Case Document

100%Judiciary

FCMC 9657 / 2016

[2018] HKFC 198

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9657 OF 2016

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BETWEEN
	GM-SA	Petitioner
	also known as
	DG, M-S
	and
	DDPJ	Respondent

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Coram:

Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of submissions:	11 and 24 October 2018
Date of Ruling:	5 November 2018 (Paper disposal)

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R U L I N G
(Leave to appeal)

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Introduction

1.This appears to be an application by the husband for leave to appeal against the short Ruling of the 27 September 2018, although strangely nowhere does it actually state that in the summons of the 11 October 2018. Be that as it may the court is proceeding on the premise that that is indeed the case.

The law

2.The appropriate test when seeking leave to appeal is set out in s 63A District Court Ordinance, Cap 336. This states that either the appeal must have a reasonable chance of success or that there is some other reason in the interests of justice why the appeal should be heard.

3.It follows that generally speaking the Court of Appeal is unlikely to interfere with the exercise of a judge’s discretion unless it can be shown that she or he has clearly exercised her discretion incorrectly i.e. that it was exercised according to a mistake of law, or she had misunderstood the facts, or had taken into account something that was irrelevant or “the exercise of the discretion was ‘outside the generous ambit within which a reasonable disagreement is possible”.

Background

4.The court does not intend to set out the background of the case here. If necessary reference should be made to the Ruling on Costs dated the 1 December 2017, the Ruling on the husband’s first application for leave to appeal dated the 24 April 2017 and the Ruling on Jurisdiction dated the 27 September 2018, to which this application relates.

Discussion

5.In this instance the husband asks for an order in the following terms:

1.   The Court does not have jurisdiction to hear substantive argument on the Petitioner’s Summons dated 8 February 2018.

2.   The Consent Order dated 20^th September 2016 be stayed on an interim basis pending the determination of this application and determination of the appeal.

3.   The Petitioner’s Summons dated 8 February 2018 be adjourned sine die to be determined if need be after the determination of the High Court action HCA 2431/2017 or until further order.

4.   The Petitioner do pay the Respondent’s the costs of and incidental to the Appeal, to be taxed if not agreed.

6.I should say at the outset that I do not intend to accede to the husband’s request. Although this application has thrown up some interesting points with respect to the drafting of consent summonses/orders and whether or not it is possible to enforce an undertaking by way of an order for sale, it does not seem to me that those points are of sufficient weight, in the context of the application sought, to merit an order in the terms that the husband seeks.

7.I largely accept what Mr Todd, for the wife, says in his written submission. In particular, it is of note that the husband did not previously seek to stay the consent order of 2016, but given that he has now done so, I accept that it follows that a stay, by its very definition, must enable the court to vary its own orders. I also remain of the view, as summarized by Mr Todd that it must be right, as a matter of construction, that

… the agreement and the consent order were composite documents. The Husband gave undertakings to W and the Court, which he has failed to honour (whilst at the same time unconscionably inducing W to discharge the SCB mortgage). It is not open to him to approbate and reprobate. The dismissal order was plainly made on the premise that there had been full compliance with the undertakings as set out in that order. The dismissal was conditional upon those undertakings having been complied with.

I agree.

8.In conclusion Mr Todd says as follows:

Conclusion

The Husband’s application to set aside the order has not operated as a stay. If it did conditions could be imposed and that alone would gift the court with jurisdiction.

But absent a stay, the Court retains the following jurisdiction:

(a) Its general powers of enforcement or its own orders.

(b) The liberty to apply.

(c) The limited power to vary (by discharge or acceptance of new) undertakings.

(d) The Husband accepts there will be jurisdiction if his set aside application succeeds; it follows that there is also jurisdiction if it fails. There is no middle ground between these two positions. The Court always has jurisdiction to implement its order whether the existing one or, if replaced, the new one.

Again I agree.

Conclusion

9.In such circumstances I shall dismiss the husband’s summons dated the 11 October 2018. In the event that he takes this matter up to the Court of Appeal, it will be a matter for them to decide whether or not the smaller points referred to in paragraph 6 above warrant a hearing in the Court of Appeal in addition to their main application.

Costs

10.Given the above I shall make an order that costs of this application be to the Petitioner wife to be taxed if not agreed on a party and party basis. There shall be certificate for both counsel.