Mei Yu Lau v. Shiu Ki Lau

CACV000197/1995

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Coram: Bokhary, Godfrey & Liu JJA in Court

Date of Hearing: 31 January, 1996

Date of Judgment: 31 January, 1996

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JUDGMENT

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Bokhary JA:

1. The parties to this appeal were married in Taiwan in 1976. In 1991, the wife commenced divorce proceedings in the state of New Jersey in the United States of America. At that time, she was temporarily residing in Washington state, having resided in New Jersey, the New Jersey court noted, from August 1988 to February 1991. The husband, the New Jersey court noted, resided in New Jersey at the time when the divorce proceedings were commenced. In due course, he filed what the New Jersey court described as an "Answer and Counterclaim for Divorce". But he then sought to persuade the New Jersey court to decline jurisdiction on the ground of forum non conveniens. The New Jersey court refused to decline jurisdiction.

2. On November 30, 1994, the New Jersey court gave final judgment in the divorce proceedings. It dissolved the parties' marriage; awarded the wife sole custody of the child of that marriage; and ordered that the husband pay the wife a total of US$4,168,771.15. That sum is made up of: US$3, 927,000.00 representing her share of the matrimonial assets; US$55,271.15 by way of accrued arrears of awards made pendente lite; and US$168,500.00 costs.

3. The scene now shifts to Hong Kong.

4. Early last year, the New Jersey judgment for US$4,168,771.15 being wholly unsatisfied and the husband being in Hong Kong, the wife commenced proceedings here against: him as the 1st defendant; a company of which he is said to be the alter ego as the 2nd defendant; his mother as the 3rd defendant; and his sister as the 4th defendant.

5. As against the husband, the wife sued upon the New Jersey judgment claiming US$4,168,771.15 and Mareva relief. As against the other defendants, she claimed only Mareva relief.

6. I say nothing about the claims against the other defendants. Certainly, I am not to be taken as in any way acknowledging their viability.

7. What this Court is concerned with in this appeal is summary judgment against the husband for the US$4,168,771.15 due under the New Jersey judgment.

8. The wife applied for such summary judgment. She failed before a Master. But on September 11, 1995, she succeeded on appeal to a Judge in Chambers (Findlay J) who reversed the Master and gave her such summary judgment.

9. What we have before us now is the husband's appeal against the judge's Order giving the wife summary judgment against him for that sum of US$4,168,771.15.

10. There was in the New Jersey proceedings, argues Mr Clough for the husband, a procedural defect which constitutes a departure from the Hong Kong courts' view of substantial justice. That defect, the argument runs, takes the form of an absence of any judicial determination at all by the New Jersey judge. And that is argued on the basis of the contention that the New Jersey judge could only have reached the result which he did reach by not thinking for himself at all and instead blindly accepting the submissions made to him by counsel for the wife.

11. The law is clear. If the New Jersey judge thought for himself, the mere fact that he accepted flawed submissions would not form any basis for our going behind his judgment. The only remedy for the husband would have been to appeal to the appropriate appellate court in New Jersey, which is a course he has chosen not to follow.

12. Mr Clough sought to illustrate his point that the New Jersey judge must have blindly, as it were, swallowed the wife's counsel's submissions hook, line and sinker by reference to a number of matters which he put under these heads: (1) calculation of US$4 million; (2) triple accounting; (3) ownership of property and (4) calculation of costs.

13. As I see it, there is no need to recite the details of any of those matters. We have considered them carefully.

14. In my view, all they show is that the New Jersey judge may have got it wrong in such a way that an appeal in New Jersey may have met with some success. But I am satisfied that there is no basis whatsoever for fearing that the New Jersey judge did not think for himself. I see no basis for a reasonable argument that he failed to make a judicial determination.

15. There is another basis on which the husband seeks to avoid summary judgment. Mr Clough argues that there is "some other reason for trial". Here, he argues that since the case seems headed for trial as against the other defendants, there is for that reason "some other reason for trial" of the case against the husband. For my part, I cannot see that at all. Against the husband, the claim for summary judgment turns on the question whether there should be a Hong Kong judgment on the New Jersey judgment. The case against the others is directed to making, so it is hoped, the Hong Kong judgment one on which real money can be recovered. The two things are wholly separate. And I do not see that the second forms "some other reason for trial" of the first.

16. I would dismiss this appeal.

Godfrey, J.A.:

17. The principles we must apply in disposing of this appeal are not in dispute.

18. A judgment of a foreign court having jurisdiction over the parties and subject matter, i.e., having jurisdiction to summon the defendants before it and to decide such matters as it has decided, cannot be impeached in this country on its merits : see Godard v. Gray (1870) LR 6 QB 139. If the judgment is pronounced by a foreign court over persons within its jurisdiction and in a matter with which it is competent to deal, English courts never investigate the propriety of the proceedings in the foreign court unless they offend against English views of substantial justice: see Pemberton v. Hughes [1899] 1 Ch. 781 (especially per Lindley MR at p.790).

19. However, where the method by which the judge in the foreign court came to his decision as to the amount of his judgment is "by itself contrary to the requirements of substantial justice contained in our law", then this court will refuse to enforce the foreign judgment: see Adams v. Cape Industries Plc [1990] 1 Ch 433 at p.568D.

20. In the present case, Mr. Clough for the appellant has succeeded in demonstrating that there were, or may have been, a number of errors made by the judge in the foreign court which would justify an appeal to vary or alter the amount which the judge awarded the respondent. But these matters of appeal are a far cry from being matters which justify the allegation, which Mr. Clough very properly accepts he has to make, that the appellant has been the victim of substantial injustice, because the method by which the judge arrived at the amount he awarded was "by itself contrary to the requirements of substantial justice contained in our law". Mr. Clough has sought to attack the propriety of the method by which the judge came to his conclusion; but, as I have stated, that is just the sort of matter into which we cannot go unless we are satisfied that the appellant has suffered a substantial miscarriage of justice. I am not so satisfied.

21. For these reasons, I agree that this appeal must be dismissed.

Liu JA:

22. The appellant seeks to demonstrate that the judgment offends substantial justice as envisaged in Adams v. Cape Industries Plc, [1990] 1 Ch. 433, but counsel has not even referred us to the evidence which must be also looked at, in my view, in conjunction with the material to which our attention has been drawn. For the reasons given both by Mr Justice Bokhary and Mr Justice Godfrey, I agree that this appeal should be dismissed.

Representation:

Mr N Clough (instructed by W K To & Co) for the appellant husband

Mr John Bleach QC (instructed by M/s Haldanes) for the respondent wife