Whw v. Cwk

FCMC 16044 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16044 OF 2009

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J U D G M E N T
(Decision)

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Introduction

1.This application is to determine a preliminary issue arising from the judgment summons by the wife (judgment creditor) dated 23 January 2017, whether the daughter’s maintenance in sum of $50,500 was outstanding, due and owing from the husband (judgment debtor).

The dispute

2.The wife stated in her judgment summons that the husband has failed to pay the maintenance to their daughter fully, which was so ordered by HH Judge Bruno Chan in his judgment dated 30 March 2016 in the wife’s application for variation of maintenance (“the Judgement”), inter alia:

“60. In conclusion, my order is therefore as follows:

(1) The Wife’s periodical payment shall remain as HK$33,000 per month until further order.

(2) The Daughter’s periodical payment shall be increased from HK$37,000 to HK$39,000 per month commencing from 1 April 2016 until she reaches 18 or completes full time education whichever is later, or until further order.”

3.The learned judge then varied in an order on 30 August 2016 (“the Back Date Order”) that:

“the daughter’s maintenance at $39,000 per month should be back dated to 1 April 2014. The respondent (judgment debtor) should make up the difference”.

4.Pursuant to the Back Date Order, the wife said the husband has paid partially the daughter’s maintenance. The breakdown of the arrears in sum of HK$50,500 are as follows:

(i) outstanding HK$2,500 for 5 months, for the period from 1 April 2014 to 31 August 2014; total HK$12,500; and

(ii) outstanding HK$2,000 for 19 months, for the period from 1 September 2014 to 31 March 2016; total $38,000.

5.The husband admitted he has not paid HK$50,500. The husband has means to pay and financial ability is not an issue. He disputed he was liable to pay such sum.

6.The husband was of the view that he had overpaid the wife her monthly maintenance since the Back Date Order, the wife should have credited the surplus towards the daughter’s maintenance. He had satisfied the maintenance to both the wife and the daughter as ordered.  The husband’s reasoning was premised on paragraph 59 of the Judgement, which reads:

“59. This total sum must of course first be properly apportioned by allotting about half of the household expenses to the Daughter thus bringing her total expenses to HK$39,000, while the Wife’s would become HK$38,000, against which however must be set her part-time income which I would round down to a more conservative average sum of HK$8,000 due to its irregularity. Given the fact that the Husband has earlier already voluntarily increased her share to HK$33,000, I do not propose to reduce it now and instead maintain that amount for the Wife in the hope that she can better manage her own spending and budget with the rest of this income of hers, and only adjust the Daughter’s monthly maintenance accordingly to HK$39,000, hence an increase of HK$2,000 per month, to commence from 1^st April 2016.” [emphasis added]

7.The husband said, emphasis should be paid to the reasoning of the Judgment, that being the needs of the wife was found to be HK$30,000 after deducting her ability to earn $8,000 per month. The net amount due to the wife should be HK$30,000. He interpreted the judgment to the extent that he was only required to pay the wife’s maintenance from 1 April 2016 in sum of HK$30,000 only, not HK$33,000. He had overpaid the wife out of his generosity. The wife should have credited such overpayment, being HK$3,000 x 24 months = HK$72,000 (from 1 April 2014 to 31 March 2016) towards the difference of the daughter’s maintenance so ordered in the Back Date Order.

Discussion

8.I am with the wife. A party to the judgment shall be bound by the orders granted. Be it the learned judge has ordered in the Judgment that the wife’s monthly maintenance be maintained at HK$33,000 and an increase of daughter’s monthly maintenance from HK$37,000 to HK$39,000. The Back Date Order was a further order that the husband should have paid a total sum of $2,000 x 24 months, i.e. $48,000 to the daughter for the period from 1 April 2014 to 31 March 2016.

9.It is expected in the matrimonial arena, a party will apply for variation of order when one’s needs or financial means changes. With respect to the husband’s voluntary increase of the wife’s maintenance, the excess sum cannot be counted towards any sum which might be due after a party’s successful variation of maintenance. In this application, the evidence does not reveal any precondition of the voluntary increase at time of each payment the possibility of being set off by any further order, it would be unfair for the wife if the husband could have taken the generous overpayment from him for the period from 2014 to 2016 to make up the difference as ordered in the Back Date Order.

Conclusion

10.I find the husband has not satisfied the daughter’s maintenance as order in both the Judgment and the Back Date Order. The difference of $50,500 is outstanding, due and owing.

11.I make the following orders:

(1) The husband (judgment debtor) do pay the wife (judgment creditor) $50,500 within 14 days hereof.

(2) A costs order nisi that the husband do pay the wife’s costs of the judgment summons filed on 23 January 2017, including the hearings on 24 April 2017; 29 May 2017 and 10 August 2017 in sum of HK$1,000. The costs order nisi be made absolute in absence of application to vary by way of summons after 14 days hereof.

Petitioner : acting in person

Respondent : acting in person