Fky v. Hcyp and Another
Read the full judgment text of FCMC 1480/2011 on BabelCite. This Family Court judgment was delivered on 13 April 2017 before HH Judge C.K. Chan.
Matrimonial Proceedings and Property Ordinance – s.17 avoidance of disposition – intention to defeat financial provision – presumption of intention – property transfer to mother – charging order enforcement – costs – Whether transfer defeats claim – Yes. Whether intention to defeat – Yes, presumption applies within 3 years. Assignment set aside. Costs $60,000.
Legal issues: Consequence of transfer · Intention to defeat
Outcome: Application granted. Assignment set aside. Costs awarded.
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FCMC 1480/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 1480 OF 2011 ------------------------
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----------------------- J U D G M E N T ------------------------ 1.This is an application by the Petitioner (“the wife”) against the 1st Respondent (“the husband”) and the 2nd Respondent (“the husband’s mother”) under s.17 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) for an avoidance of disposition order (“the s.17 application”). Brief History 2.The parties were married in 2006. 3.They had no children from the marriage. 4.The parties separated in about June 2009. 5.On 1 February 2011, the wife issued a petition for divorce based on 1-year separation with consent. A decree nisi of divorce was granted on 6 May 2011, which was later turned into a decree absolute on 27 June 2011. 6.For the issue of ancillary relief, the parties reached an agreement and the court made the following orders by consent on 6 May 2011:
7.It is the wife’s case that the husband has complied with the order on transfer of shares but not the payment of the lump sum of $1,000,000 when such payment was due on 27 June 2016. When the wife tried to enforce the said lump sum order by way of charging order on a property situated at Flat C on 12th Floor Ching Tak Building 260-264 Des Voeux Road West Hong Kong (“the Property”) which was previously owned by the husband and the husband’s mother jointly, it was found that the husband has already on 8 July 2015 transferred all his title and interest in the Property to the husband’s mother. The wife views this as a disposition to defeat the lump sum order, she therefore issued the present summons asking for an avoidance of disposition order under s.17 of the MPPO. 8.On 15 February 2017, this court granted an order joining the husband’s mother as the 2nd Respondent with further directions on service and that the two respondents to file and serve their affirmations in opposition, if any, within 14 days. 9.On 31 March 2017, solicitors for the wife filed an affirmation proving proper service being effected on the husband and the husband’s mother. As they have not filed any affirmation in opposition and failed to appear at today’s trial, I have decided to proceed with the trial in their absence. The Law 10.The wife is now relying on s.17(1)(c) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) in her setting aside application:
11.From the said provisions, the court shall have power to set aside a disposition if it is satisfied that the other party has made such a disposition with the intention to defeat a financial order obtained by the applicant. If the disposition was made within 3 years prior to the application and has had the consequence of defeating the applicant’s claim for financial provision, there is a rebuttable presumption that the disposition has such an intention to defeat the applicant’s claim. Discussion 12.It is clear from the facts of this case that the wife has obtained a financial order against the husband for the sum of $1,000,000. The husband has breached the said order by failing to pay the said sum on 27 June 2016. 13.From the land search record, the husband and the husband’s mother purchased the Property on 31 October 2001 as joint tenants at a consideration of $580,000. They held the Property in the same capacity until 8 July 2015, when the husband transferred all his title and interest therein to the husband’s mother at a consideration of $3,000,000. 14.In deciding this application, the court has to consider 2 issues:
15.The most effective way to enforce the lump sum order is to apply for a charging order on the beneficial interest of the husband in the Property. By transferring all his title and interest in the Property to the husband’s mother, it must have the consequence of defeating the wife’s claim for financial provision. The answer to sub-paragraph (1) in §14 above must be in the affirmative. 16.This application for an avoidance of disposition order was made on 24 June 2016. The transfer was made on 8 July 2015 and was therefore within a period of 3 years prior to the application. The presumption under s.17 (3) of MPPO applies. There is no evidence from the husband or the husband’s mother to rebut the said presumption. Therefore, I am satisfied that the husband had the intention to defeat the wife’s claim for financial provision when he transferred all his title and interest in the Property to the husband’s mother. 17.Under these circumstances, s.17 (1)(c) of MPPO applies and I make an order that the Assignment dated 8 July 2015 between the husband and the husband’s mother as vendors on the one part and the husband’s mother as purchaser on the other part registered in the Land Registry with memorial number 15072900140554 concerning the Property to be set aside. Costs 18.Costs to follow event. The wife succeeded in this application and shall have costs including all costs reserved. Upon reading the wife’s Statement of Costs for Summary Assessment, I summarily assess the costs payable by the 1st and 2nd Respondents at $60,000.
Representation: Mr. Ching of Messrs. Hui & Lam, solicitors for the Petitioner 1st Respondent absent 2nd Respondent absent | ||||||||||||||||||||