Cwg v. Mh and Others
Read the full judgment text of HCMP 643/2012 on BabelCite. This High Court CFI judgment was delivered on 12 September 2013.
1. On 2 August 2013, I handed down a judgment and ordered that the husband’s mother R2, was not to be heard on the husband’s application for stay of execution. R2 now seeks leave to appeal against this judgment (“ Judgment ”).
Cites 4 cases
|
HCMP 643/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 643 OF 2012 ---------------------------
---------------------------
------------------ R U L I N G ------------------ Introduction 1.On 2 August 2013, I handed down a judgment and ordered that the husband’s mother R2, was not to be heard on the husband’s application for stay of execution. R2 now seeks leave to appeal against this judgment (“Judgment”). Brief Background 2.The brief background to this was that on 26 March 2013, I handed down my judgment in the wife’s application for financial relief under Part IIA of the Matrimonial Proceedings and Property Ordinance (“Main Judgment”), after a 45 day trial, and subject to the husband’s various undertakings in relation to the children, and among other things, I ordered the husband to pay to the wife:
3.Both the husband and R2 lodged notices of appeal on 23 April 2013 against the Main Judgment and the Order. 4.The deadline for the payments in (ii) and (iii) above expired on about 26 June 2013. 5.On 16 June 2013, the husband issued an application for stay pending appeal (“Stay Application”), but only in respect of the payment of the arrears of the MPS Order/Interim Order, and the payment of the lump sum[1]. He said he was willing and he undertook to continue with his various undertakings and to comply with the periodical payments for the children of HK$100,000 per month. 6.During the first hearing fixed for the Stay Application, the wife objected to both the husband and R2 being heard. So far as the husband was concerned, the wife sought a Hadkinson Order in that he had not complied with the MPS Order and also the part of the Order relating to the periodical payments for the children. A Hadkinson Order was subsequently made against the husband and Reasons were given by this court on 10 July 2013. The husband had since duly paid up the amounts. 7.As for R2, the wife objected to her being heard on two grounds, firstly on the ground that R2 had no right to be heard as those parts of the Order which the husband was seeking a stay were not made against R2, and secondly, even if she had a right, she should not be heard until she had complied in full with paragraphs 1 and 2 of the discovery order made by Poon J on 10 August 2012 (“Discovery Order”). 8.As a result, this court handed down the Judgment and held that R2 was not an “interested party” in the Stay Application or alternatively, on the basis that R2 had not complied with the Discovery Order. The Grounds of Appeal 9.There are 8 grounds of appeal set out in R2’s draft Notice of Appeal (“Draft Notice”). Grounds 1 to 3 : whether R2 is an ‘interested party’ 10.R2’s case is that this court is wrong to hold that R2 is not an “interested party” in the Stay Application for the following reasons:
11.Mr Li, R2’s Senior Counsel, had relied on those principles in relation to joinder of parties under O15 r6 and two cases, Man Ping Nam [2003] 1 HKC 549 and Gurtner v Circuit [1968] 2 QB 587. 12.This court had considered O15 r6 and Man Ping Nam in the Judgment[2]. Even though R2 was a party in the Part IIA application, this court held the view that this did not necessarily mean that she would be an interested party entitled to be heard in the Stay Application. 13.I indicated in the Judgment that there was nothing to stop R2 to file an affirmation in support of the husband’s application which she chose not to do. Further, there was no objection by the wife to the husband referring to or relying on the affirmation filed by Ms Lo, on R2’s behalf, in support of the Stay Application. 14.The Gurtner case concerned a road traffic accident where the defendants’ insurers could not be traced. The Motor Insurers’ Bureau applied to be added as defendants to the plaintiff’s action as they might be liable under the terms of their agreement with the Minister of Transport to satisfy any damages awarded to the plaintiff. It was held that, where the determination of an action between two parties would directly affect a third person’s legal rights or his pecuniary interest, the courts had a discretion, under the then RSC Order 15 r6 (2), to order the third person to be added as a party to the action on such terms as the court considered desirable so that all matters in dispute could be “effectually and completely determined and adjudicated upon” and, as the Bureau had an obligation to the Minister of Transport to satisfy all unpaid damages awarded to a plaintiff in an action against an insured motorist, which obligation the Minister could enforce by an action for specific performance, the Bureau had a legal and pecuniary interest in ensuring that all proper defences were raised in the plaintiff’s action. Accordingly, justice required that the Bureau to be added as defendants to the plaintiff’s action and the court would exercise its discretion, under RSC Order 15 r6 (2) and add the Bureau as defendants to the action on their undertaking to pay all damages awarded to the plaintiff. 15.The Gurtner case is distinguishable from the present case, as under the agreement with the Minister of Transport, the Motor Insurers Bureau had to satisfy any damages that might be awarded to the plaintiff pedestrian in that case, and there was no question that the Bureau would have to “foot the bill”. In the present case, R2 had no such agreement with the wife or the husband. In fact, even in the Gurtner case, the Bureau was only allowed to be added as defendants on their undertaking to pay all damages awarded to the plaintiff. There is clearly no such undertaking coming from R2, nor had R2 had any agreement with the wife or the husband to “foot the bill” as the Bureau in the Gurtner case. 16.The court has a discretion under Order 15 rule 6 and each case will depend on its own facts. 17.As Le Pichon JA (as she then was) held in SMSE and KL, CACV 111 of 2009, under s14 AA (4) of the High Court Ordinance, that under the new rules, there is no longer any automatic right of appeal to the Court of Appeal in interlocutory matters. Leave to appeal under O59 r2B would not be lightly granted and that under the test in s 14AA (4), reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probably”[3]. 18.Ms Eu has further referred this court to a judgment involving both R2 and R3 in another High Court Action , namely Ho Yuen Ki Winnie and Moon Valley Foundation Limited and Ho Hung Sun Stanley and Sociedade de Turismo E Diversoes De Macau S.A., HCA 391 of 2006, judgment dated 25 May 2009, where it was said by A Cheung J (as he then was) that even if the court takes the view that there is a reasonable prospect of success, it still retains a discretion as to whether to grant leave, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. 19.The main thrust of Mr Li’s arguments is that as R2’s assets can become subject to prospective enforcement actions, and thus her interest would definitely be “affected” and she is an interested party and she should be heard in the Stay Application. In the Main Judgment, this court found that the husband had held beneficial interests in various companies, cars, Valuable Timepieces, Ms Lo’s Trust Accounts, but the most valuable of such of his interests would be held through the 3 Offshore Companies. Among the rest, apart from the “Surplus” in the Timepieces, the husband’s other beneficial interests came to only about HK$2.036m out of a total of about HK$300m. In the husband’s Notice of Appeal, it was the husband’s case that he had never received the “Surplus”, or it simply did not exist. Throughout these proceedings, the evidence showed that so far the wife had only attempted to seek enforcement by issuing judgment summonses against the husband. 20.It is clear that by far, the majority of the value of the husband’s beneficial interests was found to be in the 3 Offshore Companies of at least HK$260m. However, as pointed out by this court, the husband had produced legal opinions from both BVI and the Bahamas to state that any judgment which one seeks to enforce in those jurisdictions has to be “final and conclusive”. Neither R2 nor the wife had produced any legal opinion to the contrary, and thus at this stage, pending the final determination of the appeals, the Main Judgment would not be enforceable in those jurisdictions, and R2’s interest in the 3 Offshore Companies should therefore not be affected. 21.Mr Li had tried to argue that as the wife might take steps to enforce against the husband’s other beneficial interests as held by this court, if a stay were not to be granted, and that in such a case the husband might then in turn try to take steps which may affect R2’s beneficial interest in the 3 Offshore Companies. The husband would, however, be bound by his own legal opinions and any possible enforcement by the husband against R2 had been dealt with in paragraphs 21 and 22 of the Judgment. 22.Further, if Mr. Li’s arguments are accepted, then it seems the 3 Offshore Companies and other companies in which the husband was held to have interest in the Main Judgment can all join in the Stay Application and be heard as no doubt it can then be said that the assets of those companies would be affected. 23.Having considered Grounds 1 to 3, I am not satisfied that the appeal has a reasonable prospect of success on these grounds. 24.Mr Li has also submitted that the Judgment may affect other family cases where third parties are involved, as there may be other occasions where third parties have been joined and where enforcement may affect that party’s interest, and there is an important legal issue as whether such third party’s interest may be affected not only when enforcement exists but also when enforcement is being lodged. Therefore, there are reasons in the interest of justice why the appeal should be heard. 25.First of all, no enforcement proceedings against the 3 Offshore Companies, or any other companies are in existence or have been lodged, and as indicated above, the only enforcement step taken by the wife was the issue of a new Judgment Summons for arrears under the MPS/Interim Order. In any event, in my view, whether the third party’s interests may be affected to the extent that entitles the third party to be heard on a stay application will depend on the facts of each case. I am not satisfied that in this case there is some other reason in the interests of justice why the appeal should be heard. Grounds 4 to 6: the Hadkinson Order 26.In view of my conclusions on the Grounds 1 to 3, I do not need to deal with the other grounds in R2’s Draft Notice. I would just briefly add the following on Grounds 4 to 6. 27.Mr Li’s main submissions on these grounds are merely repeating his previous arguments, namely that as R2’s affirmations were “excluded” from the trial, the court was not entitled to consider the “deficiencies” in them or to consider them at all. 28.I repeat that my ruling at the commencement of the trial was that R2’s affirmations were not to be admitted as her evidence if she failed to attend the trial for cross examination. It was R2 who chose not to attend the trial at all, not even by video conference, and as a result, her affirmations, in particular her 3rd affirmation in which she purported to provide information to comply with the Discovery Order, were not admitted as part of her evidence. Thereafter, R2 had to rely on evidence from her other witnesses, such as Mr Seeger and Ms Lo, whom Ms Eu had described as R2’s “ventriloquists”. 29.Mr Li had argued that the wife had “waived” any non compliance of the Discovery Order by R2 by successfully excluding all R2’s affirmations during the trial. I concluded in the Judgment that there was no such waiver. Further, as submitted by Ms Eu, even had there been waiver, this would not have bound the court which would always be able to consider the Hadkinson principles in the due administration of justice. 30.Mr Li accepted that there were “deficiencies” in Mr Seeger’s affidavits and said that this did not mean that there had been a flagrant breach of the Discovery Order by R2, and that the Hadkinson Order was made disproportionately to bar R2’s right to be heard. As Ms Eu has submitted, it is still open to R2 to try and comply with the Discovery Order, but so far she has not made any effort to do so. The fact remains that the Discovery Order has not been complied with as set out in the Main Judgment. 31.Having considered Grounds 4 to 8, I am not satisfied that on these grounds that the appeal has a reasonable prospect of success, nor is there any other reason in the interest of justice why the appeal should be heard. Conclusion 32.I accordingly refuse to grant leave and dismiss R2’s summons 16 August 2013. Costs to the wife in any event, with certificate for two Counsel.
Ms Audrey Eu SC & Mr Eric Leung, instructed by C T Chan & Co, for the applicant Mr David Pilbrow SC & Mr. Jonathan Ah-weng, instructed by Tso Au Yim & Yeung, for the R1 Mr Li Chau Yuen SC & Mr Adrian But, instructed by B C Chow & Co, for the R2 | |||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMP 643/2012