Chan Man Ki v. Yau Chun for
Read the full judgment text of DCCJ 1564/2018 on BabelCite. This District Court judgment was delivered on 29 November 2018 before Deputy District Judge K C Chan.
Civil procedure – Leave to appeal – Abuse of process – Henderson v Henderson – Costs order – District Court – Chan Man Ki – Yau Chun For – Property right – Ancillary relief – Strike out – Application dismissed – Costs made absolute – Whether defendant has reasonable prospect of success on 8 grounds of appeal against decision refusing to strike out Statement of Claim – Court held no reasonable prospect of success on any ground – Whether costs order nisi should be varied – Court held neither party really successful on jurisdiction point and refused variation – Costs order made absolute
Legal issues: Leave to Appeal · Costs Order
Outcome: Application for leave to appeal dismissed; costs order nisi made absolute
Cited by 2 cases · Cites 8 cases
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DCCJ 1564/2018 [2018] HKDC 1481 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1564 OF 2018 -------------------------
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--------------------- DECISION ---------------------- 1.By a written decision handed down on 28 September 2018 (“the Decision”), I dismissed the defendant’s application by summons taken out on 13 June 2018 to strike out the Statement of Claim and to dismiss the action on the ground that it is an abuse of process in that it is re-judicata in the wider sense (or is otherwise known as the Henderson v Henderson abuse). 2.By summons dated 10 October 2018, the defendant now seeks (a) leave to appeal against the Decision, and (b) to vary the costs order nisi made in the Decision. 3.The plaintiff’s claim, the relevant background and my reasons for refusing to strike out the Statement of Claim and this action are set out in the Decision and I will not repeat them here. For ease of reference, I adopt here the same abbreviations used in the Decision. LEAVE TO APPEAL Legal principles relevant to granting of leave to appeal 4.Section 63A(2) of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. 5.It is trite that a reasonable prospect of success involves the notion that the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (unrep. HCMP 288/2011) and Hong Kong Civil Procedure 2017 §59/2A/4. The proposed grounds of appeal 6.The defendant raises 8 grounds of appeal in the draft Notice of Appeal annexed to its summons. I will consider whether they have a reasonable prospect of success in turn. Ground 1 7.The proposed Ground 1 reads :
8.The gravamen of this ground, as I understand it, is that this court “failed to appreciate that the commencement by the Plaintiff [sic] a separate set of civil proceedings for similar relief was wholly misconceived and unnecessary and all that was necessary was for the plaintiff to seek within the ancillary relief proceedings the necessary declarations and determinations”, citing Rossi v Rossi [2007] 1 FLR 790 at §35. This quoted sentence in fact is an adaptation of what Mostyn QC said in paragraph 35 of the judgment in that case. 9.Rossi v Rossi dealt with an entirely different factual scenario and the observation in paragraph 35 of that judgment was made pertaining to the facts of that case. Rossi v Rossi was the consolidated trial[1] of the husband’s claims for ancillary reliefs and his claims by separate proceedings under the Partnership Act 1890 and the Trusts of Land and Apportionment of Trustees Act 1996 for declarations of beneficial interest and an account in relation to an antique business which he claimed had been a joint venture between him, the wife and her son from a former marriage, which after his arrest in 1993, was ran by the latter two alone. There were thus the separate proceedings pursued along side the ancillary relief proceedings. In that setting, Mostyn QC held obiter and in gist, that the question of the husband’s claim of beneficial interest in the business could and should have been adjudicated within the proceedings for ancillary relief even though the interest of a third party (the wife’s former son) was involved as the son could and should have been joined; and he observed that “the two separate sets of civil proceedings under the Partnership Act 1890 and TOLATA was wholly misconceived and unnecessary”[2]. The husband’s claim for beneficial interest was dismissed as the judge found against it on the facts. 10.The case is clearly distinguishable and is not an authority showing that the plaintiff’s present claim is “misconceived or unnecessary” and therefore an abuse under Henderson v Henderson. 11.I am of the view that Ground 1 has no reasonable prospect of success. Ground 2 12.The proposed Ground 2 reads :
13.This ground is based on a misunderstanding or mis-reading of my Decision. 14.In paragraphs 33, 39 and 44 of the Decision, I said
15.In paragraph 33 of the Decision, I observed what the nature of the plaintiff’s pleaded claim was as compared to the nature of a claim for ancillary relief (alluded to in paragraphs 28-32 of the Decision) as part of my analysis as to whether the claim could and should have raised in the Divorce Proceedings under the principles of Henderson v Henderson abuse. There, I made no determination, as is complained here, “that the Plaintiff’s present action … had no matrimonial implication” (whatever that means). Rather, as stated in paragraph 27 of the Decision, it is not disputed that it may be possible for the plaintiff to obtain the return of the Gift by an application for ancillary relief, but according to the governing principles and considerations thereunder. 16.In the Decision, I have never “held that the Plaintiff should not make a claim during the Family Proceedings”. 17.I conclude that Ground 2 has no reasonable prospect of success. Ground 3 18.The proposed Ground 3 is this :
19.This ground presupposes that there is in existence some statute, rule of substantive or procedure law (other than Henderson v Henderson) that restrict the plaintiff to commence her present claim in the Family Court. None was shown to me in the hearing of the striking out, or in this hearing for leave. The 3 cases cited in this ground all concerned factual situations where there were actually 2 parallel proceedings commenced and pursued in relation to the same claim(s) or subject matter(s). That is not the situation in the present case. 20.There is no reasonable prospect of success for Ground 3. Ground 4 21.The proposed Ground 4 is this :
22.This argument (and the decision cited in support - Far Wealth Ltd and another v Lo Ki Mou HCA 1617/2016 unrep., 19 October 2017) was not raised before me during the hearing for striking out and is only raised for the first time now. Whether it would be allowed to be so raised is a matter for the Court of Appeal. 23.That notwithstanding, Far Wealth Ltd is a case where the claim in the subsequent High Court action could have been raised by way of counterclaim in the earlier and existing Vendor Purchaser summons between the parties. There Deputy High Court Judge Gilchrist, having held in gist that the same issues could be raised and adjudicated in the same manner, upheld the striking out by the Master upon consideration of the underlying objectives. 24.Whereas in the present case, there are no parallel proceedings as the parties have never made any application for ancillary relief. Moreover, my view is, as expressed in paragraphs 27 to 33 of the Decision, that there are significant differences in the nature, mode of proceeding and such between making a claim for the return of the Gifts by way of civil action and by way of an application for ancillary relief. 25.It also seems to me that this proposed ground is predicated upon the wrong assumption that where an alternate venue for litigating is allowed, there would necessarily be an offence of the underlying objectives. 26.Also, to be clear, I have not rejected the plaintiff’s point based on Lit Wing Yee v Tang Cheuk Lun[3], I only observed obiter that relating to a claim for the return of specific property, though the Family Court cannot made an order for its return or damages in lieu consequential upon an established property right (as decided in Lit Wing Yee), the result of its return may be achieved by an application for ancillary relief which however would be decided under the principles and considerations governing the granting of ancillary relief. 27.This ground has no reasonable prospect of success. Ground 5 28.It reads :
29.In this ground, the defendant does not identify any principle or case law which state that these matters (even if they were correctly and accurately stated[4]) should carry such important weight (as the defendant seems to suggest) under the settled law regarding the Henderson v Henderson abuse analysis. As can be seen in the Decision, I have these matters in view but did not consider them as important under the settled law. 30.There is no reasonable prospect of success for this ground. Ground 6 31.It reads :
32.The fact that the defendant disputes possession of the Jewellery was not mentioned in his written or oral submissions. Paragraph 9(f) of the Defence, being the last sub-paragraph under sub-heading “A. Plaintiff’s Unrestricted Free Access to Matrimonial Home” under the big heading “After Brief Removal of the Plaintiff” did put in issue whether the defendant is in possession of the Jewellery, which matter therefore is not “not disputed” as I previously understood. Evidently from the reasoning in the Decision, this was a matter by way of background that was not part of my reasoning; and the Decision was not based on this. This as a ground of appeal has no reasonable prospect of success. Ground 7 33.The proposed Ground 7 states :
34.It is here barely asserted that they are irrelevant. 35.Sub-paragraphs (a) and (b) above are relevant as pertaining to “the court … must now… bear in mind not just the parties before them in any particular litigation, but also the position of other litigants in the court process”, “to ensure that the resources of the court are distributed fairly” and “in examining aspects such as abuse, the court is concerned with balancing interests, not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice” (per Ma CJ, quoted in sub-paragraphs (4) and (5) in paragraph 23 of the Decision). Sub-paragraph (c) clearly pertains to the position of the defendant. In any event, they are but a few of all the considerations and they are not weighty considerations. 36.Again, there is no reasonable prospect of success for this ground. Ground 8 37.The proposed Ground 8 states :
38.Collin Navigation Co SA v Perusahaan Pertambangan Minyik Dan Gas Bumi Negara was not cited by the defendant in the hearing for striking out; and is only cited in this instance in support, as I understand it, of the position that the mere commencement of this “second action” by the plaintiff is itself vexatious. 39.Collin Navigation Co SA was a 1986 decision that clearly was based on its very special facts. In that case, and in the words of Kempster JA, “[this appeal] is but a long history of business dealings and litigation between the parties”[5]. Such long history took that learned judge almost 5 pages in the report to summarize. It is outside the ambit of this decision to fully set them out save mentioning some markers. The agreement whereby the 2 tugboats were contracted for was dated 1 July 1971. Notice of their readiness was given in September 1972 which the defendants there did not act on. A writ with leave to serve out of jurisdiction was issued only on 26 February 1980. The boats were sold by the plaintiff on 29 December 1981 at a price higher than that payable by the defendants under the contract. In a hearing on 4 February 1982, part of the claim (essentially a claim for the price) was struck out as being time barred. There were then a number of interlocutory proceedings and without prejudice contacts between the parties. On 17 February 1984, the plaintiff obtained leave to serve a fresh writ out of the jurisdiction claiming damages for breach of contract, among others, under clause 7 which allow the defendants no credit for the difference between the contract price and the resale price. That leave to serve the writ out of jurisdiction was set aside by Mayo J. The plaintiff then appealed against it. 40.It was at the end of the judgment dismissing the appeal that Kempster JA said “It is the further well-known and analogous principle, not canvassed in argument, that it is vexatious to commence a second action asking for relief which might have been sought or obtained in the first …” (my emphasis). On the facts of that case (and though not mentioned in that sentence), the defendants there were clearly “vexed”. 41.As I set out in paragraphs 22 to 26 of the Decision, the principles governing whether a claim is an abuse under Henderson v Henderson have been developed and explained in a number of subsequent cases cumulated to those clearly and succinctly summarized by Ma CJ in the Court of Final Appeal case of Ko Hon Yue v Chiu Pik Yuk[6]. 42.The passage by Lord Bingham in Johnson v Gore Wood & Co (a firm)[7] I quoted in paragraph 26 of the Decision is directly on point, and for ease of reference, I quote again with added emphasis:
43.In my view therefore, the short sentence in Collin Navigation Co SAshould now be understood on its own facts and by reference to these now well developed and explained principles. 44.It is therefore now clear that it is not the case that the maintenance of a claim that could have been part of an earlier claim per se would automatically amount to an abuse of process. Every case has to be judged according to its facts and circumstances. The court must now examine closely and carefully whether “an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could or should have been raised in the earlier proceedings” and whether the other party is being “vexed” by the subsequent set of proceedings. 45.Having applied these principles and so examined, I held in the Decision that there was no such abuse. 46.I therefore conclude that there is no reasonable prospect of success on this ground. 47.It is not advocated by the defendant that there is some other reason, nor do I see any, in the interests of justice why the appeal should be heard. 48.For these reasons, I dismiss the application for leave to appeal. VARYING COSTS ORDER NISI 49.The defendant now asks that the costs order nisi be varied from the defendant paying the costs of the application to only paying 50% of such costs or paying such proportion as the court deems fit. 50.The only ground, as explained in the 1st affirmation of Tang Wing Lam David filed on 10 October 2018 and in gist, is that the defendant is successful as against the plaintiff’s argument that the Family Court has no jurisdiction to grant the relief sought by the plaintiff in this action; and such success merits the reduction sought. 51.To state it as a matter of jurisdiction is too simplistic and inaccurate a characterization of the points involved, of the plaintiff’s argument or of my views thereon. The plaintiff’s point, relying on Lit Wing Yee v Tang Cheuk Lun[8], is that the Family Court, in dealing with ancillary relief, cannot order a party to the marriage to discharge outstanding liabilities to the other party in contract, tort or a trust outside ancillary relief. While the plaintiff very fairly did not dispute, as I so recorded in paragraph 27 of the Decision, that the result for the return of the Gift may be achieved by an application for ancillary relief, albeit it would then be a matter of discretion and to be decided under the principles governing the granting of ancillary relief. My views thereon are expressed in paragraphs 27 to 31 of the Decision and paragraph 26 above, and I do not repeat them here. 52.In my view, neither party can be said to be really “successful” or “unsuccessful” on this point, but the analysis and arguments by counsel on their behalf on this aspect were helpful. I therefore do not think in the exercise of my discretion on costs that this matter could or should affect the general position of the costs following the event. 53.I therefore refuse this application and make absolute my costs order nisi. Disposal 54.I dismiss the defendant’s both applications and now proceed to deal with costs.
Mr Matthew Lai, instructed by Lo, Wong & Tsui, for the plaintiff Mr Raymond Fong, instructed by Fung Wong Ng & Lam LLP Solicitors, for the defendant [1] See §3 of the report [2] §35 of the report [3] [2018] 2 HKLRD 227 [4] I think (c) could be misleading in that parties have never made any claim for ancillary relief in the Divorce Proceedings; and not that such claims were made and no order for them was given. [5] At p.79F [6] (2012) 15 HKCFAR 72 at 114-115 [7] [2002] 2 AC 1 at 31A-E [8] [2018] 2 HKLRD 227 |
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