Whwv v. Wech

FCMC 11636/2019

[2020] HKFC 32

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11636 OF 2019

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Coram :  Deputy District Judge J. Chow in Chambers (not open to public)

Date of Hearing:  23 January 2020

Date of Decision: 23 January 2020

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DECISION

(Leave to Appeal)

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Introduction

1.The respondent (“the husband”) filed a summons on 6 January 2010 for leave to appeal against my order to vacate the Notice of an Application for Ancillary Relief (“the Notice”) against a property, a matrimonial asset (“the Property”). 

2.The husband’s summons will be considered in accordance with the new arrangement on application for leave to appeal in the Family Court dated 13 August 2018 (“the new arrangement”). The husband filed an affirmation of service on 9 January 2020. To expedite the hearing, I fixed a date for oral hearing prior to the wife’s reply.

Background

3.On 27 August 2010, the wife and the husband were lawfully married in Hong Kong. The wife is an investment principal and the husband is a technology research consultant. They have no child. On 27 September 2019, the wife filed a petition for devoice on ground of 2-year separation. Decree nisi has not been granted.

4.The wife took out a summons on 3 December 2019 for an order to vacate the Notice with the Lands Registry against the Property. The Property is the matrimonial home and it is the only family asset. The Property was registered in the wife’s sole name.

5.The wife’s summons was fixed on 6 December 2019, both parties appeared.

6.The wife deposed in her affirmation in support that the Property was purchased at HK$19.880 million with the assistance of a personal loan of HK$5 million advanced by the wife’s mother. The wife and the husband had each contributed HK5 million. The wife then applied for a mortgage for the remaining sum, around HK$5 million with a local bank in Hong Kong.

7.The husband moved out from the matrimonial home (the Property) in or about 2017, the wife has been living there until now. The Property was put up for sale since June 2019, until November 2019, the wife managed to obtain an offer from a purchaser at HK$26 million. On 28 November 2019, the wife signed a provisional sale and purchase agreement with the buyer and had received an initial deposit in sum of HK$1 million.

8.The wife, through her solicitors, attempted to seek the husband’s consent to sell the Property and to share the sale proceeds equally. The husband counteroffered to the wife that he intended to keep the Property by paying the wife of his share within a period of 8 years. The wife did not accept the offer. As a result of the husband’s refusal, the wife took out her summons on 3 December 2019.

9.At the hearing on 6 December 2019, both the wife and the husband are on the verge of reaching agreement of the wife’s summons. The wife did not intend to keep the Property. She said it is beneficial to both parties to crystallize and liquidate the matrimonial asset at this period of time when the property market may plunge next year. I suggested to the wife and the husband, any party should not benefit from the decision to sell or not to sell the Property. I was of the view, if the wife agreed to withhold from selling the Property, should the property market rise and an offer to purchase was obtained higher than HK$26 million, the sum exceeds HK$26 million should go to the husband. On the contrary, the husband should bear the loss of sale of Property when any offer to purchase was obtained anything less than HK$26 million in the future.

10.Whilst the wife’s legal representative agreed to give such undertaking and was about to draw up the consent summons for approval, the husband left the hearing unnoticed.

11.In the husband’s absence, the wife’s legal representative has prepared a draft order that the wife’s summons be adjourned sine die with an undertaking as I have mentioned above. I grant an order that unless the husband filed into Court and serve on the wife the undertaking by 13 December 2019 4:30 pm (which is 7 days from the date of hearing), the wife’s summons should be made order in terms. Alternatively, in event the husband filed with Court and served on the wife the undertaking by the same time, the wife’s summons should be ordered to adjourn sine die with liberty to restore.

12.My order on 6 December 2019 was duly served on the husband before the due date by both ordinary post and whatsapp. The husband failed to file the undertaking as directed. On 23 December 2019, I granted an order that the Notice be vacated against the Property with the Land Registry.

Grounds of Appeal

13.The husband stated in his draft grounds of appeal as follows:

“1. The order dated 23 December 2019 was being passed without considering the fair offer submitted dated 13 December 2019.

2. The Applicant (the husband) should be given the priority to acquire the matrimonial property given the respondent (the wife) suffers no financial loss with the fair offer dated 13 December 2019.

3. The injunction brought forth by the Respondent (the wife) dated 3 December 2019 is draconian in the nature and should not be granted, especially given the proximity of the original 1^st Appointment date of 13 January 2020 and the lastest one dated 12 March 2020.

4. Court should not make decision based on possibility of loss / harm.

5. Applicant (the husband) has already been suffering emotional harm and degradation in lifestyle for years for the Respondent’s (the wife’s) deliberate decision to lawfully deny access to matrimonial property.

6. Respondent’s (the wife’s) core argument in claiming “impossibility” to acquire the said property is based on flawed logic and facts.

7. Applicant (Husband) is at risk of suffering financial loss given the Respondent’s (wife’s) consistent behavior and track record in making unilateral financial decisions to minimize disclosure of assets into well-informed settlement which genuinely satisfy both parties to the dispute. ”

14.On my understanding to the husband’s draft ground of appeal, the husband is saying I was erred to have deprived him the opportunity to own the Property. The husband has once suggested to pay the purchase price of the Property to the wife in 8 years’ time. I have erred by allowing the wife to proceed with the sale and purchase of the same by vacated the registration of Notice. I have also erred to have considered the fairness of both parties’ financial position. The husband is also complaining the wife’s lifestyle and conduct.

Applicable legal principles

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

16.Reasonable prospect of success connotes the prospect of succeeding in the intended appeal 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 2020, §59/2A/4)

Leave to Appeal

17.It is open for any party to liquidate or crystallize a matrimonial asset at any stage of the proceedings. The wife has fairly proposed to share the proceeds of the Property in equal shares. The husband has full knowledge of the wife’s act. The husband was given an opportunity to facilitate a transfer of property by paying the wife’s share, save that his proposal to pay the purchase price over a period of 8 years was not accepted by the wife.

18.At the hearing, the wife’s legal representative submitted only to dispose of the summons by suggesting should the sale of Property fall off, the husband shall undertake to make up the difference or entitled to enjoy a lesser share of the sale proceeds. I have pay heed to the husband’s interest by suggesting the wife should not benefit from a selling price at any sum beyond HK$26 million.

19.On the verge of reaching an agreement, the husband disappeared unnoticed. The husband simply left the matter in abeyance without complying with my directions by filing an undertaking within 7 days. The wife’s summons was ordered in terms on 23 December 2019. The husband then filed his summons for leave to appeal with grounds barely comprehensible.

20.The husband’s appeal has no reasonable prospect of success in the appeal. I shall not exercise discretion to grant leave to appeal to the husband. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard.

Conclusion

21.With the foregoing reasons, the husband’s application for leave to appeal be refused.  

22.I make the following orders:

(i)  The husband’s (the respondent’s) summons filed on 6 January 2020 be dismissed.

(ii)  Costs of the husband’s (the respondent’s) summons filed on 6 January 2020 be to the wife (the petitioner) forthwith, with certificate for counsel, to be taxed if not agreed.

Mr Eric Leung instructed by Withers for the petitioner

The respondent acting in person, did not appear