solicitor. The respondent wife was represented therein by Messrs. Cheung Wong & Associates (CW&A).

3.  On 7 Aug 2015, the petitioner passed away. 3 days later, WH&C filed notice of abatement of cause in the family proceedings addressed to CW&A (the abatement notice).

4.  On 14 Aug 2015, the LA certificate was discharged by the Director of Legal Aid (the director) and a notice of discharge was filed in the family proceedings addressed to WH&C and CW&A (the notice of discharge).

5.  More than 1 year later, WH&C signed a notice of commencement of taxation in the family proceedings addressed to the director (the NOCT) as “former solicitors for the petitioner, deceased (italics added)”, and filed the NOCT, on 1 Dec 2016. On the same date, WH&C also filed a Bill of Costs therein addressed to the director (the Bill) signed by it in the same manner.

6.  At p.1 recital of the NOCT and p.1 recital of the Bill, WH&C indicated respectively that it “had commenced taxation by filing [the Bill]”, and “the Petitioner’s own costs” “against [the director] (italics supplied)” is to be taxed, pursuant to 8 costs orders made by HH Judge Melloy from Aug 2013 to June 2015, pursuant to Reg.9 of Legal Aid Regulations, Cap.91A (the regulations), upon the abatement notice and upon the notice of discharge.

7.  The Bill, having 206 items in total, comes up to $1.4M odd and is divided into 2 parts, each totaling $700K odd. In each part, section A is solicitor profit costs, section B is disbursement and section C is costs of taxation. Part 2 makes it clear that it is on “common fund” (CF) basis but Part 1 is silent on this matter. At a summary found at its 2^nd last page, the “receiving party” was stated to be “WH&C (as the former solicitors for the deceased Petitioner) (italics supplied)”.

8.  The NOCT required list of objections (LOO) to be filed and served within 28 days of its service and stating the said deadline to be on or before 29 Dec 2016, failing which directions may be sought to have the Bill taxed as drawn with costs of taxation awarded against the opposite party.

9.  The NOCT further required any unnamed but interested party having financial interest in the outcome of the taxation to give notice in writing within 7 days of its service stating whether it intended to take part in the taxation proceedings or not, failing which such party shall not be entitled to take part in the taxation.

10.  By its letter dated 5 Dec 2016 copied to WH&C, Ms Leung Ping Ching Jenny, Senior Legal Aid Counsel (Ms Leung), on behalf of the director, wrote to court to give notice that the director will take part in CF taxation of the Bill as the petitioner had been legally aided in the family proceedings and he has a financial interest in the outcome of the taxation. Ms Leung also applied for leave to participate in party & party (P&P) taxation of the Bill if the respondent failed to file LOO within stipulated time.

11.  On 9 Dec 2016, this court informed the director noting his intention to take part in CF taxation of the Bill and required LOO to be filed by him within 21 days, and also said his application to participate in P&P taxation will be dealt with after time expired on 29 Dec 2016.

12.  On the same day, WH&C served the Bill on CW&A by its letter dated 8 Dec 2016 and expressed that it was so served because the respondent may have a financial interest in the outcome of taxation of Part 1 of the Bill in that the director will, it was said, enforce against the respondent.

13.  On 16 Dec 2016, CW&A wrote in a letter chopped “urgent” to WH&C putting on record that the Bill was only served on them on 9 Dec 2016, such that respondent had up to 5 Jan 2017 (i.e. 28 days from service of the Bill) and not 29 Dec 2016 as demanded in the Bill to file LOO. CW&A sought agreement of that with WH&C, saying that it would seek court directions if the same is not forthcoming.

14.  In the same letter, referring to p.1 recital of the Bill, CW&A asked WH&C to clarify “whether or not your client, [the director], is also seeking taxation of costs against our client under [the Bill]. If it should be the case that you are or you on behalf of [the director] is also seeking taxation of costs against our client under [the Bill], kindly: 1. apply for appropriate amendmentof [the Bill] 2. clarify which part of [the Bill] relates to P&P costs… (italics supplied)”. CW&A asked for reply by 19 Dec 2016 reminding that delay in reply will hinder its preparation of LOO, and reserved its right to seek time extension and costs if it is required to apply the same out of time.

15.  It was only by 20 Dec 2016 that WH&C replied CW&A’s letter dated 16 Dec 2016. Its letter reads: “we shall not take issue if your client’s [LOO] is filed and served on or before 5 Jan 2017. We are considering your suggestion that our Bill be amended. In the meantime, please be informed that the items claimed under Part 1 of our Bill relate to P&P costs. (italics supplied)”

16.  On 30 Dec 2016, the director, purportedly pursuant to order of this court made on 9 Dec 2017[1], filed a LOO covering every section and every part of the Bill. For Part 1 thereof, if all his objections are upheld, no costs will be allowed because, among others, the director raised that costs in Part 1 should not be paid by him but “should be paid by respondent” as they are P&P costs, P&P disbursement or P&P costs of taxation. The director in its grounds of objection also asked if Part 1 costs are on P&P or CF basis.

17.  On 5 Jan 2017, CW&A filed respondent’s LOO to the Bill addressed to WH&C, raising grounds of objection to items in all sections of Part 1 thereof. By its preliminary points, they sought clarification from petitioner which orders he relied on to seek taxation against respondent given p.1 recital thereof.

18.  On 25 Jan 2017, WH&C filed an application to set the Bill down for taxation addressed to the director and CW&A (as solicitors for respondent as an interested party) and signed as “solicitors for the petitioner (italics supplied)”. It was initially set down for call-over by way of paper disposal on 13 Apr 2017.

19.  On 7 Feb 2017, in a letter to this court copied to WH&C, CW&A referred to correspondences with WH&C seeking clarifications of the Bill and asked for directions regarding its ambiguity and whether or not respondent be heard/a party concerned in its taxation (saying that it did not receive notice of 13 Apr 2017 hearing from the court).

20.  On 22 Feb 2017, this court by notice to all parties concerned re-fixed the call-over to become an oral hearing on 20 Apr 2017 and required attendance of the petitioner, the respondent and the director to address this court.

21.  On 13 Apr 2017 i.e. a week before scheduled oral hearing before me, WH&C, as solicitors for the director, issued an originating summons in expedited form (OS) returnable before this court on 25 May 2017 in the captioned miscellaneous proceedings (MP action) by way of costs-only proceedings. And Ms Leung filed a supporting affidavit on the same day on behalf of the director.

22.  In the MP action, the director sought, inter alia, orders that 1) the respondent do pay him such amount to be taxed (unless agreed) in settlement of such costs order made by HH Judge Melloy in favour of petitioner in the family proceedings[2]; 2) Part 1 of the Bill in the family proceedings be deemed duly served on the respondent; 3) the MP action be consolidated with the family proceedings in so far taxation of the Bill is concerned; and 4) costs of this application be costs in the cause in P&P taxation of the family proceedings against respondent.

Directions given

23.  At the said oral call-over on 20 Apr 2017, after hearing the following suggested orders from Ms Hui and from Ms Leung, and with no objection from Ms Phyllis Wong of CW&A (Ms Wong) appearing for respondent, in the family proceedings, I gave

1) leave to the director to enforce P&P costs in his official title;

2) leave to the receiving party to make amendments to the Bill within 21 days; and

3) leave to the director and the paying party to make consequential amendment to their respective LOOs within 21 days thereafter.

And, in the MP action, I give/order: -

4) leave to the director to withdraw the OS; and

5) vacation of the hearing of the OS scheduled on 25 May 2017.

24.  My directions given in the family proceedings are based on reg.9(6A) of the regulations as interpreted by Master Roy Yu (Master Yu) in his unreported decision of Chan Sau Mui & another v To Cheong Lam, HCA 7415/1995, 4 Jul 2006, which decision was helpfully drawn to my attention by Ms Leung and Ms Hui.

25.  Reg. 9(6A) of the regulations reads: “The Director has the right to enforce an order of costs in favour of an aided person made in proceedings for which the Director has issued a certificate, whether the certificate has been discharged or revoked, and the Director may bring proceedings in his official name in a court of competent jurisdiction to recover the costs ordered (italic added)”. Master Yu interpreted the word of “enforce” widely to include the right of the director to take out taxation proceedings and I followed his decision.

26.  The problem before Master Yu is that a bill was presented by WH&C for legally-aided 1^st plaintiff and for 2^nd plaintiff to tax costs orders in favour of both plaintiffs against the defendant. But when the bill was issued, the 1^st plaintiff had passed away and WH&C acted upon instructions of 2^nd plaintiff and the director.

27.  Preliminary issue was thus taken of the right of the director to issue proceedings to tax costs orders in favour of 1^st plaintiff[3]against the defendant and Master Yu answered it in the positive by his interpretation of reg.9(6A).

28.  However, procedure-wise, to avail of reg.9(6A), Master Yu held, the taxation proceedings should be instituted in the official title of the director and not in the name of the deceased aided person.

29.  Before him, WH&C took out the bill in the name of 1^st and 2^nd plaintiffs, and not in the official title of the director. As 1^st plaintiff had passed away and cannot authorize the director or WH&C (i.e. his former solicitors) to institute taxation proceedings for him, WH&C cannot proceed with the bill on behalf of deceased 1^st plaintiff. The taxation of the bill of 1^st plaintiff was thus ordered by Master Yu to be adjourned sine die with liberty to restore.

30.  The alternative, said Master Yu, is for the director to seek consent from the relative of deceased 1^st plaintiff to continue the proceedings and to make application under O.15 of the Rules of High Court to appoint someone to represent the estate of deceased 1^st plaintiff. Absent such leave given under O.15, the taxation of the bill of the 1^st plaintiff cannot continue either.

Costs in dispute

31.  After I gave my directions above in the family proceedings and in the MP action, Ms Wong on behalf of respondent applied against WH&C (i.e. not against deceased petitioner it formerly acted for and, of course, the deceased petitioner was not represented before me) and/or the director for: -

1) costs of the hearing before me in the family proceedings;

2) costs of and occasioned by the amendments to the Bill in the family proceedings; and

3) costs of the MP action.

Submissions

32.  In gist, Ms Wong submitted that the respondent was misled to have incurred costs to prepare and file her LOO, was brought into the MP action and oral hearing before me, and, finally, was further required to incur more costs to make consequential amendments to her LOO all for failures of WH&C and/or the director to put their own houses of the taxation in the family proceedings in order in good time or at all before the said oral call-over before me.

33.  Ms Leung on behalf of the director resisted any costs order against the director. She did not seek costs against anyone and suggested that there be no order as to costs and/or that the costs of the MP action be in the cause of P&P costs in the family proceedings as the director prayed for in the OS.

34.  Ms Leung emphasized that there was throughout no fault on the part of the director at all.  The OS in the MP action was taken out in line with the procedure suggested by Master Yu in his decision of Chan Sau Mui, supra.

35.  Ms Hui of WH&C explained that her firm took out the Bill as instructed by the director in order solely to tax petitioner’s own costs against the director under the Regulations. She produced a copy letter dated 25 Aug 2016 from the director to WH&C saying, “we note that your bill involves P&P costs (against the Opposite Party) and common fund costs. Since you are the receiving party, you shall proceed with the taxation pursuant to O.62 r.21 and it does not matter whether Legal Aid Certificate was discharged or not. Please keep us informed of the taxation of your costs (italics supplied)”. As the director may seek to recover such taxed costs against the respondent, the Bill, said Ms Hui, was therefore also served on respondent as an interested party.

36.  It is, said Ms Hui, only after leave for amendments given by this court that recovery would be sought from the respondent for P&P costs. And, with amendments to the Bill allowed, WH&C may transfer some items from one part of the Bill to the other[4].

37.  Ms Hui did not seek costs against anyone and also suggested that there be no order as to costs. She emphasized that WH&C was not at fault either.

Discussion

38.  To start with, it is clear to me that WH&C had no authority, and could not have authority, from deceased petitioner or the director to issue, and file, the Bill (and the NOCT) on behalf of the deceased petitioner. Neither was there any suggestion of authority to WH&C or the director from relative of deceased petitioner before me.

39.  While it was said that WH&C only purported to tax deceased petitioner’s own costs against the director pursuant to reg.9 of the Regulations with itself as the “receiving party” and WH&C had only signed the Bill as the “former” solicitors of a “deceased” petitioner, the entirety of Bill was not on CF basis (and queries were thus raised by both respondent and the director afterwards in their respective LOOs).

40.  As one recalls, Part 1 of the Bill was silent on the basis of taxation. When CW&A later sought clarification by its 16 Dec 2016 letter, WH&C answered in its letter dated 20 Dec 2016 that items claimed under Part 1 thereof related to P&P costs and raised no objection to respondent taking more time to file her LOO.

41.  Had the Bill sought P&P costs in Part 1 thereof against the respondent as the aforesaid clarification from WH&C suggested, it ought, I think, to be instituted in the official title of the director in the first place but it was not (for otherwise WH&C had no authority from deceased petitioner, his relative or the director to issue and file a bill for P&P costs on behalf of a dead person against the opposite party). The alternative is for WH&C or the director to get leave under O.15 of the Rules of District Court to appoint someone to represent the estate of deceased petitioner to commence P&P taxation.

42.  While WH&C in its reply letter dated 20 Dec 2016 to CW&A said amendments to the Bill were being considered, it went ahead to set the Bill down for taxation in Jan 2017 and, despite 7 Feb 2017 letter to court from CW&A seeking directions regarding “ambiguity” of the Bill copied to it, it took out no summons in the family proceedings to seek leave to amend the Bill even up to oral hearing before me on 20 Apr 2017 (if not fully resolved the problem by consulting every concerned party and filed such consent summons in the family proceedings to dispense with the oral call-over before me).

43.  Instead, the MP action was taken out by WH&C acting on behalf of the director a week before the oral hearing before me. That was, in my view, a piece of avoidable satellite litigation taken out prematurely and unnecessarily without trying to solve the problem in the family proceedings itself, including taking benefit of possible directions given at the forthcoming oral call-over hearing.

44.  All in all, there was, I find, no fault with the respondent and she was misled to have incurred costs and brought into all these proceedings (and required to incur more costs) by the above failures of WH&C and the director.

45.  I accordingly agree with the submissions of Ms Wong and disagree with the contrary submitted by Ms Hui and Ms Leung.

Disposition

46.  Having regards to all circumstances, materials and submissions before me, in exercise of my discretion, it is, I think, appropriate to order and I so order:

1) WH&C to pay costs of the respondent for the hearing before me on 20 Apr 2017 in any event;

2) the costs of and occasioned by the amendments to the Bill be paid by WH&C to the respondent in any event; and

3) the costs of the MP action be paid by the director to the respondent.

47.  All 3 costs orders above in the respondent’s favour are to be summarily assessed by this court on papers and payable within 14 days after their assessment. For purpose of such assessment, I direct the respondent to file her statement of costs within 21 days from the date of this decision and allow the director & WH&C to file their respective grounds of objection, if any, within 14 days thereafter.

48.  Finally, I thank Ms Wong, Ms Leung and Ms Hui for their assistance.

FCMC 4456 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4456 OF 2013

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J U D G M E N T
(Maintenance Pending Suit)

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Introduction

1. This is an application by a Petitioner husband for maintenance pending suit pursuant to s 3 Matrimonial Proceedings and Property Ordinance Cap 192.

The main issues

2. The main issue to be determined is how much the wife should pay to the husband as maintenance, pending final resolution of this matter. The wife has offered to pay HK$10,000 per month whereas the husband seeks HK$33,000 per month for three months such sum to be reduced to HK$25,000 per month thereafter with effect from the 1 March 2015.

Background 

3. This case began as a defended suit. I handed down my judgment in that respect on the 21 August 2014 when I said as follows:  

3. The parties married in March 2003 when the husband was nearly 60 and the wife 37 years of age. This was the husband’s fourth marriage, whereas the wife had not been married before. By all accounts the marriage has been a very troubled one with the husband originally issuing proceedings for divorce on the basis of the wife’s unreasonable behaviour in 2011. The parties subsequently reconciled and the original divorce petition was withdrawn. The wife undertook at that time to pay the husband HK$10,000 per month for his financial support and she also entered into a non molestation undertaking. Unfortunately however the parties’ reconciliation was short lived and on the 20 March 2013 the husband filed a second petition again based on the wife’s unreasonable behaviour. The wife filed an Answer on the 6 May 2013. She did not cross petition. The husband filed his Reply on the 21 May 2013.

4. It is accepted that the wife, who is of Chinese descent, has been the major bread winner throughout the marriage. She works full time in the financial field whereas the husband, who is American, is a retired musician and academic.

5. It should also be noted that the husband has some very significant health issues and that he is presently in remission from stage IV cancer of the oesophagus. 

4. Sadly, since that judgment was handed down, the husband’s health condition has deteriorated significantly and he is presently undergoing treatment on an intermittent but ongoing basis in Taiwan. The wife for her part says that she has recently been diagnosed with a mental health condition – namely a bipolar disorder. Further information in that respect will no doubt be provided in due course.

5. It should also be noted that I found in favour of the husband in respect of the suit and   I granted him a decree nisi of divorce based on the wife’s unreasonable behaviour.  I added that:

22. … It seems to me that this marriage has broken down irretrievably and that the husband cannot be reasonably expected to live with the wife especially given his ongoing health issues.

In addition I ordered that the wife do pay the husband’s costs of the trial on a party and party basis.

6. It should be noted that although the wife failed to make payment of the agreed maintenance pending suit at one stage, any arrears have since been paid up to date and the wife is currently continuing to make payments as ordered – albeit according to the husband the payments are sometimes made late. An order for interim maintenance pending suit in the sum of HK$10,000 per month was made on the 14 October 2014 pending this hearing in order to avoid any misunderstandings in this respect.

The law

Maintenance pending suit

7. The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. Generally the court is concerned with establishing the standard of living of the parties and the ability of the paying part to meet the payments to be made. In so far as it is possible the court will also endeavour to try to look to the reality of the situation and will try not to simply accept the bare assertions made by one or other of the parties.

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

8. In essence the husband’s case is that the wife should pay him HK$33,000 per month dropping to HK$25,000 per month because he needs the additional funds to pay for his cancer treatment and other costs associated with it.

9. The wife argues in turn that she should not be expected to contribute towards the costly treatment of the husband’s cancer treatment given that it was his decision to obtain treatment in Taiwan and not in Hong Kong – where it would arguably have been cheaper and more cost effective. She also maintains that the husband’s daughter by a previous marriage, E, had agreed to pay for that treatment. With respect this line of argument is somewhat distasteful. Although it is true that it was the husband’s choice to obtain treatment in Taiwan and his daughter has infact provided for much of the cost, this should not obviate the wife from any responsibility in this regard – especially on an interim basis where the court is charged with looking at issues relating to maintenance on a broad brush basis. Given that it cannot be disputed that the husband is presently undergoing further treatment in Taiwan for his cancer, it seems to me that in such circumstances the wife should be obliged to contribute towards the costs of that treatment.

10. In addition the wife argues that the husband is a gambler and that he frequently goes to Macau – even when undergoing the treatment. She says that she should not be obliged to contribute towards any losses made by the husband in this respect. The husband for his part does not deny that he goes to Macau and that he occasionally gambles. He does however dispute the level of losses alleged by the wife. In particular he says that this is practically his only form of entertainment and that most of the time he breaks even.  

11. The husband’s expenses are set out in his latest Form E dated the 26 September 2014 as follows:

General Items
Mortgage instalments	Paid by R
Utilities Other utilities (Now TV, broadband, telephone) Management fees	Paid by R 784 Paid by R
Food	1,500
Household expenses	300
Car expenses	2,500
Insurance premia	Paid by R
Domestic helper	0
Long distance calls	100
Sub total	5,184
Personal Items
Meals out of home	4,500
Transport	100
Clothing/shoes	400
Personal grooming	400
Holidays/entertainment	4,000
Trips to cancer centre in Taiwan	7,000
Medical/dental/nourishment	10,000
Others: mobile phone	400
Sub total	26,800
Total expenses	31,984

12. With respect these expenses seem quite reasonable in the circumstances. I accept that the husband will at this stage be ill advised to change his treatment plan and that it will be necessary for him to continue to make regular trips to Taiwan for treatment. In such circumstances I also accept that it is reasonable for him to make some form of interim payment to the hospital. He proposes paying HK$10,000 per month. Ultimately payment may need to come from his share of the assets. I note his intention to also repay E in due course. It seems to me that it would be wholly appropriate for him to do so. The counsel for the wife challenged the evidence produced by the husband in relation to the cost of his treatment in Taiwan. This may need to be looked at in more detail at a final ancillary relief hearing, if agreement is not reached in the meantime. However as things stand, it is clear that the husband is receiving treatment, that the wife has not contributed very much towards his medical expenses to date and that these costs will be continuing. In such circumstances to allow for a minimal payment of HK$10,000 per month as suggested by the husband seems sensible. I also accept his estimate of HK$7,000 per month to cover the cost associated with the trips to and from Taiwan.

13. However some adjustment can be made to some of the other expenses – such as the car expenses – which I will reduce to HK$1,500 per month, meals out of the home, which I will reduce to HK$3,500 per month and holidays/entertainment, which will be reduced to HK$2,000 per month. The latter reduction is in part a recognition of the wife’s concerns with respect to the husband’s alleged gambling habit.

14. Thus a more reasonable level of expenditure would be as follows: 

General Items
Mortgage instalments	Paid by R
Utilities Other utilities (Now TV, broadband, telephone) Management fees	Paid by R 784  Paid by R
Food	1,500
Household expenses	300
Car expenses	1,500
Insurance premia	Paid by R
Domestic helper	0
Long distance calls	100
Sub total	4,184
Personal Items
Meals out of home	3,500
Transport	100
Clothing/shoes	400
Personal grooming	400
Holidays/entertainment	2,000
Trips to cancer centre in Taiwan	7,000
Medical/dental/nourishment	10,000
Others: mobile phone	400
Sub total	23,800
Total expenses	27,984

15. This figure represents on a broad brush basis what seems to me to be more reasonable level of expenditure for the husband. I will round this up to HK$28,000 per month. 

What income does the husband presently have apart from the maintenance from the wife?

16. It was accepted by the counsel for the wife that the husband does not have any real earning capacity at present. He is a 71 year old man with stage IV cancer. In such circumstances it is unrealistic to expect him to be able to earn anything very much at present. In any event it is also accepted that the wife has been the major wage earner throughout the marriage. The husband’s only income is some social security benefits received from the US Government and an Old Age Allowance received from the HK Government. These add up to approximately HK$7,300 per month. Thus the husband “needs” the balance of approximately HK$20,700 per month or say HK$21,000 per month (rounded up).  

Can the wife afford to pay this sum?

17. It is not disputed that the wife currently earns just under HK$90,000 per month. What is in dispute is the current level of the wife’s monthly expenditure, including the repayment of recently acquired loans. The wife’s updated expenses are set out in her affidavit dated the 11 November 2014 as follows:

4.1  General

Item	Amount
Rent (incl Government Rates)	$0.00
Mortgage instalments	$6,180.00
Utilities (electricity, gas, rates, telephone & water)	$2,685.00
Management fees & Government Rates	$700.00
Food	$6,000.00
Household expenses	$2,500.00
Car expenses (car parking space rental)	$500.00
Insurance premia	$119.00
Domestic helper(s)	$2,500.00
Others (specify):	$0.00
Attach a copy of the latest rental receipt.	HK$21,184.00

4.2  Personal

Item	Amount
Meals out of home	$3,750.00
Transport	$3,900.00
Clothing/shoes	$2,000.00
Personal grooming (including haircut and cosmetics)	$2,500.00
Entertainment/presents	$2,000.00
Holiday (average per year)	$4,000.00
Medical/dental (average per year)	$7,000.00
Tax	$11,000.00
Insurance premia	$16,795.00
Interim maintenance	$10,000.00
Contribution to parents	$3,000.00
Mobile phone	$132.00
Others (specify): charity	$100.00
	HK$66,177.00

Total monthly expenses for children
Total monthly expenses (4.1 + 4.2 + 4.3)	HK$87,361.00

18. In addition she says that she has a number of loans that she is required to repay on a monthly basis. Thus she says that she currently runs into deficit each month as follows:

Description	Amount (HK$)	Amount (HK$)
Income (average)		$89,243
Less:
Monthly expenses	$87,361
Repayments of the 4 loan	$34,545.53
Monthly reserves for Legal Expenses	$20,000	$141,906.53
		($52,663.53)

19. With respect although most of the General Expenses seem reasonable, especially those that the husband also benefits from (i.e. the mortgage instalments, utilities, management fees and Government rates, food and household expenses), other personal expenses should be capable of some reduction. In particular the wife should be able to reduce the amount of money that she spends on meals out of the home, clothing shoes, personal grooming, entertainment and holidays. Although the wife says that she will need to pay more money for herself on medical issues, no evidence has been produced in that respect. Further any contribution made towards the wife’s parents should not take precedence over her obligations towards her husband. Likewise the payment for insurance premia seems to be very much on the high side.   

20. I also have some concerns with respect to the wife’s alleged loans and the reasons for them. But in any event the fact that the wife has the ability to raise loans at this point in time should also mean that if necessary she can draw on such loans in order in part to make proper interim financial provision for the husband. See for example paragraph 3.92 of Jackson’s Matrimonial Finance 9^th edition where it states as follows:

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

I agree with this approach.

21. All in all I am satisfied that the wife does have the means to pay the husband HK$21,000 per month and that in part this should come from a reduction in some of her own expenditure. This order will also be made on the premise that the wife shall continue to pay for the other household items as set out in her list of General Expenses as set out in paragraph 17 – 4.1 above.  

Costs

22. Given that the husband has been more successful than not, that he had had no option but to make this application and the fact that the husband is legally aided I shall also order that the wife pay the husband’s costs of this application on a party and party basis to be taxed if not agreed, the husband’s own costs to be taxed in accordance with Legal Aid Regulations.

23. I was addressed at the end of the hearing on the future conduct of this case. I am concerned that it should proceed to FDR as quickly as possible. There is a potential preliminary issue point – that could delay the matter quite significantly if pursued. I will expect to be addressed on this at the next First Appointment hearing.

Order

24. Thus I will make an order as follows:

Upon it being directed that the wife do continue to pay for those items set out in paragraph 17 – 4.1 above namely the General expenses

IT IS ORDERED THAT

1) Paragraph 2 of the order dated the 14 October 2014 shall be varied to the effect that the Respondent do pay maintenance pending suit to the Petitioner for himself in the sum of HK$21,000 per month, the first payment to be made on the 1 January 2015 and thereafter to be paid on the 1st day of each succeeding month until further order.

2) The Respondent do pay the Petitioner’s costs on a party and party basis to be taxed if not agreed. The Petitioner’s own costs to be taxed in accordance with Legal Aid Regulations.

3) There shall be a further First Appointment hearing on the 26 January 2015 at 10 am.

4) Both parties do personally attend that hearing.