Chws v. Lnlai

CAMP 62/2019

[2019] HKCA 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2019

(ON AN INTENDED APPEAL FROM FCJA NO. 3385 OF 2013)

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

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

I.  Leave to appeal

1.1This is the 1^st applicant husband’s (‘the Husband’) application for leave to appeal against a maintenance pending suit order (‘the Order’) granted in favour of the 2^nd applicant wife (‘the Wife’).

1.2The parties were married in September 1990.  They have two children both of whom have reached majority.  In October 2013, the parties filed a joint application for divorce. A decree nisi was granted in December 2013.

1.3For the purpose of the Order, the parties have two landed properties for investment: one in Discovery Bay, Hong Kong (‘DB property’) and the other in London, UK (‘UK property’).

1.4The Husband paid the Wife HK$80,000 per month since January 2012.  In February 2016 the Wife applied for maintenance pending suit.   The Wife sought an upward revision to HK$467,123.40 per month.  She asked the Court to backdate such monthly payment to the date of the joint application for divorce.  The Husband sought a downward revision of only paying the Wife HK$50,000 per month, as the original HK$80,000 per month provision was inclusive of mortgage payment, and the two properties were then leased out.

1.5On 30 July 2018, Deputy District Judge Josephine Chow upheld the Wife’s case for an upward adjustment of her maintenance.  She made the following order :

1)  The Husband to pay the Wife HK$126,257.20 per month as maintenance pending suit from 1 August 2018 until further order;

2)  The Husband to pay the Wife the backdated sum of MPS from 11 October 2013 i.e. the date of the joint application for divorce in the amount of HK$2,682,917.60 by 18 installments, each installment in the sum of HK$149,050.98 from 1 August 2018 to 1 January 2020; and

3)  Costs reserved.

1.6On 13 August 2018, the Husband applied for leave to appeal against the judgment.  The Judge dismissed his application.  He now renews his leave application before us.  We will consider the application on paper.

II.  Grounds of appeal

2.The Husband relies on the following grounds of appeal :

1)  The Judge did not take into account HK$50,000 per month generated from the rental income of the DB property, which was taken by the Wife absolutely.  The evidence showed that the lease of DB property was for a period of two years from 29 December 2017 to 28 December 2019.  The tenant left the DB property on 21 March 2019.  The rental income that the Wife had received from the DB property between 29 December 2017 to 21 March 2019 was around $750,000.

2)  The adult son of the family is currently living with the Wife and the Judge was wrong to hold that the son only comes back from the UK to live with his mother from time to time.  Accordingly, calculations on rent, food and household items should be revised as the son should be responsible for his share of these expenses.

3)  The Judge was wrong to backdate the Order to 11 October 2013.

4)  There is no proper basis for the Judge to conclude that the Husband has the ability to pay the maintenance pending suit, particularly when the Order is backdated to 11 October 2013.  Further, the Husband was rejected in his loan application with Shanghai Commercial Bank.  Other than the Husband’s income he cannot provide any other form of security to the bank to raise loans.

III)  Our view

3.1We accept that it is reasonably arguable the Judge had not properly considered the evidence relating to the rental income of the DB property which may reduce the amount of arrears that the Husband is ordered to pay the Wife.  We also accept that the Wife’s expenses may need to be adjusted because they may include the expenses of the adult son who was living with her.  It is also reasonably arguable that the backdating should not be 11 October 2013.  However, it also necessary to bear in mind the interim nature of a maintenance pending suit which generally requires the Court to adopt a broad brush approach in deciding the amount to be awarded.  It is also for a limited duration until the final resolution of the issue of financial relief of the parties.  Inevitably there will be adjustment to the final order to be made in the event of overpayment or underpayment of the maintenance pending suit. 

3.2The Judge held that the Husband has the ability to pay the increased sum :

‘34. I take into account the mode of payment of HK$80,000 by the husband since January 2012 and generally on his disclosed documents which reflected substantive assets. I agree with the wife, be it the husband was earning a monthly salary from his employer, for the fact that the husband’s company is able to pay for his matrimonial expenses throughout the years, the husband must have some important role. To avoid a detailed investigation of the husband’s paying ability, I do not see the husband is out of funds to settle the wife’s MPS as little as HK$50,000 per month. I am satisfied the husband has ability to pay.’

3.3This is a case where the wealth of the Husband requires to be properly investigated.  He is currently the chairman of a company which is 80% owned by him.  This company is responsible for his expenses.  The Wife also contends that the Husband has beneficial interests in various companies.  This requires in-depth consideration in the pending ancillary relief hearing. 

3.4We are not convinced that it is reasonably arguable that the Judge was plainly wrong on the issue of the Husband’s ability to pay.  Certainly we are not convinced that it is reasonably arguable that the discretionary nature of the Judge’s decision has gone beyond the permitted limit so as to require our intervention.  In the circumstances we will dismiss the application.

3.5We will grant costs of the application which we will deal with summarily to the Wife.

3.6The Wife is required to submit a summary of her costs within seven days and the Husband to respond within seven days thereafter.  We will then consider the matter on paper.

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

2^nd applicant, unrepresented, acting in person