Read the full judgment text of HCMP 235/2016 on BabelCite. This High Court CFI judgment was delivered on 31 October 2016 before Hon Lam VP, Barma JA.
Family law – ancillary relief – leave to appeal – District Court Ordinance Cap 336 s 63A(2) – preliminary issue – adverse inference – financial resource – credibility – costs – Leave to appeal refused; summons dismissed with costs fixed at $90,250.00. This case concerns a renewed application by the Respondent husband for leave to appeal against the judgment of Judge Melloy on ancillary relief in FCMC 3321 of 2010. The judgment was handed down on 12 June 2015 following a substantive trial in February and March 2015. Prior to this, a trial of preliminary issues culminated in a judgment of 6 November 2012 regarding whether a family company, AFCL, was a financial resource available to the husband. The Respondent husband did not appeal the 2012 judgment but sought leave to appeal the 2015 ancillary relief judgment. The intended grounds of appeal included errors in the 2012 judgment, erroneous construction of the doctrine of adverse inference, unfair treatment, and the Petitioner wife's credibility. The Court of Appeal, comprising Hon Lam VP and Barma JA, considered the application under s 63A(2) of the District Court Ordinance Cap 336. The Court held that it is not permissible for the Respondent to re-visit conclusions reached in the 2012 judgment given the failure to appeal against that judgment in time. The Court found no error of law or principles in the drawing of adverse inference regarding certain loans in the 2015 judgment. Regarding the ownership of AFCL, the Court found the Judge was entitled to come to her conclusion after assessing evidence, with no palpable error. There was no basis to suggest unfair treatment as the Respondent had full opportunity to adduce evidence. The assessment of credibility is primarily the task of the Judge. The Court concluded the intended appeal has no reasonable prospect of success. Leave to appeal was refused and the summons of 29 January 2016 was dismissed with costs fixed at $90,250.00. The Court cited China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015. Application for leave to appeal was refused by the Judge on 27 January 2016. The Respondent explained he suffered mental illness and was hospitalised for 3 months in 2013 but was later found fit to represent himself. The Court noted that allowing the Respondent to wait for the ancillary relief result before appealing the 2012 judgment would go against the purpose of having a trial of the preliminary issue.
Legal issues: Leave to appeal
Outcome: Leave to appeal refused; summons dismissed with costs.
Cites 1 case