Read the full judgment text of CAMP 163/2019 on BabelCite. This Court of Appeal judgment was delivered on 14 October 2019 before 林文瀚, 張澤祐.
Matrimonial law – ancillary relief – division of family assets – appeal – application for leave to appeal out of time – whether delay and explanation justify extension – whether proposed grounds disclose a real prospect of success – whether trial judge's exercise of discretion under section 7 of the Matrimonial Proceedings and Property Ordinance is appellable. Background facts include a 1984 marriage, a 2015 divorce petition on the ground of adultery, a nisi decree in 2017, contested ancillary relief, total family assets assessed at HK$3,618,614.81, and a 60:40 division in the petitioner's favour with a HK$100,204.88 lump-sum order against the respondent. The petitioner first sought leave from the trial judge, who refused it in February 2019; she then renewed her application to the Court of Appeal more than four months out of time. The Court of Appeal held, applying the established four-factor test for extending time (length of delay, explanation, prospects of success, and prejudice), that the delay was serious and the two summonses relied on as explanation did not stay the proceedings and bore no direct relation to the leave application, so the petitioner had to show a real prospect of success. None of her four proposed grounds had any real prospect of success: (1) the trial judge correctly applied the section 7 discretion and the LKW v DD framework, weighing the respondent's adultery and voluntary HK$930,000 payment; (2) the judge's inference that the petitioner had undisclosed income was a permissible view of the evidence and not a palpable error; (3) the respondent's non-disclosure of factory sale proceeds was appropriately addressed by including HK$1,350,000 in his asset pool; and (4) the respondent's alleged post-separation support of his girlfriend's family was already reflected in the 60:40 split. A further complaint about the redaction of bank statements was unsupported. Outcome: application for leave to appeal out of time dismissed, summons dismissed, no order as to costs, and a RHC O.59 r.2A(8) order precluding oral reconsideration.
Legal issues: Whether to grant leave to appeal out of time where the delay is substantial and inadequately explained · Whether the trial judge's exercise of discretion in dividing family assets 60:40 was appellable · Whether the trial judge erred in assessing the petitioner's earning capacity and financial position · Whether the trial judge erred in handling the respondent's failure to make full and frank disclosure of his finances · Whether the trial judge erred in not further adjusting the asset division to reflect the respondent's post-separation support of his girlfriend's family · Whether the trial judge erred in permitting the respondent to redact certain items in his bank statements
Outcome: Application for leave to appeal out of time dismissed; summons filed on 15 July 2019 dismissed
Cited by 15 cases · Cites 5 cases