CM v. GRP

FCMC 1915 / 2019

[2024] HKFC 51

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1915 OF 2019

________________________

________________________

________________________

DECISION
( Summary assessment of costs )

________________________

Background

1.  In this decision, I shall continue to address the petitioner as the wife, and the respondent as the husband, despite that their marriage has ended in 2022 with the grant of the decree absolute.

2.  On 18 February 2022, I handed down my judgment of the ancillary relief trial (“Judgment“), ordering, among other things, that:

(1)  the matrimonial home (in Tai Po)  held in the sole name of the husband shall be sold within 6 months of the grant of the decree absolute at $11.38 million or market price agreed by both parties; and

(2)  upon its sale, the net sale proceeds, after deducting the necessary expenses of the sale, shall be apportioned to the wife and the husband under the ratio of 33.2% and 66.8% respectively.

3.  It is indisputable that after the Judgment, the wife has relocated back to Denmark with the children of the family, whereas the husband has returned to his home country, Germany.

4.  For reasons which will become clear later in this decision, the matrimonial home has not been able to be sold within the time ordered by the court, ie by November 2022.[1]

5.  On 7 August 2023, the husband (then no longer legally represented)  filed a summons (“Summons”), seeking an order like this:

(1)  the wife shall be ordered to vacate the ancillary relief notice registered at the Land Registry against the matrimonial home;

(2)  the husband shall be allowed to reduce the listing price of the matrimonial home within the range of 15% and accept the offer;

(3)  clarification should be made by the court that the redemption money of the existing mortgage of the matrimonial home shall be considered as part of the expenses of the sale and be shared equally by both parties;

(4)  his summons to be heard by way of a video call with the wife (living in Denmark)  and the husband (living in Germany);

(5)  costs of the application.

6.  The Summons was returnable before this court on 7 September 2023, which was further adjourned to 8 September 2023, but not to a later date because the husband had to fly back to Germany in the evening of 8 September 2023. Unfortunately, black rainstorm warning signal was issued for 8 September 2023. His summons had to be refixed to 27 December 2023, and further refixed to 29 January 2024 upon the joint application of both parties.[2]

7.  The wife did not appear in any of the hearings in relation to the Summons, nor has she filed any evidence to oppose the Summons.

8.  In the hearing of 29 January 2024, I gave time extension to the husband to sell the matrimonial home and ordered that an updated valuation of the matrimonial home be obtained. I directed that the ancillary relief notice registered by the wife against the matrimonial home at the Land Registry be vacated, in order to facilitate the sale of the matrimonial home. I awarded costs in favour of the husband, to be summarily assessed (“the 29/1/2024 Order”).

9.  For the purpose of such summary assessment of costs,  I directed that the husband shall file and serve an affirmation setting out in an itemized table the amount of the costs he is claiming, with all documentary proof on or before 5 February 2024, and that the wife shall file and serve her affirmation in opposition to the husband’s affirmation on or before 19 February 2024, failing which it will be deemed that she has no objection to his claimed costs.

10.  This is my decision on the summary assessment of costs of the Summons.

Respective stance of the parties

11.  The husband claimed a total costs of $72,447 which comprised of: [3]

	Items	Amount (HKD)
(1)	3 sets of return air tickets from Germany to Hong Kong	$43,260
(2)	Travelling expenses in Hong Kong	$800
(3)	Compensation for leave (3 days each return trip from Germany to Hong Kong)	$24,887
(4)	Legal fee for vacating the ancillary relief notice at the Land Registry	$3,500
		$72,447

12.  Simply put, the wife objected to all items of the husband’s claimed costs, arguing that such expenses could have been avoided “if [he] took a constructive and clear way of communication” with her. She said that she was all along “willing to compromise” and had in fact signed a consent summons filed on 20 March 2023 (“Consent Summons”), under which she agreed to extend the time limit to sell the matrimonial home at $11.38 million or other market price agreed by the parties, but if it was sold at a price lesser than $11.38 million, the sharing ratio would be varied to 46% (to the wife)  and 54% (to the husband). However, the Consent Summons was not approved by the court.

Why costs in favour of the husband

13.  To begin with, I have already awarded costs in favour of the husband in the 29/1/2024 Order. There is no appeal in respect of the said costs order. The only issue left for determination is the summary assessment of such costs.

14.  However, for the benefit of the wife (who chose not to attend all the relevant hearings of the Summons), I would explain the following.

15.  Since the Judgment, it is indisputable that the property market in Hong Kong has experienced a continuous downturn. However, the wife refused to give her consent to sell at a lower price.[4] She further rejected the husband’s proposal to have an updated valuation by an expert (fees to be shared equally), or to adopt online bank valuation.[5] She told the husband that he had no right to force her to accept a price lower than $11.38 million.[6] She proffered to offer 2 options to the husband[7]:

(1)  to rent out the matrimonial home for the time being in order to wait until the property market picked up again; or

(2)  if the matrimonial home was to be sold at a lower price than $11.38 million, the husband should compensate her the difference out of his share.

16.  As a result, the matrimonial home was not able to be sold within the time limit imposed by the Judgment, despite that there were offers to buy the matrimonial home at $10.5 million as in July 2022 or at $9.88 million as in January 2023.  This has created financial pressure on the husband, as he was shouldering the expenses of the matrimonial home, including monthly mortgage repayment (which has been adjusted upwards due to increase in interest rate)  and management fees etc.

17.  It was against such a backdrop that the parties filed the Consent Summons with the court. However, the court had grave concern as to the legal basis to vary the sharing ratio of the sale proceeds of the matrimonial home as ordered in the Judgment, and thus raised requisitions on 30 March 2023 to that effect. The requisitions were never satisfactorily answered, for at least 2 reasons:

(1)  It is trite to point out that the parties cannot, by their consent,  confer jurisdiction to the court;

(2)  A property sale order is not subject to variation : sections 6 and 11 of the Matrimonial Proceedings and Property Ordinance, Cap 192.

18.  As such, the Consent Summons was never endorsed and approved by the court.

19.  The wife had at some stage suggested to the husband that he should rent out the matrimonial home for the time being. However, the husband was right in replying that this would be in contradiction to the time limit imposed by the Judgment to sell the matrimonial home.

20.  At some other stage, the wife made another suggestion to the effect that if the Consent Summons was not able to be endorsed by the court, the parties should sign a private agreement to the same effect. This was rightly and legitimately rejected by the husband.

21.  It is thus clear to me that the wife was unreasonable in refusing to reduce the selling price of the matrimonial home and in suggesting that the husband should compensate her of the difference in price, to the extent that the sharing ratio of the sale proceeds given in the Judgment would be varied. The downturn in the property market is something beyond the control of the parties. It is unfair of the wife to ask the husband to solely take up the burden and consequences of the drop in market value of the matrimonial home.

Assessment of costs

22.  Both the husband and the wife were acting in person for the purpose of the Summons. Hence, Order 62 rule 28A of the Rules of the High Court, Cap 4A applies. The rule substantially provides,

(1)  On a taxation of the costs of a litigant in person there may, subject to the provisions of this rule, be allowed such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by a solicitor on the litigant’s behalf;

(2)  The amount allowed in respect of any item shall be such sum as the taxing master thinks fit not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the taxing master would have been allowed in respect of that item if the litigant had been represented by a solicitor;

(3)  Where in the opinion of the taxing master the litigant has not suffered any pecuniary loss in doing any work to which the costs relate, he shall not be allowed in respect of the time reasonably spent by him on the work more than $200 an hour.

23.  In Cheuk Shu Yin v Law Yeuk Kan & Another [2018] 2 HKLRD 249, Chu JA (as she then was)  explained the costs of a litigant in person as follows:

“4. As to the legal principles applicable, since the two defendants are not represented, the provisions in Order 62, rule 28A of the Rules of the High Court, Cap 4A, apply. The Court of Appeal gave a clear explanation on the amount of costs a litigant in person may be awarded in FOK Siu Wing v ICAC (unreported, CACV341/2005, 27 April 2006):

(1)  If a litigant in person, who is gainfully employed, needs to do the work in relation to the litigation during his working hours, the maximum costs allowed is two-thirds of the sum which would have been allowed to a solicitor for doing that work.

(2)  If the litigant in person has no job or could handle the work in relation to the litigation at his spare time, he has not suffered any actual pecuniary loss and hence shall not be awarded costs under the indemnity principle of the common law. However, pursuant to Order 62, rule 28A(3), he may be allowed costs of not more than $200 per hour. The number of hours allowed in Order 62, rule 28A(2)  is the time a solicitor would have spent on that item, not the time the litigant in person has actually taken.

(3)  If the litigant in person has no job but claims to have suffered pecuniary loss, he will need to prove his claim by an affirmation, which would include providing proof of his academic qualifications, working experience, loss of income etc.

5.  Moreover, it is also stated in paragraphs 13 and 14 of Practice Direction 14.3 that a broad-brush approach will be taken by the Court in the summary assessment procedure; the Court will not embark on a mini-taxation; also, the Court will, so far as possible, ensure that the figure of the costs is not disproportionate and/or unreasonable having regard to the nature and circumstances of the case and the legal proceedings and the underlying objectives stated in Order 1A of the Rules of the High Court.  The Court will carry out the assessment by a global approach and an item by item approach.  If the costs as a whole are not disproportionate, then the Court can accept all reasonably incurred items and allow a reasonable amount.  If the costs as a whole appear disproportionate, then the Court must be satisfied that the work in relation to each item was necessary and that the cost of the item is reasonable before the cost of the item will be allowed: Poon Shu Fan v. Wong Tin Yan [2012] 5 HKLRD 512.  The Court may refuse to accept an exaggerated bill of costs and tax the costs as a whole by a broad-brush approach according to the complexity of the case and the participation of the Receiving Party without carrying out an item by item assessment.”

24.  Applying the above principles to this case, I have the following comment and ruling:

(1)  The husband was all along legally represented in the ancillary relief trial. However, he represented himself in the Summons;

(2)  In order to take out and attend the hearings of the Summons, he claimed that he had to fly back from Germany to Hong Kong 3 times. However, in my view, the fees of air tickets are excessive. It was not justified for him to fly on Business Class or Premium Economy to Hong Kong;

(3)  The court has experience in dealing with similar applications in other family cases, whereby the party/parties therein sought further directions from the court as to, eg, further conduct of sale of a property, the determination of selling price, time extension to comply with a property sale order, etc. The legal costs awarded to the applicant party, who was legally represented, are in the region of $20,000 to $25,000;[8]

(4)  The husband’s claimed costs are roughly three times more than the usual costs awarded to a legally-represented party. This is grossly excessive;

(5)  Taking a broad-brush approach and in the overall circumstances of this case, there is no reason why the court should not rely on Order 62 rule 28A(2)  and award “two-thirds of the sum which in the opinion of the taxing master [and in this case, this court] would have allowed in respect of that item if the litigant had been represented by a solicitor”;

(6)  Hence, I am of the view that two-thirds of $25,000 would be the amount of costs awarded to the husband by way of summary assessment. I round up the figure to $17,000, which may be deducted from the wife’s share of the net sale proceeds of the matrimonial home upon completion of the sale.

25.  Lastly, I make no order as to the aforesaid Consent Summons (filed on 20 March 2023), with no order as to costs.

The petitioner (wife) acting in person

The respondent (husband) acting in person

FCMC 1915 / 2019

[2019] HKFC 298

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1915 OF 2019

________________________

________________________

________________________

J U D G M E N T
(Interim maintenance)

________________________

Introduction

1.  This is the Petitioner’s application by Summons dated 23 May 2019 for interim maintenance for the two children of the marriage, both girls: L, who is 4 and E, who was 6 months old at the time of the hearing. The Petitioner (wife) seeks $8,000 per month by way of interim periodical payments to her for the benefit of the children, comprising the following:

Expenses	(HK$) Amount (Estimate)
Food/Dining Out	5,000
Baby Products (i.e. pampers, milk powder)	1,000
Entertainment/ Presents	500
Clothing/Shoes	1,000
Miscellaneous	500
Total:	8,000

2.  The Respondent (husband) opposes the application.  He has been paying the majority of the general and children’s expenses, including the mortgage on the former matrimonial home, utilities, the salary of the domestic helper and school fees for the elder child, and he will continue to meet these payments.  He says that the current level of additional periodical payments, at $5,000 per month, is sufficient, having regard to these other direct payments, the needs of the children and his inability to pay any more. 

Background

3.  The parties were married in Hong Kong on 28 March 2013.  As noted, there are two children.  L attends K1 at ICHK, Hong Lok Yuen in Tai Po.  The younger child was born after the Petition was filed, and, according to the wife, after the parties separated.  The husband has weekly defined access to the children pursuant to the Court’s order of 27^th May 2019.  

4.  At the time of separation, the wife was employed as a part-time office manager at the Danish Chamber of Commerce earning $10,400 per month, with a yearly bonus equivalent to one month’s salary.  On 30^th May 2019 she gave notice to her employer and left that position on 30^th June 2019.  She has not worked since and is not planning to return to work in the near future, until the younger child is older.  It is relevant to note that the letter of employment with the Chamber of Commerce confirmed her starting date as 1 January 2017, when the older daughter was 19 months old. 

5.  The husband, who is 41, is head of sourcing for M S International Limited (MSI).  He receives a basic salary of Euros 6,800 or approximately HK$58,900 at present exchange rates, together with bonus payments averaging $14,750 per month, a housing allowance which he has elected to take in cash of HK$35,000 per month, and a “Home Leave Allowance” which at the time of his Form E was $14,968 per month but which has increased by a further HK$3,440 per month with the birth of the second child.  According to the income statement for the month of April 2019, he also received from his employer a school fee allowance of $37,784.  The husband affirmed that the Home Leave Allowance and school fee allowance are paid to him by reimbursement after providing his employer with receipts demonstrating payment: R affirmation, [10]. 

6.  The Court was informed at the hearing that the husband had been employed by his present employer since 2013, on a three-year contract renewed in 2016 and again in 2019 and that the terms of his employment had been set out in formal letters of employment.  None of the letters of employment were provided with the husband’s Form E, Answers to P’s Questionnaire or with his affirmation. Instead, the husband exhibited to his affirmation a letter from his employer dated 28 May 2019 confirming his position, salary and housing allowance. 

7.  It is not in dispute that during the marriage the husband was the main breadwinner and that the standard of living was commensurate with his income. The matrimonial home is some 850 square feet in size, with clubhouse and swimming pool.  The parties enjoyed yearly long-haul holidays.  The employment benefits enable the elder child to attend a prestigious kindergarten. 

The Law

8.  Section 5(2)(a) of the Matrimonial Proceedings and Property Ordinance (Cap 192) (“MPPO”) provides that the Court may make an order that “a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments and for such term as may be so specified.”  Such orders may be made in divorce proceedings “before or on granting the decree of divorce, of nullity of marriage or of judicial separation, as the case may be, or at any time thereafter”: s 5(1). 

9.  In HJFG v KCY [2012] 1 HKLRD 95 at [37]-[38] the Court of Appeal outlined the approach to be taken by the Court in determining applications for interim maintenance and maintenance pending suit:

“37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a Deputy Judge, in TL v ML [2006] 1 FLR 1263, 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the Judge’s reference to the source of those principles:

(a) The sole criteria to be applied in determining the application is “reasonableness” which is synonymous with “fairness”.

(b) A very important factor in determining fairness is the marital standard of living. That is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

(d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a “broad-brush” basis.”

The issue

10.  The question, therefore, is how much the husband should pay to the wife for the benefit of the children, having regard to all relevant considerations including the children’s needs, the income and expenses of the parties and recognizing the obligations the husband is already shouldering. 

Other income

11.  I have set out above the husband’s income from his current employment and the wife’s from her previous employment.  In her Form E the wife disclosed that she was also receiving rental income of DKK6,500 per month from an apartment she owns in Denmark, at Diget 28, DK-7500 Holstebro (“Holstebro”).  She listed monthly outgoings which she says exceed the rental income, being mortgage of DKK6,300, property tax DKK582, owners insurance DKK334, and income tax on the rental of DKK667 per month.  Her Answers to the husband’s Questionnaire on her Form E attached a statement confirming mortgage payments were being made via a Danish bank account on a quarterly basis of between DKK18,456 and DKK18,513. Her affirmation in support of the Summons stated this:

8. In relation to the rental income generated from the apartment in House (Diget 28, 7500 Holstebro, Denmark) as seen from my Form E, the current monthly rental income of DKK6,500 is insufficient to cover the mortgage instalments and outgoings in the total sum of DKK7,883.  Therefore it cannot generate any positive cash flow to cover my expenses in Hong Kong.

12.  In his affirmation dated 30^th May 2019, the husband did not contest this statement or the figures given, but said that the wife was also receiving income from another property, Centerparken 16, 2 TV 2500 Valby, Copenhagen (“Centerparken”), which the parties co-own: 

20. In respect of paragraph 8 of the P’s Affirmation, she also uses my rental income of DKK8,975 per month from the apartment, Centerparken.  I refer to GPR-8, rent from the apartment has been deposited into account 76001684687.  Whilst beneficially the sums of money in there belongs to me, the Petitioner have been utilizing the funds as her own to pay for expenses and have been constantly depleting this account.   

13.  In his Questionnaire dated 28^th May 2019 he asked about the depletion of funds:

Vestjysk Bank Account no. 76001684687

The account balance at 9^th January 2019 the account balance was DKK 80,348 and was constantly being depleted up to 23^rd April 2019.

Please explain the purpose and the whereabouts for the withdrawals from 21^st January 2019 to 29^th April 2019 in the total sum of DKK37,381.14 with documentary evidence.

14.  In her Answers dated 5^th July 2019, the wife responded:

Vestjysk Bank Account no. 76001684687

These are in advance tax payment to the Danish Tax (SKAT) department according to the Danish tax system.  The tax filing for year 2019 shall be done in 2020.  For reference please find the tax return for year 2018 which resulted in a tax liability of total DKK42,005.94. (Attachment – part 2.3.1)

15.  In her 2^nd affirmation dated 4 September 2019 in reply to the husband’s affirmation, she added this:

11…. [T]he Respondent’s claim that I earn a sum of DKK8,975 per month from apartment Centerparken is plainly wrong.  I have disclosed a copy of statement from account 76001684687 for the period of December 2019 to July 2019, a copy of the rental contract of the apartment Centerparken in My Answer and a copy of the email dated 6^th February 2019 in My Answer.  I do not dispute that the apartment Centerparken used to receive rental income of DKK8,875 up to February 2019.  However, the Respondent was well aware, the rental income deducting the management fee of DKK2,624, property tax DKK7,146 yearly and rental income tax yearly DKK42,005 (Refer to My Answer, part 2.3.1), the net earning amounts to DKK2,155 monthly which remains in the bank account to cover unforeseen costs.  I informed him by email on 6^th February 2019 that the tenant for the apartment Centerparken has given 3 months notice to terminate the tenancy.  As such, there was no income from the apartment Centerparken between February 2019 to July 2019, until a new tenant has been found in August 2019. (Underlining added)

16.  At the hearing on 3 October 2019, the debate as to whether the Centerparken property was producing an income for the wife continued.  At the end of the hearing, and in order to assist the Court to navigate the papers and locate relevant documents supporting each party’s position, the Court gave directions for each party to file brief further notes on the issue. 

17.  On 14^th October 2019 the wife filed a 7-page Note to which she attached a number of exhibits, including additional bank statements and other documents not previously disclosed with her Form E, her Answers or her affirmations.  On 21^st October 2019, in reply, the husband lodged Submissions objecting to the disclosure of these new materials which he asserted was “belated” and in any event “incomplete”.  Inter alia, the husband asserted that the Centerparken flat had been re-leased at below market value.  To these further Submissions, the husband attached three documents – again not previously provided – showing potential rental for both properties in the location of the Centerparken and Holstebro properties. 

18.  The Court did not grant leave for either party to adduce new evidence on the wife’s interim maintenance Summons.  To be clear, Court asked by the direction for brief notes from each party with bundle references to assist in identifying the documents already in the hearing bundles relevant to the question as to whether and if so how income net of expenses was being generated by the rental of either Danish property and how it was being put to use.  I have, however, read both additional submissions – being the Note of the Petitioner dated 14^th October 2019 and the Reply Submissions of the Respondent dated 21^st October 2019.  I have not had regard to any additional documents attached to the Note and Reply Submissions, and this judgment is based on the materials in the evidence filed at the time of the hearing. 

19.  It is apparent that there are disputes of fact over these two properties and the income they generate from being rented out.  In essence, the wife says that in respect of Holstebro the expenses including tax have exceeded the rental income and that in respect of Centerparken, the income, net of expenses, remains in the Danish bank account to allow for future contingencies.  The husband disputes at least the assertions in relation to Centerparken and claims that the wife has been guilty of re-leasing the property at a lower-than-market rental: DKK6,975 per month compared with the previous rental of DKK8,975 per month.  He also claims that the wife has inflated the expenses and included in her list of deductions unrelated expenditure, such as a fee paid to the Danish Government for E’s passport.  

20.  These issues of fact cannot be resolved at a hearing of this nature: see paragraph 11.79, Rayden and Jackson on Divorce and Family Matters (18^th Edn).  For the purposes of the present application, I am not satisfied that either Danish property is generating a net income which the wife is accessing to support her expenses and those of the children.  If subsequently this is shown to be in error, the matter can be corrected as part of the broader determination of the claims for ancillary relief. 

21.  There were other disputed elements relating to income and earning capacity.  For the husband, it was said that the wife can, and should return to work to help support herself and the children.  The husband’s counsel submitted this should happen “immediately”.  He argued that the wife could do some language teaching or translation work, as she is trilingual, perhaps producing an income of $3,000 per month.  No documents were provided to support this assertion. It is noted that this amount is the difference between the parties on how much should be paid per month in interim maintenance. 

22.  For the wife it was submitted that spending time away from work taking care of the new daughter and the elder daughter was reasonable.  She pointed to the fact, noted above, that she did not return to work with the Danish Chamber of Commerce until January 2017 when the older daughter was 19 months old.  To say the least, it is in my view reasonable for her to take some time away from work to take care of her newborn and the elder daughter who is still of tender years, particularly so given the stress arising from the breakdown of the marriage.  To be fair, it did not appear to be the husband’s position that the wife should not have resigned her position with the Chamber of Commerce, but that she should be engaging in some part-time translating or tutoring work at home. 

23.  For the purpose of this application, I think that it is reasonable for the wife at present not to doing work of the kind suggested and I will not attribute to her a nominal income. 

24.  The wife for her part asserted in her affirmation that the husband had misrepresented his income by failing to disclose the education allowance in his Form E. 

25.  The husband denied this:

9. [The Petitioner] knows I receive a net basic salary of EUR 6,800 or approximately HK$58,888 per month (1 EUR to 8.66 HKD according to HSBC daily exchange rates on 29^th May 2019) and cash Housing Allowance of HK$35,000.00.  … Deducting my mandatory MPF contribution of HK$1,500.00, my monthly income is HK$92,388.00.  As per the email dated 2^nd May 2019 from my employer, my cash housing benefits will be reduced to HK$24,500.00 subject to the change in my marital status.

10. All allowances, inter alia, school fees, Home Leave Allowances are all reimbursed by my employer subject to proper receipts and discretionary approval.  I do not receive a sum of HK$37,784.00 for school fees to be spent at my disposal and I have to pay first before getting reimbursed.  As the Petitioner also intends to have the Children attend school in Denmark, my employer will not provide school fee reimbursements for education outside of Hong Kong.  

Needs

26.  In her Form E (dated 25 April 2019) the wife set out her expenses as follows:

Part 4  Current Monthly Expenses

4.1  General

Item	Amount
Rent	N/A
Mortgage instalments	DKK6,300
Utilities (electricity, gas, rates, telephone & water)	HK$230
Management fees	N/A
Food	HK$1,000
Household expenses	N/A
Car expenses	N/A
Insurance premia	N/A
Domestic helper(s)	N/A
Other (specify) Food, Grooming and Misc. for Pet Dog	N/A
Total monthly household expenses	HK$1,230.00 & DKK6,300

4.2  Personal

Item	Amount
Meals out of home	$2,000
Transport	$500
Clothing / Shoes	$1,000
Personal grooming (including haircut and cosmetics)	$600
Holidays	N/A
Medical / Dental	N/A
Tax (Property Tax)	DKK582
Insurance premia	N/A
Interim maintenance	N/A
Contribution to parents	N/A
Dependent family members	N/A
Others (specify) -  Mandatory owner’s insurance -  Rental income tax	DKK334 DKK667 (approximately)
Total monthly personal expenses	HK$4,100.00 & DKK1,583

4.3  Children

Item	Amount
School fees	N/A
Extra tuition fees	N/A
School books and stationery	N/A
Transport to school (including school bus)	N/A
Medical / Dental	N/A
Extra Curricular Activities	N/A
Entertainment / presents	$500
Holidays	N/A
Clothing / Shoes	$3,000
Insurance premia	N/A
Lunches and pocket money	N/A
Other Transport	N/A
Child-minding fees	N/A
Uniform	N/A
Others (specify)	N/A
Total monthly expenses for children	HK$3,500
Total Monthly Expenses	HK$8,830 & DKK7,883

27.  To her 2^nd affirmation the wife exhibited receipts for “food and general household expenses” for May to July 2019.  These amounted to HK$7,485.46 for May 2019, HK$7,404.84 for June 2019 and HK$13,438 for July 2019 (which included a trip to Denmark).  I accept that in addition to these she is likely to have incurred other expenses for herself and the children for which she did not keep receipts. 

28.  I further accept that those receipts she did provide are in respect of expenses not solely relating to the children. 

29.  The question is whether the sums set out in paragraph 1 of this judgment are reasonable, and in my view, they are.  In some months the food bill for the children may be less than HK$5,000, and in other months it may be more. Similarly, the amount spent on baby products including nappies and other necessities such as clothing and shoes will fluctuate. It is reasonable to include a small amount for entertainment/presents and for miscellaneous expenses, and this she has done.  I have taken into account the existing support by the husband for general and child-specific expenses which is considerable.  I allow the amount as claimed.

Capacity

30.  Does the husband have the capacity to pay an additional $3,000 over and above what he is already paying? 

31.  In his Form E, filed 10 May 2019 the husband listed his expenses as follows:

Part 4  Current Monthly Expenses

4.1  General

Item	Amount
Rent	15,339
Mortgage instalments	26,061
Utilities (electricity, gas, rates, telephone & water)	2,776
Management fees	3,162
Food	7,000
Household expenses	3,000
Car expenses	N/A
Insurance premia	654
Domestic helper(s)	4,500
Other (specify) Property Tax fee in Tai Po and Tax and Management Fee for House and Apartment in Denmark	7,700
Total monthly household expenses	HK$70,192

4.2  Personal

Item	Amount
Meals out of home	2,000
Transport	1,000
Clothing / Shoes	5,000
Personal grooming (including haircut and cosmetics)	1,000
Entertainment / presents	2,000
Holiday	3,000
Medical / Dental	1,000
Tax	0.00
Insurance premia	0.00
Interim maintenance	7,000
Contribution to parents	N/A
Dependent family members	N/A
Others (specify)	0
Total monthly personal expenses	HK$22,000

4.3  Children

Item	Amount
School fees	36,900
Extra tuition fees	1,000
School books and stationery	N/A
Transport to school (including school bus)	3,900
Medical / Dental	500
Extra Curricular Activities	500
Entertainment / presents	1,000
Holidays	2,000
Clothing / Shoes	1,500
Insurance premia	600
Lunches and pocket money	1,000
Other Transport	500
Child-minding fees	4,500
Uniform	0.00
Others (specify)	0.00
Total monthly expenses for children	HK$53,900
Total Monthly Expenses	HK$146,092

32.  In his affirmation, the husband refined his expenses as, firstly, those he was paying since the beginning of the marriage and was continuing to pay (paragraph 11):

Expenses	HK$ Amount
Matrimonial Home Mortgage	26,061
Matrimonial Home Management Fees	3,162
Matrimonial Home Government Rates and Rent	431
Matrimonial Home Insurance	100
Electricity	886
Water	395.40
Town Gas	581.21
Domestic Helper Salary	4,500
Domestic Helper Insurance	51
Current Interim Maintenance	5,000
Baby Products	1,080
Family Health Insurance	7,820
Life Insurance	554.82
Denmark Apartment Tax and Management Fees	6,761.88
Sub Total	57,384.31

33.  Secondly, rental/hotel expenses of $16,089.92 per month for his own accommodation (paragraph 12).

34.  Thirdly, his own personal expenditure (paragraph 13) of $17,000 per month. 

35.  Fourthly, the school fees, which are paid out of his pocket and then reimbursed by the employer:

School fees	$36,900 per Term
School uniform	$884
School bus fees	$3,960

(paragraph 15)

36.  He therefore affirmed that his total monthly expenditure, aside from the school expenses, is approximately $90,500 per month (paragraph 14). 

37.  It is apparent from the husband’s list of expenses at §32 above that the claimed expense of $6,761.88 in respect of the Denmark tax and management fees is not in fact an expense the husband is required to pay each month from his income, but is being settled out of the Denmark account into which the rental income is received.  The exhibited bank statement GRP-8 was the same statement already produced by the wife with her Form E.  Deducting this amount revises the total to HK$50,622.  The wife submitted during the hearing that the health insurance was in fact reimbursed by the employer.  This was not clear on the papers as, as noted, the Court was not supplied with a copy of the husband’s terms of employment.  For the purposes of this application I am not prepared to assume that the husband does receive reimbursement.  I also accept there may be months in which the expenses are perhaps slightly higher than he lists, and will proceed on the basis that he has unavoidable expenses of $52,000 in addition to his own rental and personal expenses. 

38.  As to these, I note that his “rental” is for hotel accommodation, which seems reasonable as the affirmation was filed within a fairly short period after separation.  I was told at the hearing he has now found a studio apartment at $12,000 per month, and was required to pay a deposit equivalent to 2 months’ rental. 

39.  In addition, he affirmed that he spent $17,000 per month on other personal expenses, including $9,000 for food. 

40.  As to food the husband explained in his affirmation that

26. … I am consistently on global business travels and would regularly incur expenses for eating out of home and at home.  For clarification purposes, I incur an estimate total sum of HK$9,000.00 and this sum is a substantially conservative estimate. 

41.  At the hearing, counsel for the husband said that the entire sum of $9,000 was for meals out of home.  This was not quite the husband’s evidence which was that this amount was for “eating out of home and at home”.  It also represented quite a shift from his Form E, which was affirmed earlier in May 2019 (10^th May 2019), in which he said that he spent only $2,000 on meals out of home and $7,000 at home.  The Court was not taken to any receipts or credit card or bank transactions to substantiate the revised estimate. 

42.  Further, and connected with the fact the husband did not produce his employment contract/letter of employment, it is not possible to know whether the husband is reimbursed by the employer for the proportion of the $9,000 which relates to his business travel.  There is some indication in the papers that he does receive reimbursement for business travel expenses: the husband attached updated bank statements of his HSBC Premier Account 491-520961-833 and the statement for 26th March 2019 shows a payment from MSI on 22^nd March 2019 for “Trip to Shanghai” of HK$14,081.25.  This trip seems to have taken place earlier in March 2019: statement of HSBC Premier Credit Card dated 12^th March 2019 attached to the husband’s Answers to the wife’s Questionnaire.  The reimbursed sum might well be an airfare, or hotel accommodation (which might also include meals at such a hotel).  For the purpose of the broad brush assessment I am required to make, I am not satisfied that the husband is paying the $9,000 out of his own pocket each month and not being reimbursed for at least some of the amount. 

43.  I also consider that he has the capacity to reduce his spending on some of the items making up the $17,000 personal expenses, including on clothing.  I have already noted that he has reduced his accommodation costs.

44.  Taking these matters into account, it seems to me that the husband has the capacity to afford the additional $3,000 per month over what he is presently paying to the wife for the children. 

Costs

45.  The wife has been successful in her application and I see no reason why she should not have her costs.  I therefore make an order nisi to be made absolute in 28 days that the husband do pay the wife’s costs of and arising out of her Summons dated 23^rd May 2019, on a party and party basis and to be taxed if not agreed. 

Order

46.  I therefore make the following Order on the Summons:

(1)  The Respondent do pay interim maintenance to the Petitioner for the children of the family the sum of $4,000 per child per month, total $8,000 per month, the first payment to be made on 1^st of December 2019 and thereafter on the first day of each succeeding month until further order.

(2)  There be an order nisi that the costs of and arising out of the Summons be to the Petitioner to be taxed if not agreed on a party and party basis.  This to be made absolute after the expiry of 14 days from the handing down of this Judgment.

Ms. G Mak of Yu Sun Yau Mak & Lawyers for the Petitioner

Mr. Sunny Chan instructed by David Ravenscroft and Co for the Respondent