Cmw v. Wty
Read the full judgment text of FCMC 8759/2010 on BabelCite. This Family Court judgment was delivered on 2 October 2015 before Deputy District Judge G. Own.
Matrimonial proceedings – Ancillary relief – Preliminary issues – Property – Joinder of third party – Late application – Civil Justice Reform – Costs – Whether late joinder application to bring in Petitioner's Elder Sister should be granted – Court dismissed application due to lateness and lack of justification under Civil Justice Reform objectives of expedition and procedural economy – Respondent failed to explain delay despite having joined mother earlier – Trial dates for preliminary issues stand – Respondent ordered to pay costs of Summons to Petitioner and Intervener.
Legal issues: Late joinder application · Costs of Summons
Outcome: Respondent's Summons for joinder dismissed; Trial dates stand; Respondent to pay costs.
Cites 2 cases
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FCMC 8759 /2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 8759 OF 2010 ----------------------------
------------------------- DECISION ------------------------- Introduction 1.Today is the 3rd Pre-Trial Review hearing (“PTR”) of the trial of the preliminary issues. As per the Order of Judge Melloy dated 14 May 2015, and also in 2 previous Orders of the learned Judge dated 9/10/2013 and 31/12/2014, the preliminary issues relate to two properties. One of the properties is situated at Wong Tai Sin which was the former matrimonial home of the parties. I will refer to this property as the “FMH”. The other property is situated at Tai Po which I will refer to it as “TP property”. 2.The FMH was registered under the name of the Respondent (Husband) and his elderly mother as joint tenants. The TP property was registered under the sole name of the Petitioner’s elder sister whom I will refer as “Elder Sister”. 3.The Respondent only engaged lawyers Messrs. C.Y. Lam & Co., to represent him at the 2nd PTR hearing on 18 September 2015. The Notice to Act was filed on 17 September 2015. Background 4.It is pertinent to set out the background of the progress of this case which is somehow convoluted. This is a 2010 case. Decree Nisi was granted in May 2011. There are 2 children of the family of the age of 15 and 16 at this hearing. After a 6-day trial in June/July 2012 before the learned Judge Melloy, the Petitioner was granted sole custody, care and control of the children. Access was suspended for 6 months pending a further order save for indirect access by e-mail, text and/or letter. There shall be a supervision order for 6 months. A further social investigation report for access was called for. 5.Following determination of the children’s matter including access, proceedings on ancillary reliefs were revived through various 1st Appointment hearings. There are exchange of Form Es, questionnaires and answers by the parties. On 9 October 2013, the learned Judge adjourned the 1st Appointment hearing and call-over hearing in relation to the preliminary issues of the FMH and TP property to 31 December 2013. Leave was granted, apart for filing of questionnaires and answers, for the Petitioner to file her Affirmation in reply to the Respondent’s mother and Respondent’s brother’s affirmations in respect of the FMH. The Respondent, his mother and brother were given leave to file any affirmation in response, if necessary. 6.Under the same Order of 9 October 2013, the Elder Sister was directed to file an Affirmation in relation to her interest in the TP property within 28 days of the Order. Pursuant thereto, the Elder Sister filed her Affirmation on 6 November 2013. 7.At the next hearing on 31 December 2013 when both the Petitioner and Respondent were present, the learned Judge made the following Orders :-
8.I will refer to the dates scheduled for 8th and 9th May 2014 as the “First Trial Dates”. 9.On 2 January 2014, the Respondent issued a Summons returnable on 27 January 2014 for leave to bring in his mother as Intervener. The learned Judge granted this joinder application. 10.On 11 April 2014, the learned Judge ordered that the trial dates of the preliminary issues, and also the FDR hearing, be both vacated. 11.On 12 June 2014, the learned Judge ordered that the preliminary issues hearing in relation to FMH and the TP property be set down for a 3-day trial on 15, 16 and 17 October 2014 (“Second Trial Dates”). 12.On 27 August 2014, the learned Judge ordered that there shall be a further PTR on 1 September 2014. 13.On 1 September 2014, the learned Judge ordered that there shall be a further PTR on 22 September 2014. 14.On 22 September 2014, the learned Judge ordered that the Second Trial Dates (that is, 15 to 17 October 2014 inclusive) be vacated, the preliminary issues hearing be adjourned to a date to be fixed. There be a call over hearing on 3 November 2014 at 11:00 a.m. 15.The scheduled call over hearing on 3 November 2014 was vacated by a consent summons. The learned Judge then re-fixed a PTR on 12 December 2014. 16.At the PTR hearing on 12 December 2014, the learned Judge ordered that the preliminary issues hearing be set down for trial on 29 and 30 April 2015 at 10:30 a.m. (“Third Trial Dates”). 17.Counsel Mr. Yim who appeared for the Petitioner for the trial on 29 and 30 April 2015 informed this Court that all parties, including the Intervener, before giving evidence, had had the opportunity to negotiate and explore chances of settlement through without prejudice discussions outside courtroom. It was only on the second day (that is, 30 April 2015) in the afternoon around 2 p.m. that the Respondent suddenly disappeared. The discussion was then ended with no conclusion save and except the learned Judge have had to adjourn for a further hearing on 14 May 2015. To be fair to the Respondent, Mr. Yim confirmed both the Petitioner and the Intervener received telephone calls from the Respondent saying that he was not feeling well that afternoon. 18.On 14 May 2015, the Respondent failed to appear. The learned Judge transferred this case to this Court. Meanwhile, the learned Judge fixed a PTR in this Court on 13 August 2015. The learned Judge also set down the preliminary issues for a 2-day trial on 22 and 23 October 2015 at 10:30 a.m. (“Fourth Trial Dates”). The hearing on 13 August 2015 19.On 12 August 2015 which is the date before the PTR hearing, this Court received a facsimile from the Respondent as follows :-
20.The Respondent did not attend the hearing on 13 August 2015. In light of the said letter and the imminence of the trial dates scheduled for 22 and 23 October 2015 and on all fairness to the Respondent, this Court adjourned for a 2nd PTR on 18 September 2015 in case the Respondent would appear with legal representation as he said so in his letter. The hearing on 18 September 2015 21.As said earlier, the Respondent instructed Messrs. C.Y. Lam & Co. as his lawyers and the Notice to Act was filed on 17 September 2015 (that is, the day before the hearing). 22.At the hearing, Mr. Lam acting for the Respondent orally submitted to the Court that there would be a “joinder application” by the Respondent to bring in the Elder Sister. There was no draft Summons or Affirmation produced by Mr. Lam. Having heard the oral submission, this Court stood down the matter for lawyers for all the parties to consider the case management aspect since the intended joinder application to bring in the Elder Sister would trigger the so-called “ML v. TL” procedure referred to by the Court of Appeal in LWYA v. KYW & Anor (per Hon Kwan JA at paragraph 30 in CACV Nos.151 and 152 of 2013). At the end, Mr. Lam confirmed that the joinder application would be filed as soon as possible. 23.At the conclusion of the hearing and, upon Mr. Lam’s undertaking to file and serve the Respondent’s Summons for joinder and the supporting affirmation within 7 days, this Court adjourned for a 3rd PTR today. The scheduled Fourth Trial Dates remain in place. The hearing on 2 October 2015 (that is, today’s hearing) 24.The Respondent’s Summons was issued on 25 September 2015 together with the Respondent’s Affirmation which were served on all parties, including the Intervener’s lawyers. 25.The Elder Sister (that is, the Intended 2nd Intervener) did not attend this hearing. Counsel Mr. Yim on instructions from the Petitioner handed to the Court, with copies to all other parties, a letter in Chinese signed by the Elder Sister opposing the Respondent’s joinder application where she wrote : “…基於上述案件的答辯人WTY先生對本人作出無憑無據的指控，現在本人正式向法庭嚴正地提出，反對答辯人向法庭申請加入本人在該案件中。” 26.Mr. Lam, in reply to the Elder Sister’s opposition, submitted that the Elder Sister had not filed any affirmation stating detailed grounds of opposition nor said so in the Chinese letter. On the other hand, there is affirmation evidence from the Respondent of which the Elder Sister does not say the contents were fabricated. 27.Throughout the hearing, Counsel Mr. Yim and the Intervener’s lawyer Mr. Man have both kindly assisted this Court as to the chain of events which had happened resulting in Fourth Trial Dates have to be fixed. Having had trial dates fixed and vacated for 3 times is extraordinary. Counsel Mr. Yim assisted this Court with what had actually happened during the 2 days at the Third Trial Dates back in April this year. I am grateful for both Mr. Yim and Mr. Man’s assistance. The Respondent’s joinder application 28.In the Respondent’s supporting Affirmation, the reason for bringing in the Elder Sister is that there was some sort of agreement, both oral and written, between the Petitioner and her siblings including the Elder Sister as to the beneficial ownership of the TP property which at all times was under the sole name of the Elder Sister. At paragraph 5 of his Affirmation, he deposed the Petitioner had revealed to him of the alleged agreement even before their marriage in 1997. At paragraph 6 of his Affirmation, he then deposed there are further terms of the agreement exposed to him in around 2007. At paragraph 11 of his Affirmation, he deposed the terms of the agreement are that the Petitioner and her siblings are each having one fourth beneficial interests in equal shares of the TP property. My views 29.The Respondent had not stated anywhere in his supporting Affirmation as to the lateness in filing his joinder application to bring in the Elder Sister. Mr. Lam, in an attempt to provide an answer to such question from this Court, submitted that the Respondent was acting in person and he was not familiar with the legal procedure. Nonetheless, Mr. Lam submitted that throughout the case the Respondent had been adhering to Court Orders the best he could. There was no indication or reference to him of the option of bringing in the Elder Sister. 30.With respect, I do not accept Mr. Lam’s explanation. First, it is trite that since the Civil Justice Reform was in place, any late applications especially those ‘last minute’ applications would only be accepted by the Court in exceptional circumstances and with good reasons. The Respondent failed to provide any reasons whatsoever for his joinder application to bring in the Elder Sister taken out at this late stage. 31.In Liu Chen v. Chan Poon Wing (HCPI No.779/2006, date of decision 7 October 2009) where Master Marlene Ng (as she then was) in a personal injuries case had said :-
32.In Rightbest International Limited v. DBS Bank (Hong Kong) Limited (HCA No.1099/2011, date of decision 29 August 2013) the learned Deputy Judge Marlene Ng (as she then was) at paragraphs 11 and 12 said :-
33.Still further, in a later case of So Sau Lai Connie t/a Wing Fung Trading Company v. DBS Bank (Hong Kong) Limited (HCA No.2807/2004), the learned Deputy High Court Judge Marlene Ng said :-
34.Although the above cases are all non-matrimonial in nature, the same principles apply to all kinds of late applications before the courts after the Civil Justice Reform. 35.Secondly, as rightly submitted by Counsel Mr. Yim, reasons such as change of lawyers or last minute engagement of legal assistance are no longer acceptable as good reasons (see DBS (Hong Kong) Limited v. Sit Pan Jit, HCA No.382/2009). 36.Thirdly, it was noted by this Court that the Respondent himself, who had all along been acting in person, had taken out a joinder application back in January 2014 to bring in his mother as Intervener for the FMH. The Order of Judge Melloy dated 31 December 2013 contained the pre-emptive clause :
Thus, the explanation of the Respondent was unfamiliar with legal procedure as his ‘reason for lateness’ put forward by his lawyers Mr. Lam simply could not stand. Quite contrary, there had been ample opportunity for him to do so. 37.Despite Mr. Lam’s submission, I have gone through the documents in these proceedings during this hearing. There are other reasons to support my decision that the Respondent’s joinder application to bring in the Elder Sister at this late stage must fail. 38.So far the Respondent had filed two Form Es. The first one was dated 10 September 2011. The second one was dated 2 February 2013. The Respondent is now claiming that the Petitioner has 1/4 share in the beneficial interests in the TP property in respect of which should be brought into the matrimonial pot in the ancillary reliefs trial. However, he had not asserted such position at the relevant parts of his Form Es, namely, Part 6 of ‘Order Sought’. Paragraph 6.1 requires the deponent to specify what kind of orders being sought. Paragraph 6.2 requires the deponent to identity any property of which transfer, settlement or sale is being sought. Paragraph 6.3 requires the deponent to identify any properties of which avoidance of disposition is being sought. Nowhere in his Form E had he ever asserted the Petitioner having had any beneficial interests in the TP property although he is now saying that he knew it as early as 1997 and 2007. 39.Since the learned Judge Melloy had directed the trial of the preliminary issues relate to both the FMH and the TP property, I tried to find how the TP property came into the arena forming the preliminary issues by referring to the previous Orders of Judge Melloy granted at 1st Appointment hearings and also those of the questionnaires and answers. 40.On 27 February 2013, the learned Judge Melloy directed the valuation of the FMH be agreed and in default of agreement, a single joint expert be engaged to provide a valuation report not less than 7 days before the Financial Dispute Resolution (“FDR”). There is no referral to the TP property in this Order. 41.On 16 May 2013, the Respondent served his questionnaire with questions about the TP property by asking the Petitioner to provide details of monetary or other consideration, private agreement between the Petitioner and her siblings in respect of parties’ respective interests in the TP property. 42.On 19 July 2013, the Petitioner provided her answers in respect of the Respondent’s questions as to the TP property. 43.On 9 October 2013, the learned Judge Melloy granted an Order of which the following paragraphs, inter alia, are important :-
44.It is noted that this Order contained the TP property. 45.Three things had happened since this Order dated 9 October 2013 was granted. First, the Respondent filed his Further Questionnaire on 16 October 2013 with questions on the TP property again. Secondly, the Petitioner filed her Further Answers on 6 November 2013. Thirdly, the Petitioner’s Elder sister filed her affirmation on 6 November 2013 pursuant to the said Order of Judge Melloy dated 9 October 2013. 46.On 31 December 2013 (which is the adjourned hearing from 9 October 2013), apart from the Respondent confirming a Summons would be issued to bring in his mother (see paragraph 36 of this Decision), the learned Judge Melloy fixed the First Trial Dates for the preliminary issues of both the FMH and the TP property. At paragraphs 1, 5 and 6 of the Order, the learned Judge directed :-
47.According to the records, there is a Questionnaire headed “Questions on Ms Cxx’s Affidavit of 6.11.13” with 8 questions which was filed on by the Respondent on 8 March 2014. Ms Cxx is the Elder Sister. Most of the questions in there referred to the TP property. Apparently this Questionnaire was filed pursuant to the said Order dated 31 December 2013 albeit late. Since the First Trial Dates were scheduled for 8 and 9 May 2014 coming up in two months’ time after the Respondent filed this Further Questionnaire, the learned Judge on all fairness made an Order on 11 April 2014 vacating the First Trial Dates and also the FDR hearing. She then directed a call-over hearing on 12 June 2014. The Petitioner was also directed as follows :-
48.As rightly submitted by Counsel Mr. Yim, the Respondent who had had the answers from the Petitioner as to his questions over the TP property would have ample time to take out the joinder application if he was not satisfied with the Petitioner’s answers. Even after the learned Judge Melloy had directed the preliminary issues to be tried involves the TP property, the Respondent with knowledge of the Petitioner’s Elder Sister’s affirmation and the Petitioner’s answers by that time (which is 31 December 2013 or earlier on 6 November 2013 respectively), took no steps whatsoever to file the joiner application. I agree with Counsel Mr. Yim. 49.Considering the Respondent’s joinder application, apart from the historic events which had happened, the underlying objectives of the Civil Justice Reform, the authorities set out above and the overall circumstances of this case, I have also taken into account the Fourth Trial Dates, namely, 22 and 23 October 2015 are simply 20 days ahead from today. Trial dates are ‘Milestone Dates’. The necessary implication that will arise from the Respondent’s joinder application is to vacate the Fourth Trial Dates and further re-fixing trial dates of the preliminary issue, not to say when the ancillary reliefs trial will take place. 50.Part A of the Practice Direction 15.12 (Matrimonial Proceedings and Family Proceedings) sets out the applicability of the Rules of the High Court and Rules of the District Court under the Civil Justice Reform to the Matrimonial Proceedings and the Family Proceedings with necessary modifications. At Part G (New Measures under the Civil Justice Reform), it provides that the Court may exercise the case management powers under Order 1B having regard to the underlying objectives of the Civil Justice Reform under Order 1A. 51.Moreover, Paragraph 42 of the Practice Direction 5.2 provides that :-
52.Active case management and the applicability of Practice Directions to Family Court cases are reinforced by the Court of Appeal in the case of Chan Cheung Ming Jacky v. Siu Sin Man (formerly known as Siu Kit Ling) [2014] 5 HKLRD 89, where Hon Lam VP at paragraph 46 of the Judgment said :-
53.Taking into account all the above reasons, I find the Respondent’s joinder application to bring in the Elder Sister at this stage must fail. Other Factors 54.As said, the Petitioner’s ancillary reliefs have yet to be determined after the disposal of the preliminary issues. Custody issue was resolved back in September 2012 after a 6-day trial. Three years have already elapsed with the question of ancillary reliefs nowhere close to trial. This is unacceptable and completely falls apart from the underlying objectives of the CJR on expeditiousness, procedural economy, fairness and fair distribution of court’s resources. 55.The other major factor in this case which must not be overlooked by the Court is the Intervener CLC. She is the Respondent’s mother of the age of close to 80 and at present living in an elderly home. She was joined in by the Respondent. From the records, she was joined in as Intervener on 27 January 2014 and the learned Judge Melloy saw fit to authorise the Official Solicitor to make enquiries as to her mental condition. Her lawyers Mr. Man acting on instructions of Director of Legal Aid reported her condition at present is stable and capable to attend trial to give testimony. However, the Intervener’s capabilities and memories have yet to be seen at the forthcoming trial. 55. The Respondent’s joinder application at this stage, with no explanation whatsoever as to the lateness, not only fly in the face of the CJR objectives, would also have a significant impact since the Fourth Trial Dates would have to be vacated, the already lateness in resolution of disputes would be further exaggerated, public funds would be escalated as both the Petitioner and Intervener are legally aided. Moreover, the Respondent’s asserted case as per paragraph 11 of his supporting affirmation that the other 3 siblings of the Petitioner are also beneficial owners might have the ramifications that further parties might be brought into the proceedings whether as witnesses or further interveners. 56.I have doubts and reservation about the way in which the Respondent conducted his case. His sudden disappearance on the 2nd day of the Third Trial Dates, namely, 30 April 2015 after lunch, the issuance of the joinder application only for his mother leaving behind the joinder application for the Petitioner’s Elder Sister to this late stage, considered objectively do give rise to some degree of suspicion of conscious manoeuvring (see Liu Chen, supra). The “TL v. ML” procedure 57.This Court noted the Court of Appeal’s decision in LWYA v. KYW & Anor (supra) as to the task of a judge in determining a dispute where third party is involved as to beneficial ownership of property in ancillary relief proceedings. In fact, the same procedure should be applied vis-à-vis the Petitioner and the Intervener who had joined in these proceedings back in January 2014. I confirmed with Counsel Mr. Yim and the Intervener’s lawyers Mr. Man that such procedure had not been followed. In fact, considering the age of the Intervener and the extent of the dispute in question, Mr. Man had no strong views as to the dispute between the Petitioner and the Intervener be resolved in the trial of the preliminary issues without applying the ML v. TL procedure. It was also submitted by Mr. Man that the Court of Appeal decision was well after the First Trial Dates were fixed. 58.Counsel for the Petitioner Mr. Yim invited this Court to consider this case as an exceptional case since Mostyn, Q.C. (as he then was sitting as a Deputy High Court Judge) in the ML v. TL & Ors (ancillary relief: claim against assets of extended family) [2006] 1 FCR 465, said those procedure should only ordinarily happen. Mr. Yim submitted the Court was given discretion, on a case to case basis, as to whether such procedure should be applied. Paragraph 37 of the Judgment is recited below :
59.Counsel Mr. Yim went further in his submission that since the Respondent had never filed any evidence or affirmation as to what case he is advancing against the Elder Sister over the TP property,, whether it is constructive trust, resulting trust or common intention so to speak, there is no basis as to how his points of claim could be pleaded. On such submission, I agree. I am also convinced by Mr. Yim that there remain discretion for the Court to exercise when, considering all the circumstances and the facts of the case in question, justice requires the matter be tried rather than adjourning it for compliance with the TL v. ML procedure. 60.In my view, however, there are 2 caveats when exercising such discretion. First, the parties’ respective cases could clearly be identified by reading their affirmations filed with no further elaboration. Secondly, there is no serious dispute as to discovery and inspection of documents or records between the spouse who is claiming and the third party who is defending or any other party, such as the other spouse. 61.For the present case, the Respondent’s joinder application was unsuccessful for all those reasons set out above within the precepts of the Civil Justice Reform. It should be noted that this Court did not make any finding nor was it required of making any finding as to the applicability of the TL v. ML procedure to the Respondent’s case against the Elder Sister of the Petitioner. Costs 62.Since the Respondent failed completely in his joinder application, it is fair and reasonable that the normal rule on costs should apply. It is noted that the Respondent had also served the joinder Summons on the Intervener’s solicitors. Orders 63.I now grant the following Orders :-
64.I also grant Certificate for Counsel.
Mr. Eugene Yim instructed by Messrs. Hastings, Solicitors for the Petitioner Mr. C.Y. Lam of Messrs. C.Y. Lam & Co., Solicitors for the Respondent Mr. Man of Messrs. Ho Tse Wai, Philip Li & Partners, Solicitors for the Intervener Miss C, the intended 2nd Intervener being absent | ||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 8759/2010