Ccmj v. Ssm Formerly Known As Skl

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Jurisdiction : Section 10(2)(e) of the
Guardianship of Minors Ordinance, Cap.13)

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Introduction

1.The Applicant is the Father.  The Respondent is the Mother. 

3.Following a bitterly fought trial which spanned for 7 days in respect of the Mother’s claim for various financial reliefs under the Guardianship of Minors Ordinance, Cap.13 (“GMO”) in respect of the child N born out of their relationship, this Court handed down its 78-page Judgment on 5 June 2015 (“the Financial Judgment”). 

3.At paragraph 180 of the Financial Judgment, this Court made, amongst other financial orders, the following Settlement Order (“Settlement Order”) :-

“180.  For all the reasons above, there will be financial provisions for

the child N, subject to the Legal Aid First Charge (if any), as

follows :-

(a) The property situated at One Silver Sea under the sole name of the Father be settled on trust for the use of N and her primary carer, the Mother, at nil consideration until N reaches the age of 18 or ceases full time education, whichever is the later, with the reversion to the Father (as per paragraph 72 above);

(b) ……………..

(c) ……………..

(d) ……………..

(e) ……………..

(f) ……………..

(g) ……………..

(h) ……………..

(i) ……………..

(j) ……………..”

4.At paragraph 72 of the Financial Judgment, this Court said :-

“72. Given careful consideration to the above analysis and findings and all the available options, also having taken in account the means  and resources of the Father, I would grant a settlement order under Section 10(2)(e) of the GMO in respect of the One Silver Sea property to cater for N’s use and occupation under the care of the Mother, with a reversion to the Father upon N’s reaches 18 of ceases full time education, whichever is the later. Since the Mother is granted the custody, care and control of N, she would have to live with N together until further Order.”

5.The Father sought leave to appeal the Financial Judgment from this Court and then the Court of Appeal (see HCMP No.2059 of 2015).  On 2 December 2015 (Reasons dated 7 December 2015), the Father’s application for leave to appeal was dismissed with costs, on indemnity basis, summarily assessed at HK$100,000 by the Appellate Court (“the Appeal Decision”).

6.At paragraph 12 of the Appeal Decision, Mr. Justice Lam VP had said :-

“12………..It appeared to us from the submissions of Miss Wong, Counsel for the Father, during the course of the hearing that he was trying his best not to provide accommodation to the Child in the One Silver Sea Property, despite the Settlement Order.  That attempt must  be nipped in the bud. It is the Judge’s clear finding on the evidence before him that the only option open for consideration by the court on  the Child’s accommodation needs was the One Silver Sea Property : see [54] of the Main Judgment.  It was upon that basis the he made the  Settlement Order. The Father is bound by the Judge’s finding. He must provide for the Child’s accommodation needs in the Property. It  is also the duty of his legal representatives to advise him that like it or not, he must act according to the Judge’s finding. Without expressing any view on the merits of the stamp duty ground, we indicated that to alleviate the financial burden on the Father arising from the stamp duty as a result of the Settlement Order, if genuine, an undertaking by him to allow the Child and the Mother to occupy and live at the One Silver Sea Property rent free until the Child reaches 18 would be an option worth    exploring. That, we note, was accepted by Ms Por, solicitor for the Mother, to be reasonable. We would leave it to the parties to see if anything can be made out of our indication.”

7.On 2 March 2016, the Mother took out a Summons and at paragraph 2 thereof seeking, inter alia, that the Father do deliver vacant possession of the One Silver Sea property to the Mother forthwith (“the Mother’s Application”).

8.The question which arose for consideration is whether this Court has jurisdiction to order delivery of vacant possession of property under the GMO.  Since such question being a legalistic one not involving any factual disputes, Counsel for the parties fairly agreed that it could be dealt with on paper with the Mother filing her written submissions first and then followed by the Father’s submissions.  The Mother had the right to file a further submission in reply.

The Father’s contention

9.Counsel Mr. Keith Hotten for the Father, in his written submissions, sets out the contention to the Mother’s Application under 4 separate headings :-

(a) Joint Efforts of the Parties to Settle the Property by Deed of Trust;

(b) The Request to deliver vacant possession is outside the Court’s jurisdiction;

(c) The Summons is Defective in Substance and in Procedures;

(d) The Application is not in the Child’s best interest; CA suggests Undertaking.

The Mother’s Reply

10.Counsel Mr. Kevin Li for the Mother, in his submissions in reply, referred to the Father having adopted tactics to attempt to create more barriers in order to avoid providing the Child with a shelter.  The Father was taking advantage of his own default and his position and his delaying tactics was seen by the Court of Appeal and reflected in the Appeal Decision (see paragraph 6 supra). 

11.Further, it was submitted that the Mother’s Summons is not an enforcement Summons as the Father so contended in his Counsel’s submissions.  The Mother’s Summons was to seek specification of a time for compliance with a view to apply for contempt and/or enforcement.

The time being sought for in the Mother’s Application is “forthwith” which is to mean as soon as it can reasonably be done (see Commentary 42/2/2 of the Hong Kong Civil Practice 2016 Vol 1). “Forthwith” has also been held to be a sufficient expression of time for doing an act directed by a Court Order (see Thomas v. Nokes (1868) L.R. 6 Eq.521, Halford v. Hardy (1900) 81 L.T. 721).  An order to do an act forthwith means that the act is to be done as soon as it can reasonably be done (see Hillingdon LBC v. Cutler [1968] 1 Q.B. 124; [1967] 2 All ER 361 CA; and Chou Yi Feng v. Chou Yi Chen and others, HCA No.4393/2001).

12.Reference was made to the case of IDC v. SSA [2014] 4 HKLRD 220 where it was held by the Court that the similarity on language used between Section 10(2)(e) of the GMO and Section 6(1)(b) of the Matrimonial Proceedings and Property Ordinance, Cap.192 does not call for a narrower interpretation be given to the meaning of “property” in the GMO from what had been laid down in the Interpretation and General Clauses Ordinance, Cap.1.  “Property” was defined under section 3 of Cap.1 to include money, goods, chose in action and land; and obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as defined in the Ordinance.    

13.The Father, as the sole legal and beneficial owner of the One Silver Sea property, having the right to exclusive possession and enjoyment of the property could have been able to settle all his rights and interests in the One Silver Sea property of which he had not done so, despite the Settlement Order.

The 4 Contentions of the Father

14.I will first deal with each of the Father’s contentions in sequence.

15.It is the Father’s case that joint efforts of him and the Mother are required to work out various essential terms of the Deed of Trust before any settlement could be arranged.  Further, any agreed terms would still have to be consented to or approved by the mortgagee bank of the One Silver Sea property.  However, despite the Father’s efforts made to the Mother’s legal representatives, all the proposals of the Father were either not responded to or rejected by the Mother.  

16.In my view, there is no legal requirement or rules for parties who intended or being ordered by the Court to enter into a deed of trust to have to agree upon terms of the trust before it could be settled.  Very rarely and only in exceptional circumstances, there may be reasons for better management or special arrangement of the trust which call for terms to have to be agreed and in place before the deed of trust could be settled. 

17.Mr. Hotten in his submissions have not referred me to any cases or authorities on this aspect or there exist any exceptional circumstances save and except that whatever terms agreed to by the parties would still have to be consented to by the mortgagee bank of the One Silver Sea property. 

18.For the present case, the Settlement Order requires that the One Silver Sea property which is legally and beneficially owned by the Father to be settled on trust for the use of the Child N and her primary carer, namely, the Mother with reversion to the Father. Unless with the consent of the Mother or directed by this Court, the Father could not “coerce/extract” for terms to be first agreed to by the Mother whilst putting his compliance with the Settlement Order in complete abeyance. 

19.In CWG v. MH and Others [2014] 4 HKLRD 141 where the Court of Appeal in its Judgment on a “Hadkinson” application taken out by the wife in the case against the mother of the husband in that case had said :-

“16.1Of course, the crucial issue is whether in the exercise of its discretion, the court should bar the Mother from participating in the appeals by reason of her non-compliance, but first, it is necessary to say a word about the ambit of the Hadkinson application.

16.2 A summons was taken out only in CACV 83/2013 (ie the Mother’s appeal) and not in the other appeals where she is a respondent. By way of explanation (or perhaps excuse), Ms Eu SC, leading counsel for the Wife, has referred us to some cases where the reports show that a Hadkinson point had been taken without a summons having been issued.  

16.3 For my part, I would have thought that bearing in mind the principles of the Civil Justice Reform, an application of such significance as a Hadkinson application should not be made without the other party being duly forewarned by way of summons, with enough time for affidavit evidence to be adduced for and against the making of the order.  That has not been done in relation to the appeals in which the Mother is a respondent.

16.4 However in the present case there is no suggestion that the Mother’s legal team has been misled or taken by surprise by the application being extended to the appeals in which she is a respondent. What has been pressed on us by Mr. Li by way of submission, which I accept, is the principle that a Hadkinson application “needs even more serious consideration where the party in respect of which it is submitted should not be heard is the respondent to the application” : M v. M [2011] 1 FLR 1773, 1779, para.26; or, in our case, a respondent to the appeals.

17. However, even after having given more serious consideration to the issue as a result of that feature, it is clear that in the exercise of the court’s discretion, the non-compliance in the present case was such that the Mother should be debarred from participating in the appeals.

18.1 First, I accept the reality of the additional feature in the present case that the Husband’s legal team remained available, as it were, to fight the Mother’s corner : c.f. X Ltd v. Morgan-Grampian Ltd [1991] 1 AC 1, 51. However that is only one factor to be taken into account.  A party cannot get away with non-compliance of the court’s orders simply by taking advantage of the fact that there is another party with allied interests. (my emphasis)

18.2 Importantly, there was no appeal from the Discovery Order and it has not been argued that the order was an unreasonable one. In those circumstances it cannot be said that there is any infringement of the maxim “audi alteram partem”: X Ltd v. Morgan-Grampian Ltd, p.50 or related constitutional rights.

18.3 Although the Order was made in August 2012, no attempt was made at compliance, even after a Hadkinson order was made by the judge in August 2013 and was confirmed by another division of this court four months ago.

18.4 It took yet another Hadkinson application in respect of these appeals before the Mother took any action, and even then the judge found what was provided was too little, too late.

18.5 In these circumstances, to permit the Mother to participate in the appeals would be tentamount to condoning a deliberate flouting of the court’s orders. (my emphasis)

20.Although there is no “Hadkinson” application or any such submission from the Mother, I am minded to say the Father’s continuous non compliance with the Settlement Order; in particular, after having failed in his appeal in the Court of Appeal with indemnity costs of HK$100,000 ordered against him, is serious and even contumacious. The Court would not condon any deliberate flouting of Court’s orders (see CWG v. MH and Others supra).  Apart from there being no basis to “coerce/extract” terms to be agreed to or undertakings to be given by the Mother, the Father could not get away with his non compliance by taking advantage of there exist the mortgagee bank’s interests.  Any hindrance to performance by the mortgagee bank, which I doubted there is or will be any, as to compliance of the Settlement Order should be resolved through proper application to the Court for directions rather than the Father withholding compliance of the Settlement Order. 

21.In my view, what the Father should have or could have done is to inform the mortgagee bank about the Settlement Order who then might or might not come back with their views of the Father (as mortgagor) having to settle the mortgaged property on trust.  It does not make any sense for the Father to first try and agree terms with the Mother and then to seek the mortgagee bank’s views or consent.  I cannot see any logic for the Father to elicit terms or undertakings from the Mother without first informing the mortgagee bank of the Settlement Order against him in respect of the mortgaged property (that is, One Silver Sea).  Given the fact that the Father had been legally represented continuously since the Settlement Order, it is highly unlikely that his lawyers would not have properly advised him of such situation.  It is more probable than not that the Father does not want to provide accommodation to the Child despite the Settlement Order as His Lordship had said in the Appeal Decision (see paragraph 6 above).

22.Thus, the Father’s contention (a) must fail.

23.It was also contended by the Father that the Mother and the Child do not have any arguable right to possession until the property has been settled on trust (paragraph 7 of Mr. Hotten’s submissions).

24.There is a fallacy in such contention.  The right to have possession and use the One Silver Sea property in the present case was conferred upon the Mother and the Child by the terms of the Settlement Order rather than the property in question being settled on trust so contended by the Father.  Given the fact that the Father is the sole legal and beneficial owner of the One Silver Sea property and this was the only option open for consideration at the time of trial (see paragraph 54 of the Financial Judgment), and further that the Court had founded upon evidence at trial that the Child’s accommodation needs (with the Mother as her primary carer) should be provided by the Father, the provision of  ‘settlement’ under Section 10(2)(e) of the GMO is proper and reasonable taking into account all the circumstances, including the means and resources of the Father.  This was indeed upheld by the Court of Appeal.

25.In my view, those matters raised in paragraph 8 of Mr. Hotten’s written submissions, such as “the need for there to be a ‘trust’”; “who is to be the trustee”, “position of the bank in respect of the mortgage”; “waste of large sums of money in stamp duty” so on and so forth are the Father’s self-serving reasons, if not excuses, for him not to comply with the Settlement Order.  In case there are any disputes arising subsequently after the Settlement Order was complied with, it could always be resolved through the Court in accordance with established principles of trust or further appropriate directions would be given.  The Father could not take the law in his own hands as he wishes.

26.In my decision, the Father’s contention (b) must fail.

27.Reference was then made by the Father to the Mother’s Summons being defective in substance and in procedure (that is, contention (c)). 

28.At paragraphs 9 to 13 of Mr. Hotten’s written submissions, it was said :-

“9.If Mother had a present right to possession, the proper enforcement method would be under O.45 r.3, which pertains to

the enforcement of judgment for possession of land. Leave of Court is required before a writ of possession to enforce a

judgment or order for the giving of any land will be issued; the Mother has made no such application for leave.

10. The Mother’s summons is based upon O.45, r.6, which only permits the Court to make an order requiring the act to be done within a certain time. Again, there was no order from the Court requiring Father to deliver possession of the property to the Mother prior to it being settled on trust, and she has no interest in the property or right to possession unless and until it is settled on trust.

11. The Mother’s summons is also defective in that she is not asking the Court to specify a time by which the property be delivered to her, rather she asks that Father deliver vacant possession forthwith. The Court can only specify a time for doing an act required by an order under r.6, nothing more. If Mother wants vacant possession of the Property, she would have to proceed under either O.45 r.3 or r.5 and, for completeness, would have to demonstrate they served Father with the appropriate notice under O.45 r.7(4) (which was not done here).

12. There is no jurisdiction to order the delivery of vacant possession of the Property forthwith under the Guardianship of Minors Ordinance, Cap.13 (“GMO”).  See, for example, section 10 of the GMO in respect of orders that the Court may make for custody and maintenance on application of either parent and in particular the need to have regard of the means of the parent.

13. To repeat, the Mother relies on Order 45, rule 6, the Rules of the District Court (“RHC”), Cap.336H for her request for delivery of vacant possession forthwith.  The request made is different from the action stipulated under the Order dated 5 June 2015 which, to repeat, required the Property “be settled on trust for the use of” the Child and the Mother until the Child reaches the age of 18 or ceases full time education, whichever is the later, with reversion to the Father.  Thus, the action required under the Settlement Order was the settlement of the Property on trust not the delivery of vacant possession.  The request of the Mother falls outside O.45, r.6.”

29.Under Part 6 of the GMO with heading of “Jurisdiction, Procedure and Appeals” at Section 23 which provides :

“23.Procedure in District Court

Except as otherwise expressly provided in this Ordinance, Part 4 of the District Court Ordinance (Cap.336) shall apply to every proceeding before, and every order by, the District Court under this Ordinance (my emphasis), and –

(a) the application may be heard and determined otherwise than in open court;

(b) where the District Court considers that the matter is one which could more conveniently be dealt with by the Court of First Instance, the District Court may refuse to make an order and in that case, without prejudice to the general right of appeal conferred by Part 4 of the District Court Ordinance (Cp.336), no appeal shall lie from the decision of the District Court;

(c) an order for the payment of money shall be enforceable in like manner as an order for the payment of a civil debt.”

30.Under Part 4 of the District Court Ordinance, Cap.336 (“DCO”) with heading of “Civil Jurisdiction and Procedure” at Section 48 which provides –

“48. General ancillary jurisdiction

(1) The Court has the same power as the Court of First Instance in any proceedings before it –

(a) To grant the relief, redress, or remedy or combination of remedies, either absolute or conditional; and

(b) Subject to section 46, to give effect to every ground of defence or counterclaim, equitable or legal,

which ought to be given.

(2) The Court has to administer law and equity so that, if there is a conflict or variance between the rules of equity and the rules of the common law referring to the same matter, the rules of equity prevail.

(3) The Court has to give the same effect as in the past –

(a) To equitable estates, titles, rights, relieves, defences and counterclaims, and to equitable duties and liabilities; and

(b) Subject to paragraph (a), to legal claims and demands and estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom or created by an Ordinance.

(4) The Court has to exercise its jurisdiction to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and multiplicity of legal proceedings on any of those matters is avoided (my emphasis).

(5) The Court may stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.”

31.The Father’s contention that this Court has no jurisdiction under the GMO to order delivery of vacant possession must be considered in the context of the legislation.

32.First of all, the Settlement Order granted under Section 10(2)(e) of the GMO requires the Father to settle the One Silver Sea property on trust for the use (my emphasis) of the Child and the Mother until the Child reaches 18 or the so-called “maximum term” upon cessation of full time education, whichever is later.  It is only possible to have the use of property when such property is actually delivered or possession given to the user, that is, the Child.  Given the fact that the Child is only at the age of 8 and being taken care of by the Mother as her primary carer, possession would have to be given to the Mother on the Child’s behalf who would also be living with the Child.  The terms of the Settlement Order are clear enough that possession should be given by the Father in order that the Child could use it.  It is not a case where the Father was ordered to simply settle the One Silver Sea property on trust for the benefit of the Child which might still arguably be that the Child be given the proceeds of rent if there is rental income.  The term “use of the property” requires no elaboration.

33.With respect, Mr. Hotten’s submissions (see paragraph 28 above) merely referred to matters of procedure under the relevant Rules of the District Court for enforcement of those day to day judgment for recovery of possession cases between landlord and tenant.  It is not the case here and indeed not the terms of the Settlement Order.  There is a reversionary interest with the Father.

34.Again with respect, the contention as to the Mother’s Summons being defective in substance and procedure completely missed the point.  In my view, the matters so raised as contention in Mr. Hotten’s submissions (see paragraph 28 above) are merely stating the obvious and undisputable rules of procedure for enforcement in those landlord and tenant possession cases.

35.With my finding that the right to have possession was conferred by the terms of the Settlement Order rather than upon the trust being settled so contended by the Father (see paragraph 24 above), the next question is how and when the Child could enjoy the fruits of litigation, that is, the use of the One Silver Sea property ?

36.Paragraph 2 of the Mother’s Summons which is now being challenged by the Father is that this Court has no jurisdiction under the GMO; first, to order the Father to deliver vacant possession of the One Silver Sea property; and secondly, forthwith.  The Father contended that a specified period of time must also be stated rather than merely stating “forthwith”.  The Mother would also have to follow certain procedures if she wants to have vacant possession.

37.In my view, the Father’s contention as to jurisdiction must fail for the following reasons.

38.Part 4 of the DCO applies to proceedings before and every order made by the Court under the GMO (see section 23 of the GMO).  The Court was statutory bound to exercise its jurisdiction in a way to secure as far as possible all disputes are completely and finally determined and to avoid multiplicity of proceedings (see section 48(4) of Part 4 of the DCO).  This is also within the spirit and objectives of the Civil Justice Reform (“CJR”) (see Order 1A, r.1 of the Hong Kong Civil Practice).

39.In my decision, section 48(4) of the DCO (under the heading of “General Ancillary Jurisdiction”) provides the Family Court (as part of the District Court) with the requisite jurisdiction to grant orders, remedies or reliefs which could otherwise be obtained in civil proceedings in the District Court.  The legislative intent under section 48(4) is clear.  It is to avoid multiplicity of proceedings so much so that every order granted under the GMO could, as far as possible, be implemented without having to commence further or multiple proceedings.  On such interpretation that I find this Court, in granting the Settlement Order under section 10(2)(e) of the GMO in respect of the One Silver Sea property for the use (my emphasis) of the Child, by virtue of section 48(4) of the DCO was embraced with the jurisdiction to order delivery of vacant possession against the Father.  In any event, no submission was made by Counsel Mr. Hotten as to the provisions of section 48(4) of the DCO being inapplicable. 

40.Accordingly, I find there is jurisdiction to order delivery of possession of property to the beneficiary of the settlement upon an Order being granted under section 10(2)(e) of the GMO. The Father’s contention as to jurisdiction fails.

41.I noted that the Settlement Order does not specify a time for the Father to settle the One Silver Sea property.  Having waited for about 9 months after the Settlement Order or about 3 months after the Court of Appeal had dismissed the Father’s leave to appeal application, the Mother sought the Court’s assistance to order the Father to deliver vacant possession to her forthwith.  I also noted that there is no application for stay of execution of the Settlement Order taken out by the Father though I doubted there are legitimate reasons for such application to be made.

42.For the fact that the Settlement Order had not specified the time for the settlement to be made, it is perfectly sound and proper for the Mother to request a time be fixed after having waited for 9 months or at least 3 months.  Instead of stating a period of time in paragraph 2 of the Mother’s Summons, say for instance, a number of weeks or months, for the One Silver Sea property to be settled on trust but to seek an outright delivery of vacant possession forthwith by the Father, I find it proper to do so given the observation in the Appeal Decision (see paragraph 6 above) that the Father was trying his best not to provide accommodation for the Child had seen to be materialised with the passage of time.  I also accept Counsel Mr. Li’s submissions as to the term “forthwith” sufficiently spell out the time frame to be “as soon as it can reasonably be done” without having to state the exact number of days or weeks.  A lapse of, say, around 3 months after the Father’s application for leave to appeal was dismissed is, in my view, sufficient enough for compliance of the Settlement Order.

43.Thus, I find the Father’s contention as to the Mother stating the time of “forthwith” fails.

44.Moreover, as the docket judge of this case since commencement of these proceedings in 2010, 14 Judgments had been handed down by this Court, with 4 Decisions by the Court of Appeal, and with this Decision to be the 15^th Judgment, not to mention another forthcoming leave to appeal application lodged by the Father now scheduled for hearing on 25 April 2017 at 2:30 p.m., it is more likely than not that whatever period of time specified by the Mother for delivery of possession would be futile.  In my view, any further delay in settlement of the One Silver Sea property or the delivery of vacant possession severely prejudice the Child’s interests to receive the fruits of litigation.  Such flagrant breach and contumacious conduct would not be accepted or tolerated by the Court.    

45.At paragraph 36 of this Court’s Judgment dated 3 November 2016 where the following comments had been made :-

“36. Given the contumacious attitude and litigation conduct of the Applicant, I am satisfied that if leave to appeal is granted, whether it is out of time or within time, the Respondent and the child in question would be seriously prejudiced by the Applicant’s conduct of litigation which no Court would encourage or tolerate. If such litigation conduct is to be accepted, I firmly believe it is in contravention to the spirit of the Civil Justice Reform (CJR) regime.”

46.For these reasons, I find the Father’s contention (c) fails.

47.In the Father’s contention (d), he referred to the Court of Appeal’s indication of the option of undertakings as opposed to settlement in order to avoid the stamp duty issue arising from the settlement regime.  Such option had been agreed to by the Mother’s legal representative at the Court of Appeal hearing.

48.Counsel Mr. Hotten submitted that to settle the One Silver Sea property on trust would be chargeable with stamp duty as an “agreement for sale” and/or as a “conveyance on sale”.  The total amount of stamp duty payable was estimated to be around HK$975,000 thus making the Settlement Order disproportionate, costly and unreasonable as regards to the means of the Father.  Such sizeable sum would be better spent on the child N rather than “lost’ to the Government.

49.Mr. Hotten referred to the case of Re P [2003] 2 FLR 865 (with approval in IDC v. SSA [2014] 4 HKLRD 220) which suggested that the Father must have some right to veto an unsuitable investment.

50.In my view, the stamp duty factor should only be an issue worth exploring out of court (my emphasis) rather than using it as an excuse for not complying with the Settlement Order.  Once it becomes apparent that the stamp duty could not be resolved through out of court (my emphasis) negotiation, the only option for the Father is to go back to the arena and proceed with the Settlement Order and not to defer or delay it as long as he wishes.  The Father had appealed but lost.  It can be seen from paragraphs 5, 8 to 11 of the Appeal Decision that the Father’s then Counsel Miss Athena Wong had surreptitiously included the stamp duty issue in the Notice of Appeal which was thrown out by the Court of Appeal outright.  Reason being that such issue had not been brought forward at all at the trial proper before this Court.  There is no room for the Father now to put up such stamp duty issue again as an explanation for his non compliance with the Settlement Order.

51.With respect, it is wrong for Mr. Hotten to say the Father must have some right to veto an unsuitable investment for 2 reasons.  First, the Settlement Order could hardly be compared or in any way compatible with an investment as in the case of IDC v. SSA (supra).  Secondly, there had never been any issue of investment under the terms of the Settlement Order.

52.I find the Father’s contention (d) completely fails.

Conclusion

53.For all the above reasons, I find in favour of the Mother and grant an Order in terms of paragraph 2 of her Summons dated 2 March 2016 with minor amendments.

54.To provide the Father with some leeway, I am prepared to extend the time for delivery of vacant possession from “forthwith” to “28 days from the date of this Decision”; that is to say, up to and including 10 April 2017.

55.To ensure compliance by the Father for better protection of the Child’s best interests, I will endorse a penal notice on this Order with directions that such Order be personally served on the Father and also his present legal representatives.

Costs

56.Given careful consideration, I decided that it is fair and reasonable to apply the normal rule on costs to follow the event.  That is to say, the Applicant shall pay the costs of paragraph 2 of the Mother’s Summons dated 2 March 2016 including all costs reserved (if any), to be taxed if not agreed.  The Respondent’s own costs be taxed in accordance with Legal Aid Regulations.

57.I also grant Certificate for Counsel.

Orders

58.I now grant the following Orders :-

(a)  The Applicant (Father) do deliver vacant possession of the One Silver Sea property to the Respondent (Mother) for the use of the Child on or before 10 April 2017 in compliance with paragraph 180 (a) of the Judgment dated 5 June 2015;

(b)Penal Notice be endorsed on this Order;

(c)  Service of this Order be effected on the Applicant (Father) personally and his present legal representatives;

(d)The Applicant (Father) do pay the costs of and occasioned by paragraph 2 of the Respondent’s (Mother’s) Summons dated 2 March 2016, including all costs reserved (if any), to be taxed if not agreed; and

(e)  The Respondent’s (Mother’s) own costs be taxed in accordance with Legal Aid Regulations.

59.I also grant Certificate for Counsel.

Mr. Keith Hotten instructed by Messrs. Payne Clermont, former Solicitors for the Applicant

Mr. Kevin Li instructed by Messrs. Stevenson, Wong & Co, Solicitors for the Respondent assigned by the Director of Legal Aid