Chws v. Lnlai

FCJA 3385 / 2013

[2019] HKFC 82

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NUMBER FCJA 3385 OF 2013

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Leave to Appeal

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Introduction

1.The 1^st and 2^nd applicants (“the husband and the wife”) seek leave to appeal against my judgment on maintenance pending suit (“MPS”) handed down on 30 July 2018 (“the MPS judgment”).

2.I shall rely on the factual background of the parties contained in my judgment and also the abbreviations therein.

The summonses

3.The wife filed a summons on 30 July 2018 for leave to appeal my decision given by correspondence to parties dated 10 July 2018 (“the 1^st summons”).

4.The husband filed his summons on 13 August 2018 for leave to appeal against the MPS judgment (“the 2^nd summons”).

5.The wife filed another summons on 27 August 2018 (“the 3^rd summons”) for leave to appeal against the MPS judgment.

Paper disposal

6.I am alerted to the adoption of the new arrangement for application to leave to appeal in the Family Court on 13 August 2018 (“the new arrangement”). The 2^nd and 3^rd summonses were filed on or after 13 August 2018, both summonses for leave to appeal shall be determined in accordance with the new arrangement. Be it I have heard the leave to appeal for the 1^st summons on 4 September 2018, with a view to save costs, I shall deal with all the 1^st summons by paper disposal as well.  

Background of the 1^st, 2^nd and 3^rd summonses

The 1^st summons

7.Upon the wife’s request, I gave directions to both parties to lodge and serve written submissions of the MPS trial on 5 May 2018.  I ordered “the 2^nd applicant do lodge and serve her written submissions by 4:00 pm on 12 June 2018, failing which be deemed to have elected not to make reply to the 1^st applicant’s submissions”. The wife lodged a copy of the written submission by way of e-filing. It was discovered the said document appeared to be blank from page 3 onwards. I then ordered the wife to resubmit her written submissions by 4:00 pm on 6 July 2018, failing which be deemed to have elected not to file the same. The wife did not lodge her written submissions within the prescribed time. On 10 July 2018, I ordered the wife be deemed to have elected not to file the same. I then handed down the MPS judgment on 30 July 2018.

8.The wife appealed against my decision by way of correspondence that the wife has elected not to file her written submission in reply in the MPS trial.

The 2^nd and 3^rd summonses

2.Both the husband and wife appealed against the MPS judgment.

Applicable legal principles

3.Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there are some other reasons in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336.

4.Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2019, §59/2A/4)

The new arrangement

5.In accordance with the new arrangement, paragraphs 4 to 6 of the new arrangement are relevant and are reproduced as follows:

4. Together with the summons, the applicant for leave to appeal (“the Applicant”) has to file:

(1)   A draft grounds of appeal which should be attached to the summons;

(2)   Where appropriate, an affidavit explaining the reasons for any delay in support of an extension of time; and

(3)   A written statement/skeleton submission in support (which should not be more than 5 pages on A4 paper (single side only) legibly printed in no less than 14 font size and 1.5 line spacing, unless otherwise directed by the Court) as to why leave should be granted.

5. All the above documents, together with a notice of this new arrangement in both English and Chinese language (a copy of which is available at the Family Court Registry) must be served on the other party or parties to the proceedings except for ex parte proceedings (unless specifically directed).  An affidavit of service has to be filed within 3 days of service. [emphasis added]

6. If the Applicant shall fail to comply with the above new arrangement, he/she may run the risk of having his/her application struck out and dismissed on the ground of failure to prosecute the application with due diligence.” [emphasis added]

6.The 1^st summons was taken out prior to the adoption of the new arrangement, the hearing for leave to appeal was fixed and heard on 4 September 2018. Paragraphs 4 – 6 were inapplicable.

7.The 2^nd and 3^rd summonses were taken out after the adoption of the new arrangement, both the husband and wife have to compile with the new arrangement as above.

8.The husband filed the 2^nd summons on 13 August 2018. The summons itself, the draft grounds of appeal and written submissions were duly served on the husband on 13 August 2018. The husband has filed an affirmation of service on 16 August 2018.

9.The wife filed the 3^rd summons, draft notice of appeal and written submissions on 27 August 2018. Yet I failed to see she has complied with paragraph 5 of the new arrangement. I am not aware the wife has filed with Court an affirmation of service on time.

10.As a result of non-compliance of paragraph 5 of the new arrangement, her application for leave to appeal against the MPS judgment, i.e. the 3^rd summons, should be struck out.

11.I have to determine the 1^st and 2^nd summonses.

Analysis: the 1^st summons

12.The 2^nd applicant’s appeal against my order given by correspondence was misconceived. The wife has already been given a second chance to lodge and serve her written submission in reply in the MPS trial. The wife should have applied for an extension of time in lieu of an appeal. It is now redundant because the MPS judgment has been handed down already.  

Analysis: the 2^nd summons

The 1^st, 2^nd and 3^rd grounds of appeal

13.Firstly , the husband relied on the status of the two matrimonial properties in Discovery Bay and in London. Ms Kwan, counsel for the husband submitted I have erred not to have considered the rental income of the DB Property was received for the wife’s own use instead of mortgage payments.

14.Secondly, Ms Kwan submitted I have erred to conclude that interim maintenance on rental and food should be apportioned. I have misunderstood the son is living in the United Kingdom. The son is a full grown adult earning his own salary and has been living with the wife in Hong Kong. Notwithstanding this, the apportionment, if it should be opted, should be reviewed for reasonableness.

15.Thirdly, Ms Kwan submitted I have erred in allowing double counting of the household expenses. I granted the full amount of HK$12,000 household expenses which is extremely high standard from the husband’s point of view. I have also double counted the same amount in the expense of both the DP Property and the UK Property.

16.I maintain my judgment on MPS. Be it I may have misunderstood the facts of both the husband and wife at the MPS hearing, the parties have not yet given evidence. The MPS hearing was heard by way of submissions.

The 4^th ground

17.The 4^th ground of appeal is on backdating the payment of MPS. The husband submitted I have not exercised my discretion to have ordered the MPS to take effect at time of filing the joint application. The wife has only filed her MPS application on 15 February 2016 which is almost 2.5 years after the filing of the joint application. Her needs on MPS did not accrue until 15 February 2016.

18.Ms Kwan has helpfully submitted the backdating exercise is a matter of discretion. The time of filing an MPS application should not have much weight as the husband is paying the wife maintenance. Reviewing the background of joint application, the parties have had an agreement of settlement at time of filing the joint application. It is not surprising the wife did not take out a summons for MPS formally as late as 15 February 2016.

The 5^th ground

19.The 5^th ground of appeal is that I have erred in concluding the husband as ability to pay albeit the husband is paying the wife HK$80,000 consistently since January 2012. The husband’s position in his family companies is yet to be decided in preliminary issues raised and yet to be heard. I have omitted the fact that the husband’s failure in obtaining two loans from banks which is sufficient evidence that the husband’s difficult financial position.

20.The issue on MPS should be determined on a broad-brush manner. I came to the conclusion of the husband’s financial ability in light of the spending pattern of the husband for family expenses with the assistance of documents disclosed.

Conclusion

21.With the reasons foregoing, I do not see both the husband and the wife have real prospect of success in their respective appeals. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard. I refuse to exercise my discretion to grant leave of appeal to both the husband and wife.

22.It is not desirable for parties to appeal against MPS judgments when MPS be decided on a broad brush approach without detailed investigations of the parties’ financial positions. The order on ancillary relief should be able to adjust any overpayment or underpayment of maintenance received. I do expect parties should have proceeded to financial dispute resolution (or trial if not settlement can be reached) in view of a final determination of ancillary relief.

23.In respect of costs, I see it fit for the wife to pay the husband the costs of the 1^st summons when the appeal itself is misconceived. Inasmuch the 2^nd and 3^rd summonses are dismissed and struck out respectively, I see fit to order no order as to costs when the both the husband and the wife has not filed written affirmation in oppose the other party’s summons.

Orders

24.I make the following orders:

(i)   The wife’s (the 2^nd applicant’s) summons filed on 30July 2018 for leave to appeal against my decision by way of correspondence dated 10 July 2018 be dismissed.

(ii)   The husband’s (the 1^st applicant’s) summons filed on 13 August 2018 for leave to appeal against the judgment handed down on  30 July 2018 be dismissed.

(iii)   The wife’s (the 2^nd applicant’s) summons filed on 27 August 2018 for leave to appeal against the judgment handed down on 30 July 2018 be struck out.

(iv)   The wife (2^nd applicant) do pay the husband’s (the 1^st applicant) costs of the summons filed on 30 July 2018, to be taxed if not agreed.

(v)   There be no order as to costs of the husband’s (the 1^st applicant’s) summons filed on 13 August 2018.

(vi)   There be no order as to costs of the wife’s summons (the 2^nd applicant) filed on 27 August 2018.

Ms Thelma Kwan, instructed by Messrs. Haldanes, appeared for the 1^st applicant

The 2^nd applicant appeared in person