LYMC v. LCW

FCMC 13526/2015

[2019] HKFC 118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13526 OF 2015

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

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

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

JUDGMENT
(Leave to appeal)

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

Introduction

1.  By his summons dated 14 March 2019, the respondent husband seeks to appeal the following orders made by me:

(1) The order dated 1 February 2019 dismissing his application for leave to appeal the 4 Orders as defined at [4] of the written judgement of the same date (“Leave Refusal Order”);

(2) The summary assessment of the costs in the sum of $40,000 payable by him to the wife out of his share of net sale proceeds of the matrimonial home which was paid into the family court pursuant to an order of 20 December 2018 (“Summary Assessment Costs Order”).

2.  I have already handed down 2 written judgment dated 27 November 2018 and 1 February 2019 respectively on the husband’s previous applications for leave to appeal, in which the background of the case and the procedural history have been set out sufficiently at [5]-[19] of the first written judgment and [6]-[7] of the 2^nd written judgment.  But at the risk of repeating myself, I shall very briefly state that the petitioner of this case is the former wife of the respondent. They have 2 children born within their wedlock, whose care and control rested with her. During the financial dispute resolution (FDR) held before me on 20 December 2016, the parties settled the ancillary relief matters by agreeing, among other things, to sell the jointly-owned matrimonial home and to share the net profit thereof, and out of the husband’s share, he would pay periodical maintenance for the benefit of the children. Their settlement was later made into a consent order of this court on 23 December 2016. Subsequent to this consent order, various directions/orders were made for the enforcement of the sale of the matrimonial home. At those material times, the matrimonial home was occupied by the husband but he refused to move out of it.

3.  After the consent order of 23 December 2016, the husband lodged 2 rounds of appeal against various directions and orders made by me and more particularly defined in the aforesaid 2 written judgment. His previous leave to appeal applications were all dismissed by me.  This is his 3^rd round of appeal of my orders arising out of the 2^nd written judgment.

4.  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.

5.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  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” (See: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011).

Discussion

6.  The husband originally served his summons on the former solicitors acting for the wife. But as at the time of his summons, the wife is acting in person.  I therefore directed him to serve on her direct, to which he did so subsequently and proved by his affirmation of service dated 1 April 2019.

7.  The wife has not filed any papers in reply to the husband’s draft grounds of appeal within 14 days of the service.

8.  I do take note that the husband is a litigant in person, but still I have to say that his draft grounds of appeal are unfocused and on the whole unrelated to the orders that he now seeks to appeal. Many of the paragraphs are mere repetitions of his draft grounds of appeal in relation to his previous applications for leave to appeal. For example, he says that the wife’s behaviour is molestation and harassment to him and that she is negligent in failing to maintain him.  He asks that periodical payment be made to him by her. Such draft grounds of appeal simply cannot stand up to any reasonable chance of success in his intended appeal application.

9.  Further, it is trite to say that he cannot lodge an application for leave to appeal against my order refusing his leave to appeal, ie the Leave Refusal Order. If he is not satisfied with the Leave Refusal Order, he might have renewed his application before the Court of Appeal.

10.  His draft grounds of appeal do not contain any ground(s) as to how I have exercised my discretion wrongly in making the Summary Assessment Costs Order. Notably, the wife, while still represented by her former solicitors, submitted 4 sets of statements of costs (each in the sum of $31,370 inclusive of costs and disbursements) and asked that such costs be assessed on an indemnity basis, but I awarded costs to her only on party and party basis.  I refer to [35]-[40] of the 2^nd written judgment dated 1 February 2019 explaining why I made the costs order that the husband should bear the wife’s costs on party and party basis of that leave to appeal application. Further, I have explained in the letter of 6 March 2019 addressed to the parties as to why I made a summary assessment of a global sum of $40,000, which for easy reference, shall be re-produced below:

“RE: Summary assessment of costs pursuant to order made on 1/2/2019 in respect of the respondent’s applications for leave to appeal

1. This court shall repeat the observation in para 38 of the Decision of 1/2/2019, and take the view that it is not necessary for the wife/petitioner to prepare 4 separate written submission, the content of parts of which are repetitive.

2. The appeal applications are not complicated. The time claimed is excessive.

3. Taking a broad brush approach by way of summary assessment, I shall assess the costs of the 4 separate bills of costs in one global sum of $40,000, to paid out of the respondent husband’s share of the net sale proceeds which was paid into court pursuant to the order of Deputy Judge To dated 20/12/2018.”

11.  Upon due consideration, I conclude that there is no reasonable prospect of success in his intended appeal. Leave to appeal should thus be refused. I shall make no order as to costs of this application.

FCMC 13526 /2015

[2019] HKFC 78

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 13526 OF 2015

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

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

__________________

Decision
(Leave to Appeal Out of Time)

__________________

1.  This is the Respondent’s application pursuant to Summons dated 11 February 2019 for leave to appeal out of time against the Order dated 20 December 2018.

Applicable Legal Principles

2.  Section 63A(2) of the District Court Ordinance Cap 336 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.

3.  The court has discretion to grant leave to appeal out of time. The factors for consideration are: the length of delay; the reason(s) for delay; prospect of success of the intended appeal application; and whether the grant of leave to appeal out of time would cause prejudice to the opposite party.(See: LSW v LMYM, HCMP 1085/2006; 黃對潘, HCMP 2749/2014)

Order dated 20 December 2018

4.  The following are key background facts against which the Order dated 20 December 2018 was made.

(a)      An ancillary relief order was made by consent on 23 December 2016 during the FDR hearing whereby parties agreed, inter alia, the former matrimonial home be sold and its net sale proceeds be shared equally between them; the Respondent would pay the Petitioner a sum of $8,000 per month as children maintenance (ie $4,000 per child per month), and for that purpose, the Respondent would pay a sum of $1,300,000 out of his share of net sale proceeds into a joint account and parties would give joint instruction to the bank for a monthly transfer of $8,000 into the Petitioner’s sole bank account for the benefit of the children (“the AR Order”).

(b)     The Respondent did not fulfill any of his obligations under the AR Order. This subsequently led to various court orders made to enable implementation of the AR Order. They include, inter alia, an order authorizing the Petitioner to sign all the necessary conveyancing documents; an order to pay the sum of $1,300,000 into court out of the Respondent’s share of net sale proceeds for children maintenance.

(c) The former matrimonial home was eventually sold. The said sum of $1,300,000 was paid into court on 17 September 2018.

(d)     In various enforcement applications by the Petitioner, the Court has ordered that several sums of money and costs be paid out of the Respondent’s share of the net sale proceeds. After deduction, the net sum of HK$2,290,811.70 remained in the custody of the vendor’s conveyancing solicitors Young & Co., Rowdget W.

5.  By the Order dated 20 December 2018, I made the following directions:

(1)     The payment into court on 17 September 2018 of the sum of HK$1,300,000 being maintenance for the two children of the family be released to the Petitioner within 21 days, subject to the Petitioner’s strict compliance of the following:

(a) The Petitioner shall open a personal bank account with HSBC and deposit the said sum of HK$1,300,000 into the account. Commencing from the month of January 2019, the Petitioner can withdraw from the said account not more than HK$8,000 per month as maintenance for the two children;

(b) As retrospective maintenance payment for the months of October to December 2018, the Petitioner can within 7 days after the said sum of HK$1,300,000 was deposited into the said account, withdraw a lump sum of HK$24,000 therefrom;

(c) The said account shall only be used for the purpose of the above withdrawals, not for any other purposes;

(2) Leave for Young & Co., Rowdget W. to pay into court the sum of HK$2,290,811.70 being the Respondent’s share of net sale proceeds, pending the Respondent’s application for payment out.

(3) No order as to costs.

The Draft Grounds of Appeal

6.  The draft Grounds of Appeal contained allegations and criticism against the Petitioner which are totally irrelevant to the present application. It also mentioned about appealing against some previous orders of HH Judge Grace Chan of which leave to appeal was already refused.

7.  The draft Grounds of Appeal has raised only 3 points said to be relevant to the Order dated 20 December 2018.

“I do not have information about the HSBC bank statements of her [thePetitioner’s] personal bank accounts to support that she had opened a personal bank accounts and deposited HK$1,300,000 within 21 days from the Order dated 20 December 2018;

I do not have information related to support that she [thePetitioner] hadwithdrawn should not exceed HK$8,000 monthly from such her personal bank accounts from January 2019 for the children maintenance………., and also such her personal bank accounts only for the said maintenance purpose;

I do not find a formal contract from the Registry that …… Young & Co., Rowdget W. had submitted …. the statement of accounts for detailed calculation for [the Respondent’s] net share of sale proceeds ………. in the amount of HK$2,290,811.70 ………”

8.  It is obvious that the Respondent’s application is misconceived; he is not seeking leave to appeal. By the 1^st and 2^nd points above, it appears that he wants to check and verify whether the Petitioner has complied with the Order dated 20 December 2018. By the 3^rd point above, it appears that he wants to check and verify whether the sum of HK$2,290,811.70 represents an accurate amount of his share of sale proceeds. The Respondent did not say the Order dated 20 December 2018 should not have been made nor suggested I have erred in making the above directions.

9.  Instead of seeking leave to appeal against the Order dated 20 December 2018, what the Respondent could have done is to contact the Petitioner and/or Young & Co., Rowdget W. and request for the relevant documents, failing which, he may consider making a formal application for directions of the court. I note that the Petitioner by her written submission said the Statement of Account of Young & Co., Rowdget W. has already been provided to the Respondent on 26 September 2017.

Leave to Appeal is refused

10.  As said, the application for leave to appeal in the first place is misconceived. The draft Grounds of Appeal is also devoid of substance, there is plainly no reasonable prospect of success. I dismiss the Respondent’s application.

Costs

11.  The Petitioner by her written submission asks for costs. I see no reason why the Respondent should not bear costs of this meritless and misconceived application. However, the Petitioner has not submitted her statement of costs for summary assessment. She only said she has spent 4 hours to prepare the written submission in opposition, but she has not quantified the amount with evidence. The Respondent therefore has no chance to respond to the statement of costs which he is entitled to.

12.  Hence, on costs, I make the following directions:

(1)     The Respondent shall bear the Petitioner’s costs of this application to be summarily assessed. Such assessed costs shall be paid out of the Respondent’s share of net sale proceeds which is already paid into court by Young & Co., Rowdget W. on 4 January 2019.

(2)    The Petitioner do lodge with the court and serve on the Respondent her statement of costs within 14 days from the date of this decision; failing which the Petitioner shall be deemed to have abandoned her claim for costs. Within 7 days upon service of the statement of costs on the Respondent, an affirmation of service shall be filed by the Petitioner.

(3)     Upon service of the statement of costs, the Respondent shall lodge with this court and serve on the Petitioner his written comment; failing which the Respondent shall be deemed to have no comment on the statements of costs.

FCMC 13526 /2015

[2019] HKFC 28

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13526 OF 2015

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

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

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

JUDGMENT
(Leave to appeal)

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

Introduction

1.  This is yet another round of application for leave to appeal taken out by the respondent (whom I shall for convenience still call him the “husband”). I will continue to address the petitioner of this case as the “wife” in this decision.

2.  On this occasion, the husband made his application by way of 4 summonses all dated 18 December 2018 for leave to appeal various orders made by me between 2016 and 2018, in particularly seeking leave to appeal the consent order dated 23 December 2016 entailing the settlement of the parties on the ancillary relief matters reached in the FDR (financial dispute resolution) hearing of 20 December 2016.

3.  I should point out at this stage that though the settlement on the ancillary relief matters were reached during the FDR on 20 December 2016, the terms of settlement were made into a consent order on 23 December 2016 when the decree nisi was made, in order to comply with the requirement of section 25(1)(b) of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”).

4.  The 4 orders that the husband now seeks to appeal are:

(1)   An order made on 23 December 2016 whereby I ordered that the question of ancillary relief matters be adjourned forthwith to chambers (“1^st Order”);  

(2)   An order made also on 23 December 2016 whereby I made an order in orders by consent of the settlement reached by the parties during the FDR (“2^nd Order” or “AR Order”);

(3)   An order made on 4 April 2018 whereby I gave the wife the liberty to issue a writ of possession in respect of the former matrimonial home (“3^rd Order”);

(4)   An order made on 10 August 2018 whereby I ordered that several sums of money, such as the husband’s share of the mortgage payments and management fees of the former matrimonial home, be paid out of the husband’s share of the sale proceeds of the matrimonial home (“4^th Order”)

5.  As a matter of procedural history, the husband had previously filed a summons dated 16 October 2017 seeking leave to appeal my order of 29 June 2017. The said order concerns consequential directions on the implementation of the sale of the former matrimonial home pursuant to the AR Order. I handed down my decision on his leave to appeal application on 27 November 2017 (“Previous Appeal Decision”).

6.  In the Previous Appeal Decision, I have set out the background and case history of this case at §§5-19 therein, and thus I shall not repeat the same in great length here.  But briefly, the parties are in their 40s.  As claimed in their respective Form E filed in 2016, the wife was then a registered nurse by occupation earning about $50,517 per month, whereas the husband was an audit senior and claimed that his average income was about $15,000 per month.[1] There are 2 young children of the family, whose care and control rested with the wife. She moved out of the former matrimonial home to another rented property with the children in/about October 2016, while the husband continued to stay in the former matrimonial home.

7.  Additionally, I should highlight the following facts, especially those which took place after the Previous Appeal Decision, set out more particularly in the following table:

Date	Remarks
20/12/2016	FDR held and parties signed a consent summons. Broadly, the parties agreed that: (1)the former matrimonial home be sold at $8.81 million or market price to be mutually agreed on/before 21 March 2017, and its net sale proceeds be shared equally between them; (2)the husband would pay the wife a sum of $8,000 per month as children maintenance (ie $4,000 per child per month). For that purpose, he would pay a sum of $1.3 million of his share of the sale proceeds into a joint account and the parties would give joint instruction to the banker for monthly transfer of $8,000 into the wife’s sole bank account for the benefit of the children; (3)the husband would vacate from the former matrimonial home upon signing the preliminary sale and purchase agreement, or on/before 21 March 2017, whichever is the earlier; (4)the husband shall pay all the management fees, government rates and rents and utilities during his occupation in the former matrimonial home.
23/12/2016	Decree nisi was granted. The 1st Order and the AR Order were made respectively.
3/4/2017	The wife’s summons for further direction on the implementation of the AR Order, as a result of the husband’s failure to pay the mortgage payment of and his refusal to let potential purchasers to view the former matrimonial home and/or the bedrooms therein. During this period, the burden of paying the mortgage payment fell onto the wife (in order that the mortgagee bank would not call loans and apply for an order for sale), let alone that she had to shoulder all the expenses of the children.
29/6/2017	Upon hearing from both parties on the wife’s aforesaid summons, I made the following directions for the purpose of implementing the AR Order: (1)    the husband shall move out of the former matrimonial home on/before 29 August 2017; (2)    the wife shall have the conduct of sale; (3)    the husband shall sign the requisite conveyancing documents to effect the sale of the former matrimonial home within 7 days upon notice from the wife, failing which she shall be authorised to sign all the necessary conveyancing documents; (4)    the husband shall reimburse the wife of his share of mortgage payment (now shouldered by her) out of his share of the sale proceeds; (5)    all the expenses relating to the former matrimonial home after delivery of vacant possession by the husband shall be borne by the parties in equal shares; (6)    the husband shall bear the wife’s costs of this application to be summary assessed (which was later assessed by me in the sum of $15,000).
29/8/2017	Deadline for the husband to vacate from the former matrimonial home, but he had failed to do so.
16/10/2017	The husband’s summons for leave to appeal against my order of 29/6/2017, which was dismissed by me in the Previous Appeal Decision.
4/4/2018	On the wife’s ex parte application by way of her 4th, 5th and 6th affirmations, I made the 3rd Order giving the wife the liberty to issue a writ of possession for recovery of the former matrimonial home;
26/4/2018	Writ of possession was issued.
30/5/2018	The court bailiff executed the writ of possession and the wife took vacant possession of the former matrimonial home and she changed the lock thereof. However, she later discovered that the husband had changed the lock to and continued to stay in the former matrimonial home. Police was called and the husband finally left the former matrimonial home.
2/6/2018	The wife re-gained vacant possession of the former matrimonial home.
8/6/2018	The husband took out a summons for an order that he had the right to stay in the former matrimonial home. His summons was dismissed by me in the call-over hearing of 9/8/2018.
17/7/2018	The wife signed the preliminary agreement of sale and purchase to sell the former matrimonial home at $9.68 million pursuant to the AR Order and consequential implementation orders set out above. Completion was to take place on 12/9/2018.
31/7/2018	In the course of selling the former matrimonial home, the wife found out that it was encumbered caused by the husband’s indebtedness. She thus took out a summons for an order that: (1)    all the sums of moneys required to discharge the 2 encumbrances registered against the former matrimonial home at the land registry (being (i) arrears of management fees of the former matrimonial home and (ii) the husband’s credit card bills of Standard Chartered Bank) be paid out of the husband’s share of the sale proceeds;[2] (2)    the husband shall reimburse the wife from his share of the sale proceeds the following items of moneys: (i)   mortgage repayment and interest penalty that she had paid for him until the date of completion of the sale; (ii)   management fees, government rates and rent, and other miscellaneous payments that she had paid for him until the date of completion of sale; (iii)      the costs summary assessed in the sum of $15,000 pursuant to the order of 29/6/2017; (iv)       legal fees and disbursement arising out of the writ of possession in the sum of $41,790; (v)   costs of this summons in the sum of $15,000.
10/8/2018	In respect of the above summons of the wife, I made the 4th Order in terms of her summons, but I did not make any order in respect of legal fees and disbursement of the writ of possession, nor the costs of her summons.
12/9/2018	Completion of sale of the former matrimonial home.
18/12/2018	The husband filed his summons for leave to appeal against the 4 orders made by me.

Applicablelegal principles

8.  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.

9.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  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” (See: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011).

10.  On the other hand, under Order 58 rule 2(4) of the Rules of the District Court, Cap 336H, an application for leave to appeal from an interlocutory judgment, order or decision should be made within 14 days from the date of that judgment, order or decision, whereas an application for leave to appeal from a non-interlocutory judgment, order or decision should be made within 28 days from the date of that judgment, order or decision. 

11.  It is abundantly clear that the husband’s application for leave to appeal of the aforesaid 4 orders is made out of time for 4 months to almost 2 years (as the case may be).

12.  The court has a discretion to grant leave to appeal out of time. The factors for consideration are:

(1)   The length of delay;

(2)   The reason(s) for delay;

(3)   Prospect of success of the intended appeal application;

(4)   Whether the grant of leave to appeal out of time would cause prejudice to the opposite party.

(See: LSW v LMYM, HCMP 1085/2006; 黃對潘, HCMP 2749/2014)

The 1^st Order

13.  As a recap, the 1^st Order was made by me way back in December 2016. The husband’s application for leave to appeal against the 1^st Order is late for almost 2 years. This is a very serious delay, but he has not proffered any reason for such an inordinate delay.

14.  The 1^st Order is in fact a very standard procedural order made day in and day out by family judges at the time when decree nisi is granted in open court, after which the court would adjourn the children and/or ancillary relief matters to be dealt with in chambers on a date to be fixed or already fixed in previous call over hearing.

15.  From my reading of his draft grounds of appeal, the husband merely submits that I should grant leave for him to appeal out of time against the 1^st Order.  He has not provided any substantive reason(s) for why and how I erred in making the 1^st Order. There is no need for me to repeat what he has said in his grounds of appeal. Suffice it is for me to point out that he makes unfocused and irrelevant points, such as alleging the wife’s negligent behaviour in not maintaining him; his request for secured periodic payment for him (in the sum of $30,000) and for the children (in the sum of $15,000), and interim payments and attachment of income order, etc. I agree with the written submission of the wife’s solicitors that these request are incomprehensible and misconceived, in the view that it is the wife who has the care and control of the children and that the parties have already settled their spousal ancillary relief claim in the AR Order. It is thus clear that there is no substance in his grounds of appeal.

16.  There is no reasonable prospect of success in his appealing against the 1^st Order.

The 2^nd Order/AR Order

17.  The AR Order was made on 23 December 2016. The husband is almost 2 years late in making his application for leave to appeal, and he has not offered any explanation for such serious delay.

18.  It is pertinent to reiterate that the AR Order records the settlement of the parties reached in the FDR, during which the husband signed to record his agreement to the settlement terms therein in a consent summons (prepared in hand written form). By seeking leave to appeal against the AR Order, he is effectually saying that he no longer wishes to be abided by his own words. 

19.  What the husband seeks to appeal against is essentially the property sale order in respect of the former matrimonial home, because, so he says, it was his only residence where he had lived for 16 years.  Other than that, the so-called grounds of appeal advanced by him are mainly and merely repetitions of the grounds of appeal in respect of the 1^st Order. I have already given my comment on his intended appeal against the 1^st Order in §[15] above. Those comment applies equally to the AR Order.

20.  On the other hand, it is trite law that a property sale order made under section 6(1)(e) of the MPPO is not subject to variation or discharge because such an order does not fall within section 11 of the MPPO. The AR Order providing for the sale of the former matrimonial home is thus not subject to variation or discharge under section 11 of the MPPO.

21.  If a consent order, like the AR Order here, does not fall within section 11, it is well established that the court may set it aside on the following grounds:

(1)   fraud;

(2)   mistake;

(3)   non-disclosure or misrepresentation of material facts at the time the order was made;

(4)   new events have occurred since the order was made which have invalidated the basis upon which the order was made.

(See: Wong Oi Han v Sin Wai Chung [2012] 3 HKLRD 142 at §10)

22.  None of the above grounds is alleged and/or relied on by the husband in his intended appeal application. There is simply no basis for him to set aside the AR Order or the property sale order by way of an appeal.

23.  Finally, I would reiterate what I have said in the Previous Appeal Decision on the intention of the property sale order and the prejudice that may cause to the wife if the AR Order is to be set aside:

“30. More importantly, he has not lodged any appeal against the [AR Order], which is the primary order providing for the sale and sharing of the matrimonial home and which leads to the consequential directions set out in the Order (that is now under appeal). He is thus still bound by the [AR Order] under which the matrimonial home has to be sold.

31. Furthermore, one must not overlook the prejudice that would cause to the wife if his leave to appeal out of time is allowed. As a matter of fact, the wife, now acting in person in this hearing, submits that the husband is now enjoying the occupation of the matrimonial home all by himself without paying for its mortgage, let alone children maintenance. According to her Form E, her totally monthly expenses are about $59,000. She has been shouldering the mortgage repayment and all children expenses in the last 10 months, which she finds it difficult to sustain without affecting the children’s status quo arrangement and in the result, she has to cut their tutorial and interest classes. She complaints that the husband is merely employing a delaying tactic to vacate from and sell the matrimonial home.

32. It must be remembered that the intention of selling the matrimonial home is not only for asset distribution, but also for the husband, who claims that he has difficulty in making financial provision for his own children, to realise sufficient funds for children maintenance way forward. In my view, to grant leave to appeal out of time would further delay the achievement of this intention which in turn is not in the best interest of the children of the family. To safeguard the best interest of the children of the family is the paramount duty of the family court.”

24.  Due to the matters aforesaid, I cannot see any reasonable prospect of success lies in the intended appeal of the husband regarding the AR Order.

The 3^rd Order

25.  On 4 April 2018, I made the 3^rd Order that the wife be at liberty to issue a writ of possession for the recovery of possession of the former matrimonial home. The circumstances leading to the making of this order can be referred to the table of relevant chronology in §[7] of this decision. Briefly, the husband failed to comply with the court order to deliver vacant possession of the former matrimonial home to the wife for the purpose of implementing the AR Order to sell the same.

26.  His application for leave to appeal is made late for about 8 months, with no explanation provided for such delay.

27.  The draft grounds of appeal contain very similar content of those of the 1^st Order. I shall adopt what I have said in §[15] of this decision. He also refers to an intended appeal of the order made on 12 October 2018 by another deputy family judge, which is not the subject of appeal in this decision.

28.  Simply put, there is no substance in his draft grounds of appeal and thus no reasonable prospect of success.

The 4^th Order

29.  The 4^th Order was made on 10 August 2018 on the wife’s application. The husband is late for almost 4 months in taking out the leave to appeal application. Again, he offers no explanation of his delay.

30.  As a recap, in the course of the sale of the former matrimonial home, it was found out that 2 encumbrances were registered against the former matrimonial home at the land registry:

(1)   A memorandum of charge dated 13 September 2017 and registered by the manager of the former matrimonial home, as a result of the husband’s failure to pay for the management fees then in the sum of $2,951;

(2)   A charging order absolute dated 8 March 2018 and registered by Standard Chartered Bank, the husband’s banker, in respect of outstanding credit card bills then in the sum of $141,111.22 with interest and costs.

31.  In the hearing of 10 August 2018 when the 4^th Order was made, the husband did not dispute that the aforesaid encumbrances were caused by his own indebtedness. As a matter of fact, under the AR Order, he has agreed to pay for the management fees of the former matrimonial home while he was in possession thereof. There is thus every reason that he should be held fully responsible of his own debts out of his entitlement of the net sale proceeds of the former matrimonial home.

32.  His draft grounds of appeal in respect of the 4^th Order are very similar to those relating to the 1^st Order. I reiterate what I have said in §[15] in the earlier part of this decision.

33.  In view of the above, I cannot see the husband would have any reasonable prospect of success in his intended appeal of the 4^th Order, and thus leave to appeal out of time should not be granted to him.

Leave refused

34.  Due to the matters set out above, I conclude that the husband’s application for leave to appeal against the said 4 orders is made belatedly without any explanation. There is no prospect of success in any of this intended appeal. I shall therefore order that the husband’s 4 summonses all dated 18 December 2018 for leave to appeal out of time are dismissed.

Costs

35.  It is clear that the wife is the winning party of these applications. I see no reason why costs should not follow the event. The husband should bear the costs of the wife.

36.  The wife, by her written submission, asks for costs on an indemnity basis and be paid out of the husband’s share of the net sale proceeds of the former matrimonial home.[3] It is her submission that the unreasonable conduct of the husband since the AR Order by taking out numerous meritless applications and delaying the implementation of various court orders/directions have already caused prejudice and damages to the wife. For example, she had to instruct to represent her to deal with those complicated matters including these leave to appeal applications; she had to take leave from work to attend court hearings.

37.  In my view, the costs order to be made in this decision should be confined to the husband’s leave to appeal applications. Although he was not cooperative in delivering vacant possession pursuant to previous court order, a costs order in favour of the wife for issuing the writ of possession was already made on 12 October 2018.  There is a risk of double-penalising him if I am to make a costs order on indemnity basis. In all the circumstances of the case, I hold the view that he should pay the wife’s costs on party and party basis.

38.  The wife’s solicitors have requested for summary assessment of costs. I agree that this is an appropriate case for summary assessment of costs. I also agree that such costs should be paid out of the husband’s share of the net sale proceeds. Her solicitors have prepared 4 separate statements of costs for my consideration. In fact, they have prepared 4 separate written submissions on each of the orders that the husband seeks to appeal, albeit that most of the content of the draft grounds of appeal of the 4 orders is very similar, if not the same.

39.  Be that as it may, I do not have information if the husband has received their statements of costs, to which he should be given a chance to respond. 

40.  Hence, on costs, I shall make the following order/directions:

(1)   The husband shall bear the wife’s costs of these leave to appeal applications on party and party basis to be summary assessed; such costs shall be paid out of the husband’s share of the net sale proceeds of the former matrimonial home;

(2)   In the case that the wife’s statements of costs have not been served on the husband, the same shall be served within 7 days from the date of this decision.  An affirmation of service shall be filed forthwith upon service;

(3)   In the case that the wife’s statements of costs have already been served on the husband, an affirmation of service shall be filed forthwith;

(4)   The husband shall lodge with this court and serve on the wife his written response to the wife’s statements of costs within 28 days from the date of this decision, failing which he shall be deemed to have no response to the statements of costs.

FCMC 13526/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13526 OF 2015

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

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

JUDGMENT

(Leave to appeal : implementation of a property sale order)

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

The Order to be appealed

1.  The petitioner of this case is the wife, while the respondent is the husband.

2.  By his summons dated 16 October 2017, the husband seeks to appeal out of time the order made by this court on 29 June 2017 (“Order”).  The Order concerns consequential directions on the implementation of the sale of the former matrimonial home that the parties have agreed to sell and distribute the sale proceeds pursuant to a consent order reached during the FDR (financial dispute resolution).

3.  In gist, the Order provides that (only the relevant parts are set out below but not in verbatim):

(1) The husband do deliver vacant possession to the matrimonial home on/before 29 August 2017, failing which the wife be granted vacant possession of the same forthwith;

(2) The wife shall have the conduct of the sale in appointing estate agents and conveyancing solicitors;

(3) The husband shall sign all requisite documents to effect the sale of the matrimonial home within 7 days upon notice of the wife, failing which the wife shall be authorised to sign all necessary conveyancing documents on his behalf pursuant to section 38A of the District Court Ordinance;

(4) The husband do give a set of keys of the matrimonial home to the wife upon his vacating from the matrimonial home on/before 29 August 2017;

(5) Neither the husband nor the wife shall occupy or live in the matrimonial home upon the same is vacated;

(6) The husband shall not lock his bedroom and/or other rooms inside the matrimonial home when it is inspected by potential purchasers and/or estate agents.

4.  Upon hearing his application, I refused to grant him leave to appeal, with reasons to be handed down. The following are my reasons.

Case history and FDR settlement

5.  Briefly by way of background, the wife was born in 1973 and is now about 44 years old. At the material times, she is a registered nurse with an income of about $50,517 per month. The husband was born also in 1973 and thus also about 44 years old. According to his Form E dated 11 April 2016, he is a senior auditor with an average income of $15,000. In this hearing, he reveals that he has just got a new job with an income of $17,000.

6.  They were married in 1997. Their son was born in 2003 (now aged 14) and their daughter was born in 2006 (now aged 11). The wife filed her petition for divorce in October 2015 on the ground of unreasonable behaviour of the husband. The petition was later amended to 2 years’ separation, the separation time being in/about February 2013. Decree Nisi was granted on 23 December 2016, which was made absolute on 16 February 2017. Their marriage is a long one of almost 20 years.

7.  By a consent summons made into a consent order dated 7 October 2016, the parties have joint custody to the children, with care and control granted to the wife. The husband has reasonable access set out more particularly in the said consent order.

8.  In so far as their ancillary relief matters are concerned, it is not disputed that during their marriage, they bought a flat in South Horizon in 2002. This became their matrimonial home until the wife moved out of it together with the children in/about October 2016 to another rented flat in South Horizon. Since then, the husband has occupied the matrimonial home all by himself.

9.  The parties appeared before this court in the FDR on 20 December 2016. The major issues involved the maintenance of the children and the sharing of the matrimonial home. For the purpose of the FDR, parties have agreed the value of the matrimonial home is around $8,810,000. The outstanding mortgage is about $1,780,000. The estimated net value is thus about $7,030,000.

10.  Settlement was finally reached between them during the FDR and a consent summons was tendered to this court for approval, which was then made into a consent order (“Consent Order”).

11.  The Consent Order provides, inter alia, that:

(1) Subject to the grant of the decree absolute, the matrimonial home be sold at $8,810,000 or market price to be mutually agreed by the parties on/before 21 March 2017 (ie about 3 months from the Consent Order);

(2) The net sale proceeds, after deducting necessary costs and outstanding mortgage, are to be shared equally between the parties;

(3) Within 7 days upon receipt of the net sale proceeds, the husband shall pay a sum of $1.3 million out of his share of the net sale proceeds into a joint account for the purpose of paying children maintenance, whereby the parties shall give joint instruction to the bank for paying out a sum of $8,000 per month ($4,000 per child per month) into the wife’s sole bank account until the children complete their full time tertiary education;

(4) Any remaining balance under paragraph (3) above shall be returned to the husband.

12.  For the purpose of selling the matrimonial home, the husband agrees to:

(1) vacate from the matrimonial home upon the signing of the preliminary sale and purchase agreement, or on/before 21 March 2017, whichever is the earlier;

(2) facilitate and/or allow reasonable inspection to the matrimonial home;

(3) pay all management fees, government rates and rents and utilities during his occupation therein.

After the FDR settlement

13.  By a summons dated 3 April 2017, the wife seeks to obtain further directions from this court on the implementation of the Consent Order. In very broad terms, she asks that:

(1) Vacant possession of the matrimonial home be granted to her;

(2) She shall have conduct of the sale of the matrimonial home;

(3) The husband shall sign the requisite conveyancing documents to effect the sale within 7 days upon request, failing which the Registrar of the District Court shall be requested to sign the conveyancing documents pursuant to section 38A of the District Court Ordinance.

14.  In the supporting affirmation filed by the wife and dated 30 March 2017, she deposes that:

(1) the husband, while continuing to occupy the matrimonial home all by himself, has failed to settle the mortgage repayment in full, as a result of which she has to pay the arrears out of pocket;

(2) the husband has changed the lock to the matrimonial home without her prior knowledge. As a result, she is unable to allow access for potential purchasers to inspect the matrimonial home;

(3) On those occasions where potential purchasers are allowed into the matrimonial home for inspection, the husband would lock all the doors therein to prevent a full and comprehensive inspection;

(4) As a result, the matrimonial home is still not sold even though the deadline provided in the Consent Order, ie 21 March 2017, has well passed.

15.  The husband did not turn up in the call over hearing of the wife’s summons on 5 June 2017, despite that service of the same was effected on him. The matter was thus adjourned to 29 June 2017.

16.  On 29 June 2107, the husband turned up.  During the hearing, he agreed that he has changed the lock to the matrimonial home and has not given a set of new key(s) to the wife. He also conceded that albeit he was in sole occupation of the matrimonial home, he has not paid for its mortgage repayment since December 2016, which meant that the wife has to bear the mortgage repayment during this period, let alone that she has to shoulder all children expenses by herself.

17.  After a brief discussion of the case, the matter was adjourned for parties to attempt negotiating for settlement.

18.  When the case was re-called, the husband finally confirmed that he was willing, among other things, to:

(1) open the bedrooms of the matrimonial home for property viewing;

(2) move out of the matrimonial home on/before 29 August 2017;

(3) agree that the wife shall have the conduct of sale;

(4) agree that his 50% share of the mortgage repayments will be paid by the wife initially and for the time being, and the same shall be deducted from his share of the net sale proceeds.

19.  Accordingly, the Order was made in the hearing of 29 June 2017.  Almost 3.5 months later, ie on 16 October 2017, the husband takes out his summons for leave to appeal.

Applicablelegal principles

20.  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.

21.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  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” (See: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011).

22.  On the other hand, under Order 58 rule 2(4) of the Rules of the District Court, Cap 336H, the husband should have filed his leave to appeal application within 14 days from the date of the Order. It is accepted by him that his application for leave to appeal is out of time.

23.  The court has a discretion to grant leave to appeal out of time. For the benefit of the husband (who is unrepresented in this hearing), I shall set out the factors for consideration, namely:

(1) The length of delay;

(2) The reason(s) for delay;

(3) Prospect of success of the intended appeal application;

(4) Whether the grant of leave to appeal out of time would cause prejudice to the opposite party.

(See: LSW v LMYM, HCMP 1085/2006; 黃對潘, HCMP 2749/2014)

Delay

24.  To begin with, the husband accepts in this hearing that there is a delay on his part in taking out his application. He also accepts that the delay is a serious one. Yet, he has not provided any reason(s) for his delay in his supporting affirmation. In all fairness to him, I invite him to give his explanation orally. He purports to give only one reason for the delay, ie he is not aware of the content of the Order until he has received the same from the wife’s former solicitors.

25.  I would reject his explanation outright. It is inconceivable and impossible that he is unaware of the terms of the Order because he was there and had fully participated in the hearing of 29 June 2017, which lasted from about 10 am until about 3.30 pm.  He is an educated person and has obtained qualification of an auditor. He has not advanced a case that he is a person under disability, so that he would have difficulty in understanding the proceedings and what he has agreed during the hearing.  

26.  Besides, according to the court records, the Order was sealed and filed on 31 July 2017. The husband has not explained why it takes him until 16 October 2017 to lodge his summons for leave to appeal.

27.  Upon due consideration, I am unable to accept his reason for delay.

Prospect of success

28.  Be that as it may, the more important factor to consider here is whether he will have a reasonable prospect of success in his intended appeal.  In his supporting affirmation (dated 16 October 2017), he purports to give the following brief reasons (in English translation):

“The matrimonial home [full address] is a self-owned property purchased by way of a government loan obtained by me. It is my housing benefit in Hong Kong. It is also my only residence. I have no means to move out from it now.”

29.  It is not clear to this court, despite that I have asked him to clarify it during this hearing, if the husband is now trying to suggest that the matrimonial home was purchased by him, so that the wife should not have any right to share, or to share that much of, its interest.   If he was really so suggesting, then I have to point out that this is a novo argument of him which has not been claimed by him in any of the prior hearings or in the FDR. It is now too late for him to put forward this argument. In any event, this argument has overlooked the indisputable fact that the wife has also contributed to the payment of mortgage repayment.

30.  More importantly, he has not lodged any appeal against the Consent Order, which is the primary order providing for the sale and sharing of the matrimonial home and which leads to the consequential directions set out in the Order (that is now under appeal). He is thus still bound by the Consent Order under which the matrimonial home has to be sold.

31.  Furthermore, one must not overlook the prejudice that would cause to the wife if his leave to appeal out of time is allowed.  As a matter of fact, the wife, now acting in person in this hearing, submits that the husband is now enjoying the occupation of the matrimonial home all by himself without paying for its mortgage, let alone children maintenance. According to her Form E, her totally monthly expenses are about $59,000. She has been shouldering the mortgage repayment and all children expenses in the last 10 months, which she finds it difficult to sustain without affecting the children’s status quo arrangement and in the result, she has to cut their tutorial and interest classes. She complaints that the husband is merely employing a delaying tactic to vacate from and sell the matrimonial home.

32.  It must be remembered that the intention of selling the matrimonial home is not only for asset distribution, but also for the husband, who claims that he has difficulty in making financial provision for his own children, to realise sufficient funds for children maintenance way forward. In my view, to grant leave to appeal out of time would further delay the achievement of this intention which in turn is not in the best interest of the children of the family. To safeguard the best interest of the children of the family is the paramount duty of the family court. 

33.  In view of the above, I cannot see the husband would have any reasonable prospect of success in his intended appeal, and thus leave to appeal out of time should not be granted to him.

Conclusion

34.  Due to the matters set out above and for completeness, I would repeat what I have concluded and ordered in this hearing:

(1) The husband’s summons dated 16 October 2017 for leave to appeal out of time is dismissed;

(2) There be no order as to costs of this application.