Lly v. Lky

FCMC 6897 / 2003

[2019] HKFC 66

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6897 OF 2003

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BETWEEN

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D E C I S I O N
(Directions on Implementation of Judgment)

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Introduction

1.The Petitioner was the Wife (“W”) and the Respondent was the Husband (“H”).  Although the marriage had been dissolved and ancillary reliefs concluded after a 10-day trial back in 2009, purely for the sake of convenience, I will refer to the parties as H and W in this Decision.

2.Today is the first day of a 2-day trial scheduled for H’s Summons issued on 6 October 2015 and W’s Summons issued on 27 December 2017.  W was legally represented when she issued the Summons and had engaged Counsel Mr Neal Clough and Mr Ken Cheng for the hearings.  H was again absent for today’s trial which I will set out below what had happened in the past.

The Ancillary Reliefs

3.On 19 February 2009, Deputy Judge Tracy Chan handed down the Judgment on the parties’ ancillary reliefs (“AR Judgment”) which touched upon a jointly owned property in Guildford, UK (“UK Property”) after a bitterly fought 10-day trial spanning from March to November in 2008.  The learned trial Judge ordered, inter alia, as follows :-

“IT IS ORDERED THAT :-

1. Subject to the following Paragraphs, the UK Property be sold with vacant possession;

2. The Petitioner shall have the first option to buy from the Respondent his interest in the UK Property within two months from the pronouncement of Decree Absolute under the following conditions :-

(a) The Petitioner do pay to the Respondent GBP235,610;

(b) Upon the payment of GBP235,610 as aforesaid, the Petitioner and the Respondent do forthwith transfer all theirlegal and beneficial interest in the UK Property to the Petitioner subject only to the mortgage in favour of Barclays Bank Plc (Co.Regn. No.102xxxx trading as The xxxx); and

(c) The Petitioner do pay all the necessary and reasonable costs of such conveyance.

3.  In the event that the Petitioner does not desire to exercise her right or option as provided in Paragraph 2 above :-

(a)  the UK Property be sold within two months from the pronouncement of Decree Absolute in the open market by the parties by private treaty or public auction at a price not less than GBP642,500.00;

(b)  the net proceeds of the sale after deducting

(i)  The mortgage loan due and owing in full;

(ii)  The debt in the sum of GBP56,000.00 owed to the mother of the Petitioner;

(iii)  All reasonable and necessary costs of and arising from such sale;

be shared equally between the parties;

4.  Upon the implementation of either Paragraph 2 or Paragraph 3 above, all the Petitioner’s claim for ancillary relief and all the Respondent’s claim for ancillary relief do stand dismissed;

5.  There be liberty to apply in relation to the implementation of the terms of above; and

6.  There be an order nisi that there be no order as to costs save that the Respondent’s own costs is to be taxed in accordance with the Legal Aid Regulations; this costs order shall be absolute and final 21 days from the date of the order.

AND IT IS FURTHER DECLARED THAT the Court is satisfied that there are no children of the family to whom section 18 of the Matrimonial Proceedings and Property Ordinance, Cap.192 applied.”             

4.The Decree Nisi dated 11 January 2006 was made absolute on 26 March 2009.

5.Suffice to say is that there has been a period of inactivity subsequent to the AR Judgment until H filed his Summons in 2015, say, a period of around 6 ½ years later.

H’s Summons dated 6 October 2015

6.In a gist, H’s Summons was seeking implementation of paragraph 3(a) of the AR Judgment and also updating on market value of the UK Property and also logistics for the sale.

7.H was all along acting in person since the filing of his Summons.

8.Whilst acting in person, W had filed her 7^th Affirmation in opposition to H’s Summons.  W in her 8^th Affirmation filed in support of her present Summons and at paragraph 5 thereof, referred to and adopted paragraph 3 of the 7^th Affirmation, to explain why she could not exercise the option to purchase the UK Property given under the AR Judgment within the stipulated time.

W’s Summons dated 27 December 2017

9.W with the assistance lawyers issued a rather ‘comprehensive’ Summons seeking directions and consequential orders for implementation of the AR Judgment.  It is thus pertinent to set out below the reliefs sought under the terms of W’s Summons :-

“2.  Further that in order to give effect to the true intent of the February 2009 Order there shall be the adjustments and/or revisions as appears from the Schedule attached hereto to take account of the increase in the value of the Guildford property; remaining mortgage payment due to Barclays Bank Plc; outstanding loan due to the Petitioner’s mother; advances to the Respondent by the Petitioner in part performance of the Petitioner’s option to purchase and such other financial adjustments as are necessary to take account of financial transactions since the making of the February 2009 Order; the judgment debt that remains due and owing in respect of taxed costs that the Respondent was ordered to pay to the Petitioner within these proceedings, and the Petitioner do pay a balance payment to the Respondent.

3.  In further implementation of the terms of the February 2009 Order upon the completion of the Conveyance pursuant to paragraph 2 hereof (“Completion”) an account shall be taken as to all income from and all expenses of the Guildford property. To the extent that there is a net profit from the Guildford property in that there is an excess of income over expenses or a net loss from the Guildford property in that there is an excess of expenses over income, the profits or losses shall be shared equally by the parties.

4.  Upon the compliance of paragraph 2 hereinabove, the Respondent do transfer all his interest in the Guildford property to the Petitioner forthwith.

5.  In compliance of paragraph 4 of the February 2009 Order, the parties’ respective claims for ancillary relief shall stand dismissed upon Completion including any claim for periodical payments since the making of the Decree Absolute herein on 26 March 2009 to the date hereof.

6.  Costs shall be provided for.

7.  There shall be liberty to apply as to the implementation of the terms of this Order.

Schedule

(1)  Deductions from the Property Value

(i)	Remaining payment due to Barclays Bank Plc	GBP	104,917.95
(ii)	Loan from Petitioner’s mother (as per Order dated 19 February 2009)	GBP	56,000.00
(iii)	Costs of Martin Devarga’s valuation report (as per Order dated 8 March 2017)	GBP	4,025.00
	Sub-total	GBP	164,942.95

(2)   Adjustments to Respondent’s Entitlement

(i)	Respondent’s 50% share of part redemption of the mortgage paid on 5 December 2014		GBP 10,000/2 = GBP 5,000.00
(ii)	Advances paid to Respondent between 27 June 2012 to 19 September 2016		HK$ 428,995.52 = ~ GBP 41,249.57 (converted from HK$ to GBP at an exchange rate of HK$ 10.4 to GBP 1)
(iii)	Judgment debt owed to Petitioner By Respondent to be set off including :-
	(a)  Legal fees as per Allocatur filed on 31 January 2017		HK$ 221,111.00 = ~ GBP 21,260.67 (converted from HK$ to GBP at an exchange rate of HK$ 10.4 to GBP 1)
	(b)  Accrued interest since 1 February 2007 to 22 December 2017		HK$ 228,396.66 = ~ GBP 21,961.22 (converted from HK$ to GBP at an exchange rate of HK$ 10.4 to GBP 1)
		Sub-total	GBP 89,471.46
		(interest on judgment debt calculated up to 22.12.2017 only and continues to accrue at a daily rate of HK$48.46/GBP 4.66)”

The “Belated” Trial

10.Since H’s Summons was issued in 2015 followed by W’s Summons in 2017, there were several directions hearings for exchange of affirmations where considerable time was spent on appointment of the single joint expert for updating the valuation of the UK Property. 

11.At last, the trial of both parties’ Summonses was scheduled for 2 and 3 January 2018 (2 days reserved).  On 27 December 2017, H applied for legal aid.  The trial scheduled was then vacated and adjourned to 28 and 29 August 2018.  H’s application for legal aid was subsequently refused.

12.On the 1^st day of the re-scheduled trial, that is, 28 August 2018, H appeared outside this Court with copies of 2 Affirmations[1].  In one of these Affirmations, H deposed that he was sick and could not attend the trial. The medical certificate would be sent to this Court.  According to the record of attendance, H simply left those copy Affirmations with the clerk of this Court and then left notwithstanding that he had been invited by the clerk to step in and explain his position.  The trial was then vacated and further adjourned to 26 and 27 September 2018 with directions that H to produce his medical certificate for his absence in the August trial no later than 4 September 2018.  However, no such medicate certificate had ever been produced by H.

13.On the 1^st day of the re-scheduled trial, that is, 26 September 2018, H appeared outside this Court again with a copy of an unsworn statement stating : “I am not able to attend the trial, scheduled to be held on the 26 September 2018 and 27 September 2018, because of my illness.”  There was attached a medical certificate issue by Ruttonjee and Tang Shiu Kin Hospitals issued at 12:10 hours, that is, early that morning stating that H attended the AED on 25 September 2018.  H was diagnosed to suffer from “Influenza” and was recommended 2 days’ sick leave.  Same as the last occasion, the clerk of this Court invited H to step in and explain his position.  H also refused and then left.  The re-scheduled trial was then further adjourned to today (with tomorrow also reserved). 

14.Given the fact that the trial had been vacated twice for H’s illness, specific directions were granted by this Court to cater for any such similar scenario happening.  The specific directions includes, amongst others, the following :-

“2.  The Respondent do comply with paragraph 7 of the Order made by His Honour Judge George Own dated 28^th August 2018 within 28 days of the date of this Order (that is on or before 24 October 2018) in respect of medical certificates.

3.  ………..

4.  ………..

5.  ………..

6.  Both parties do attend the adjourned trial personally.

7.  Any party failing to attend the adjourned trial, his/her respective Summons aforementioned (that is the Respondent’s Summons or the Petitioner’s Summons (as appropriate)) will be dismissed unless otherwise directed by the Court.

8.  In the event that any party is unable to attend the adjourned trial for medical and/or ill health reasons, he/she shall produce to the Court in advance of the adjourned trial a medical certificate obtained from a public hospital in Hong Kong with the following information: (a) diagnosis of his/her medical condition and/or illness; and (b) whether or not he/she is fit or unfit to attend a 2-day trial in Court.

9.  Save and except otherwise directed by the Court, the adjourned trial may be proceeded in the absence of either party.

10.  ………..

11.  ………..

12.  ………..

13.  No further application be filed by either party without the leave of the Court.

14.  ………..

15.  ………..”

15.According to the computer records, around 10:35 a.m. this morning the Family Court Registry received 2 Affirmations from H which was also affirmed only this morning.  One of the Affirmation attached with a medical certificate from Dr. Tsang Pak Ho dated 4 March 2019 recommended 2 days sick leave to H from 5 March to 6 March 2019 (that is, today and tomorrow).  H was diagnosed to suffer from “Respiratory Tract Infection”.  In the other Affirmation, H deposed that he would contest and defend all Summons, Affirmations, Submissions and Draft Orders produced by W and her lawyers.  When the clerk of this Court register for attendance, H did not appear outside Court No.3.

16.Given the fact that H had not been able to comply with paragraph 8 of this Court’s directions in respect of his present medical certificate, also taking into account that H had failed twice to comply with paragraph 2 of this Court’s directions in respect of his earlier medical certificate, and further the fact that the trial had been adjourned twice, the trial proceeded.

17.In the absence of H to pursue his Summons, it was dismissed by the Court with costs reserved. 

18.The trial was then proceeded along with W’s Summons only.

The W’s Ascertained Position

19.Before the trial started, this Court checked and clarified with Counsel Mr Clough as to the stance of W in her present application.  W’s Summons was marked at the margin with O.45 rr 6 & 8 of the Rules of the District Court (“RDC”), which provisions empower the Court to specify a time for compliance with Court Orders.  However, from reading the comprehensive terms of the Summons so drafted, it appeared that W is in effect seeking a transfer of the UK Property under Section 6(1)(a) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”). 

20.However, from reading paragraph 1 of the AR Judgment, what the learned trial Judge had decided was that there be an Order for sale of the UK Property under Section 6(1)(e) of the MPPO, subject to W having an option to purchase H’s interest within 2 months of the Decree Absolute by paying H a sum of money, that is, GBP235,610.00.  Paragraph 3 of the AR Judgment provided that had W not desired or exercised the option to purchase within the stipulated time, the UK Property be sold in the open market.

21.Having said, it happened that W’s Summons at present is akin to some sort of variation rather than implementation of the original terms of the AR Judgment.  As a fall back precaution, I checked with Counsel whether W is in effect seeking simply an extension of time to exercise the option provided under paragraph 2 of the AR Judgment and if so, W might have to make good her application, both in terms of the contents of the Summons as drafted and also the evidence filed in support thereof before I start the trial.  

22.Having had a short adjournment for Counsel to take further instructions on W’s stance, it was confirmed by Counsel that W is now simply seeking for an extension of time under Order 3 Rule 5 of the RDC to exercise the option granted under paragraph 2 of the AR Judgment, which was around 6 ½ years ago.  Counsel also confirmed no amendments would be sought for the Summons before the Court as the expression “directions and consequential orders” under paragraph 1 of the Summons so drafted are sufficiently wide enough to cover implementation by granting extension of time for W to exercise the option.  W would be relying on her 8^th Affirmation filed in support of her Summons which also adopted the matters stated under paragraph 3 of her 7^th Affirmation filed in opposition to H’s Summons.

Applicable Rules of Procedure

23.Order 3 Rule 5 of the RDC, Cap.336H provides :

“5(1)  The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2)  The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3)  ………

(4)  ………”

Applicable principles for time extension applications

24.I have not been assisted by Counsel Mr Clough as to any specific cases which he intended to rely upon for the time extension application save that I was referred to the explanatory notes under Order 3 Rule 5 of the Hong Kong Civil Procedure, 2019.

25.It is trite that the Courts have a wide discretion in considering time extension applications and draws no distinction whatsoever between various classes of cases[2].  Its object is to avoid injustice to the parties[3]. In making an application for an extension of time, a clear statement of the reasons for the inability to comply with the stipulated time limit should normally be provided[4]. The requirement of an explanation for delay on an application for time is the norm.  Cases where it may be appropriate to exercise a discretion to extend time notwithstanding the absence of an adequate explanation for the delay are an exception to the rule that an adequate explanation is normally required[5]. 

26.The case of Chiu Sin Chung v. Yu Yan Yan, Angela is a case for extension of time for seeking leave to appeal.  I find the principles there also applicable to the present case since there should be no distinction between different classes of cases.  In that case, Hon Keith J (as he then was) sets out the relevant principles as follows :-

“The Court's discretion to extend the time for appealing an order of a Master to a Judge in Chambers under Ord.3 r.5(1) is unfettered, but in my view the following principles can be extracted from the various cases cited to me:

(i)  "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation" Thamboo Ratnam v. Thamboo Cumarasamy & Cumarasamy Ariamany [1965] 1 WLR 8 at p. 12A-B, applied in Revici v. Prentice Hall Inc. [1969] 1 WLR 157 and in Re Adhiguna Meranti [1988) 1 HKLR 410.

(ii)  Accordingly, the prerequisite of an application to extend time is a clear statement as to the reasons for the time limits not having been observed and for any delay in then applying for an extension.

(iii)  "Once the time for appealing has elapsed, the respondent who was successful in the court below is entitled to regard the judgment in his favour as being final. If he is to be deprived of this entitlement, it can only be on the basis of a discretionary balancing exercise, however blameless may be the delay on the part of the would-be appellant": Norwich & Peterborough Building Society v. Steed [1991] 1 WLR 449 at p. 454G.

(iv)  The factors which are normally to be taken into account in that balancing exercise are (a) the length of the delay, (b) the reasons for the delay, (c) the chances of the appeal succeeding if an extension of time for appealing is granted, and (d) the degree of prejudice to the would-be respondent if the application for an extension is granted: Steed, p. 454H.

(v)  As for the reasons for the delay, "the fact that the omission to appeal in due time was due to a mistake on the part of the legal adviser, may be a sufficient cause to justify the court in exercising its discretion": Gatti v. Shoosmith [1939] 3 All E.R. 916 at p. 919G. Indeed, in that case, the Court of Appeal extended the time without consideration of the merits at all the period involved was only a matter of a few days, the appellant's solicitors had informed the respondent's solicitors within time of the appellant's intention to appeal, and the mistake was one "which, to anyone who was reading the rule without having the authorities in mind, might very well have arisen".

(vi)  Although the existence of prejudice to a would-be respondent is a ground for refusing an extension of time, the absence of prejudice to a would-be respondent is not a ground for extending the time: Re Adhiguna Meranti, p. 411H.

(vii)  As for the merits, they will play little part in the balancing exercise if the delay is short and is wholly excusable, but where the delay is substantial and is not wholly excusable, much more merit is required to overcome it: Steed, p. 455G-H, distinguishing Palata Investments Ltd. v. Burt & Sinfield Ltd. [1985] 1 WLR 942 from Rawasdeh v. Lane (Court of Appeal (Civil Division) Transcript No. 327 of 1988).

27.In the latter case of Fortune Asset Development Limited v. De Monsa Investments Limited [2009] 4 H.K.L.R.D. 439 where Registrar Au-Yeung (as she then was) sets out the principles for seeking extension of time as follows :-

“The Principles for Seeking Extension of Time

12.  Under the Civil Justice Reform, the Court shall further the underlying objectives by actively managing cases: Order 1A, rule 4(1). Active case management includes fixing of timetables or otherwise controlling the progress of the case: Order 1A, rule 4(2)(g). These rules are applicable equally to the main action as for interlocutory applications.

13.  Time laid down by legislation, court order or practice directions should be complied with. Before a timetable is to be laid down by a court, the parties should give realistic estimates of time.  If a party permits time (however laid down) to lapse without doing anything, the case/applications simply moves on to the next step.  Although the innocent party is at liberty to apply for e.g. an unless order with appropriate sanctions, it is incumbent upon the party in default to take the necessary steps to seek any needed extension of time.

14.  The Court has power to extend time even if an application for extension is made after the time for compliance has expired: Order 1B, rule 1(2)(a).  In exercising this power, the court will take into account all the circumstances including but not limited to the following matters:

(i)  What was the original time allowed and when has it expired ? The more the original time allowed, the more difficult it is to justify an extension.

(ii)  Was the original time laid down by consent or at the suggestion of the applicant ?  Under the Civil Justice Reform, a party is held more to his own bargain.

(iii)  Why was the original time not adhered to ?

(iv)  When was the application for extension of time taken out ? The greater the delay, the more difficult it is to obtain an extension.

(v)  Has the applicant used his best endeavours to secure the attendance of a witness to take instructions and impressed upon that witness the importance of attending on a certain date to affirm ?

(vi)  Is a witness’s availability within the “control” of the applicant ? For example, if the witness is an unwilling ex-employee, the court may have more sympathy with the applicant.

(vii)  That a client or witness has to travel frequently out of the jurisdiction is not a good reason in itself given the advanced means of communication these days by email, fax and telephone conference.  It is incumbent upon the applicant to obtain the instructions for drafting the affirmation in good time and to impress upon the witness the need to turn up on a designated date to affirm.

(viii)  If the witness is an expert, has the expert been informed of the time laid down by legislation, PD or the court, and committed himself to provide a report by that time ? If he had not so committed himself, why was that particular expert still engaged ?

(ix)  What realistically is the further time needed to complete and file the affirmation ? An applicant should not just casually pick a multiple of 7 days without regard to its adequacy for completing the affirmation.

(x)  Was there any de facto extension of time already enjoyed by the applicant, whether by way of consent, or in waiting for his time summons to be heard ?

(xi)  Will the extension of time sought have impact on any hearing date or milestone date ?

I will add that last minute change in the legal team in itself can hardly be a good reason for seeking extension of time.” 

The Court’s Views

28.With the above settled principles, I now consider W’s application for extension of time. 

29.First, I have reservations as to the wordings and terms of W’s Summons, as drafted, could be construed to be the same as a simple and straight forward application for extension of time (that is, time summons) even though I have the able submissions of Mr Clough that the expression “directions and consequential orders” might be wide enough to embrace time extension applications pre-implementation. As said, the marginal note of W’s Summons referred to reliance upon Order 45 rules 6 and 8 rather than the specific rule of Order 3 rule 3 of the RDC for time extension.  To ‘implement’ the exercise of an option, in my views, presupposes the option requires no modification and can be readily (my emphasis) exercisable there and then.  In the present case, for what I will say below, is just not the case.  The right to exercise the option had clearly lapsed long ago due to the passage of time.  Practically speaking, such right must first of all still exists and that time for the exercise of it be extended before the option to purchase could be implemented. 

30.Moreover, there is no reference both in the contents of the Summons, the 8^th supporting affirmation[6] and even from Mr. Clough’s oral submissions at this hearing as to how long extension of time W is now seeking after Counsel was instructed to confirm the precise stance of W’s application was purely for time extension.  It is uncommon for time extension application not to state how much more time was requested for the Court and the opposite party to consider; especially where such application was taken out long after the stipulated expiry date.  W’s Summons was issued on 27 December 2017 (that is, 8 years and 7 months after the stipulated expiry date, that is, 26 May 2009 or 2 months after the Decree Absolute dated 26 March 2009).

31.Now I will consider the substantive part of the time extension application.

32.Given the principles set forth in the cases above, W has to show by way of evidence the reasons for the delay in making the application.  The Court would have to consider the length of the delay and also any prejudice caused to H if time extension was granted to W.  Since the application concerns the extension of time to exercise an option to purchase, there is thus no issue of “prospects of success” as in those cited cases dealing with extending time to seek leave to appeal. 

33.At paragraph 5 of W’s 8^th Affirmation in support, she made reference to paragraph 3 of her 7^th Affirmation filed in opposition to H’s Summons (which Summons had now been dismissed) purportedly to explain the reasons for not being able to exercise the option within the time stipulated in the AR Judgment.

34.At paragraphs 3.3 and 3.4 of W’s 7^th Affirmation, she deposed as follows :-

“3.3  In an effort to carry out the Order, my solicitors wrote to the Respondent’s solicitors in a letter dated 2 March 2009 concerning the sale of the Property. The Respondent’s solicitors replied in a letter dated 27 March 2009 informing us that the Respondent had not replied to his own solicitors’ repeated attempts to reach him and asked my solicitors to contact the Respondent directly because the Legal Aid Certificate did not ‘cover the enforcement of the Judgment and/or related Order’. There is now shown and produced to me a true copy of the said exchange of correspondence marked exhibit “LLY-1” 

3.4  To avoid paying further legal costs, I became a litigant in person on 23 April 2009. I was unable to contact the Respondent until 2012, as I was not aware of his home address, office address (if any) or phone number.”

35.W’s lawyers’ letter dated 2 March 2009 produced as exhibit “LLY-1”, the contents of which are important which I choose to set out below :-

“Dear Sirs,

Re: FCMC 6897 of 2003

We refer to the captioned matter and the judgment of the Deputy District Judge T. Chan dated 19^th February 2009.

Kindly take your client’s instructions as to whether your client would arrange for sale of the UK property in due course or whether he wants our client to deal with the same.

Please let us have your earliest reply.

Yours faithfully, Tang, Lai & Leung”

36.Following the letter of reply dated 27 March 2009 from H’s lawyers, there was no further correspondence exchanged between respective lawyers or contacts amongst the parties themselves.  As a matter of fact, the AR Judgment went unattended by either party.

37.I do not accept W’s explanation that she was not being able to exercise the option within the time stipulated in the AR Judgment.  From reading the contents of the letter dated 27 March 2009 from W, there is no reference anywhere or indication that W was exercising the option to purchase the UK Property.  In the letter, it is clear that W was seeking H’s arrangement for sale rather than she was exercising her option to purchase, of which and if so exercised, H must transfer his legal and beneficial interests to W upon W paying him GBP235,610.00 and the costs of the conveyance but subject to the mortgage in favour of Barclays Bank Plc[7]. Seeking H’s arrangement for sale of the UK Property could not be equated with or mis-interpreted as exercising the option to purchase.  Therefore, I find against W in that she had not exercised the option within the stipulated time. 

38.The next question which immediately follows is whether the “unexercised” option to purchase is still in place now or that it had already lapsed 2 months after the Decree Absolute.  It is only in the former situation that the Court could consider any application for time extension.  In the latter situation, the Court could not ‘revive’ an option which had been extinct.

39.The answer to this question can be readily obtained by reading paragraph 3 of the AR Judgment which caters for the ‘default’ scenario of W not exercising the option within 2 months, it provides that the sale follows.  

40.The learned trial Judge having had all the materials and evidence before her for the 10-day ancillary reliefs trial saw fit to first make an order for sale of the UK Property but provided W with a 2-month option to purchase; failing which, the sale entails and the net proceeds of sale be equally shared between H and W. The learned trial Judge must have in mind the necessity of holding to a rigid time frame in order to cater for parties’ financial needs.  Given the fact that this is a UK Property, it would not be accommodation needs.

41.On such consideration, I find the option under paragraph 2 of the AR Judgment becomes extinct immediately upon expiry of the stipulated period which could not be extended or revived by the Court after it had lapsed.  Had I been wrong on such finding in that such option could be extended, I also find against W because she could not provide a clear statement of reasons as to why she was not able to exercise the option within the stipulated period of 2 months which, as a matter of fact, she had never exercised the option in the first place. 

42.As for the period of delay, I find it substantial.  On W’s own evidence under paragraph 3.4 of her 7^th Affirmation, she deposed that she was in contact with H again in 2012.  Yet it takes another 5 years from 2012 until December 2017 for her to take out the application for time extension, the delay is both substantial and inexcusable, not to mention the additional period of 3 years between expiry of the stipulated time in May 2009 and 2012 when W could have all the chance to seek directions for implementation of the AR Judgment same as what she is now doing. 

43.In my view, W had simply adopted a “let sleeping dogs lie” attitude, so to speak, and then to revive the matter only when she was faced with H’s Summons issued in 2015, which is 2 years before she filed her present Summons.  This is not surprising for the fact that over these years W had been receiving rental incomes on and off from the UK Property which incomes had yet to be accounted for. 

Any prejudice to H?

44.Either paragraph 2 or 3 of the AR Judgment, if implemented, would result in H receiving cash either from W or net proceeds of sale.  However, neither of this had happened so far since 2009.

45.Given the fact that H had been deprived of money values out of the UK Property, be it out of sale to W under the option as per paragraph 2 or out of sale at open market as per paragraph 3 of the AR Judgment, not to mention the rental incomes over these years which had yet to be accounted for, I find H would be prejudiced if W could now obtain any extension of time to exercise her option to purchase under the AR Judgment.

46.I am also prepared to take judicial notice that there was a significant difference in exchange rates for GBP to Hong Kong Dollars during the past 10 years or so.  This is another factor for finding prejudice upon H who have been deprived of the fruits of litigation. 

47.However, I also noted that it is wrong to put all the blame upon W for not exercising the option or attending to the AR Judgment since H could also rely upon paragraph 3 of the AR Judgment to seek a sale of the UK Property at the open market soon after W did not exercise the option.  H had not done so until 2015 when he issued his Summons.   

H’s Conduct of Litigation

48.I wish to say a few words on H’s conduct of litigation. 

49.Although there is no sufficient evidence that H was being capable to stand for trial during his illness, it is still amazing to see such coincidence that H fell into illness on separate occasions just immediately preceding trial (including this trial) and not turning up.

50.For such reasons, this Court had made caveat warnings at the last hearing on 26 September 2018[8] and granted specific directions for failure to attend trial due to illness or medical reasons.  H was absent for this trial again but was unable to comply with the specific directions and also failed to produce his long due medical certificate for the last trial in August when he was also absent.  As such, it results in H’s Summons being dismissed as per paragraph 7 of the said Order dated 26 September 2018 which contained those specific directions.

51.H’s conduct of litigation is dubious.   

Other Matters

52.We are now in the era of post-CJR (“Civil Justice Reform”). Order 1A rule 1 of the Hong Kong Civil Procedure, 2019 clearly sets out the underlying objectives which, amongst others, to ensure fairness between the parties in litigation. 

53.I do not intend to venture into H’s conduct of litigation any further save and except that these proceedings have now been unnecessarily prolonged with prejudice created and justice impaired.  Parties are encouraged to co-operate and consider the practical way forward to implement the AR Judgment and bring this matter to a speedy ending.

54.With my finding of the option under paragraph 2 of the AR Judgment being not extendable nor revivable, the only avenue that is open to the parties would be by way of a sale in the open market as per paragraph 3 of the AR Judgment.

My Orders

55.For all the above reasons, I will also dismiss W’s Summons dated 27 December 2017 in addition to my earlier dismissal today of H’s Summons dated 6 October 2015.

Costs

56.Given careful consideration to all the circumstances, I believe it is fair and reasonable not to make any costs order against any party, including all costs previously reserved.

57.Neither H nor W could be said to be the “winner” in these protracted litigation entitling him or her to have any costs order against the other party.

58.This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.

59.Last but not least, I am grateful for the assistance of Counsel given to this Court.

Mr Neal Clough and Mr Ken Cheng instructed by Messrs. Myra Li & Co., Solicitors for the Petitioner

Respondent unrepresented, absent at trial