Ak v. Mynt

CAMP 43/2019

[2019] HKCA 562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2019

(ON AN INTENDED APPEAL FROM FCMC NO. 16285 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.On 13 December 2017, the Wife petitioned for divorce based on the unreasonable behaviour of the Husband. She also applied for ancillary relief.

2.On 25 May 2018, the Wife issued an application under Section 17 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (‘MPPO’) to set aside dispositions by the Husband of assets worth US$69 million.  The assets are in the form of trusts held by the Husband or his family members.  Since the application of the Wife, the parties have been entangled in protracted discoveries.

3.On 12 December 2018, the Wife was informed by the Husband that in November 2018, a mortgage was taken out by the Husband unilaterally on what the Wife said to be the matrimonial home of the parties in which she is still residing (‘the property’) for the sum of HK$62 million. The Husband is the sole registered owner of the property.  A few days later on 18 December 2018, the Wife requested the Husband to pay the mortgaged monies into an escrow account to be accessed only with the Wife’s consent.  This was refused by the Husband. 

4.On 21 December 2018, the Wife applied on an ex‑parte basis for an injunction restraining the Husband from disposing of the mortgaged monies.  Deputy District Judge K.K. Pang on the same day granted the injunction.  On the same day, the Wife notified the Husband of the injunction, and further requested the Husband to disclose the mortgage documents.  The Husband did not comply with such request.

5.On 4 January 2019, the Husband applied to discharge the injunction.  The Family Court directed that this application is to be heard in June 2019.  In the meantime, on 24 January 2019, the Husband applied for leave to appeal against the injunction.  On 11 March 2019, the Judge refused the Husband’s application.  The Husband now renews his application for leave to appeal before this Court which we will deal with on paper.

6.The Husband accepts that he is out of time with the application.  The Husband had earlier on 26 March 2019 filed an application for extension of time of one day to file the summons for leave to appeal without actually filing that summons at the same time.  That summons was only filed on 28 March 2019 subsequent to directions given by the Registrar of Civil Appeal.

7.Explanation for the delay was given by the Husband’s solicitors.  We will focus on the merits of the application.

8.We will dismiss the application as we are of the view that the Husband has not put forward any grounds of appeal with a reasonable prospect of success. 

9.The Judge’s exercise of discretion in granting the injunction cannot be said to be plainly wrong.  The secrecy of the Husband’s action and his refusal to accept the Wife’s proposal to restrain the use of the money justified an ex‑parte application by the Wife. 

10.The mortgage of a matrimonial home clearly affects the interest of the Wife in the eventual distribution of family assets.  The dispute whether the property is a matrimonial home is clearly a triable issue.  The mortgage is an encumbrance on the property causing the rights of the Wife to be affected by the interest of a third party, namely, the mortgagee bank.  The problem will become acute if the Husband chooses to default on the repayment of the mortgage and the bank seeks to enforce its rights.  The Husband had glossed over the problem when he said that he has a right to choose which of his assets is to be dealt with by him.  The Wife is well justified to apply for an injunction in the circumstances of the case. 

11.Likewise, we do not consider that there is a reasonably arguable point on material non‑disclosure by the Wife in terms of the reason which caused the Husband to take out the mortgage.  The Husband’s own solicitors had identified the reason in the letter of 12 December 2018.  The Judge stated that he was apprised of the background of the case in granting the injunction.  There is no absolute requirement that the Wife must provide undertaking as to damages.

12.We do not consider that the other points in the proposed grounds of appeal will affect the outcome of the decision.

13.Accordingly, we will dismiss the application with costs to the Wife which we will summarily assess at $120,000. We do not see the need to impose any wasted costs order arising out of the delay in making this application.

Mr Richard Todd, instructed by Oldham, Li & Nie, for the petitioner

Ms Anita Yip SC, instructed by and Mr Jonathan Mok, solicitor advocate, of Jonathan Mok Legal, for the respondent