Kcma v. Abc and Others
Read the full judgment text of HCMC 1/2019 on BabelCite. This High Court CFI judgment was delivered on 21 May 2020 before Hon B Chu J.
Matrimonial Proceedings and Property Ordinance – litigation funding – Family Trust – costs provision – ancillary relief – FDR – quantum – Whether Family Trust is source of funds – Whether H can afford costs – Whether W's amount exaggerated – W's 2nd Summons adjourned sine die with liberty to restore; dismissed upon receipt of HKD 1.5m from Trust – Direction hearing fixed on 3 June 2020 – Costs reserved
Legal issues: Availability of Family Trust funds · H's ability to pay · Quantum of costs
Outcome: W's 2nd Summons adjourned sine die with liberty to restore; dismissed upon parties' solicitors receiving HKD 1.5m from Trustee.
Cites 4 cases
|
HCMC 1/2019 [2020] HKCFI 848 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MATRIMONIAL CAUSES NO. 1 OF 2019 ________________________
_______________________
____________________ D E C I S I O N _____________________ 1.This Court has previously handed down two decisions in these matrimonial proceedings, the first decision on 21 November 2019 in relation to W’s application for joinder of the Trustee of the US Trusts and for joinder of H’s father (“Joinder Decision”), followed by a 2nd decision on 22 November 2019 on W’s Injunction Application against H (“Injunction Decision”). As seen in those decisions, there was also the Discovery Application issued by W which was adjourned sine die with liberty to restore. I shall continue to use the abbreviations in those decisions, save where otherwise indicated herein. 2.The present application before the Court is made by W for provision for costs or litigation funding by way of a summons issued on 12 August 2019 (the 2nd Summons as defined later). Before I consider W’s present application, I will first set out the relevant financial applications which have been made so far by the respective parties in the present proceedings. The relevant financial applications 3.In so far as this Court can gather, there have been the following financial applications issued:
4.On same day of the Transfer Order, namely 11 December 2018, Judge Melloy also made the following orders:
5.At present,
6.W has further indicated that she intends to issue the following applications:
W’s applications for litigation funding 7.According to W’s evidence in her 8th affirmation filed in the FCMC proceedings[1] and a chronology submitted on behalf of W[2] (“Litigation Funding Chronology”), there have been the following requests and/or applications for litigation funds by W from H :
8.The without prejudice basis upon which the Melloy Order was made (“WP Basis”) was as follows:
9.In W’s 2nd Summons, she sought periodical payments to be applied towards her litigation funding up to the conclusion of the private FDR (financial dispute resolution) or mediation or before the Pre-Trial Review hearing which was at that time fixed on 24 September 2019. The total amount sought by W in the 2nd Summons was HKD 1,507,270 as follows :
10.W’s 2nd Summons was originally scheduled for a substantive hearing on 3 March 2020 but due to the courts being generally closed with cases generally adjourned, this Court directed the parties to consider disposal of the 2nd Summons on paper, which was subsequently agreed. 11.W’s Skeleton Submissions were lodged on 23 March 2020 and attached thereto is a draft order[3] (“Draft Order”). It appears from the Draft Order that the total amount of litigation funds which W is now seeking is in the region of HKD 3,230,000 to be paid :
12.It further appears in the Draft Order that the costs provision is now to be applied towards W’s legal costs up to the 1st Pre–Trial Review of the final AR Trial. Legal principles 13.The Court is empowered to include an element for legal costs provision in an order for maintenance pending suit under s 3 of the Matrimonial Proceedings and Property Ordinance, Cap 192. As recently set out by the Court of Appeal in WW and LLN [2020] HKCA 178, CACV 524/2019, 25.03.20, following HJFG v KCY [2012] 1 HKLRD 95 and Currey v Currey [2006] EWHC Civ 1338:
14.There are no disputes in relation to the above principles. The issues in the present application 15.It is submitted by Mr Shaphan Marwah on behalf of H that the issues in this application are:
W’s means 16.W’s case is that she does not hold any assets of value and that during her 15 year marriage to H, she was and still is a homemaker and financially dependent on H. 17.In her 1st Form E filed on 16 January 2017, W deposed to having no income. She had only one bank account at HSBC in her name, which was only opened in November 2016. She disclosed under “Liabilities” that her then legal costs were HK$76,277. Her net assets of HK$103,537 as at the date of her 1st Form E. 18.In her 2nd Form E (truncated) and filed on 16 October 2018, W had again deposed to having no income and expenses of a total of HK$105,800 per month made up of (i) general expenses of HK$43,500; (ii) personal expenses of HK$27,860; and (iii) Children’s expenses of HK$34,500. 19.H has alleged that W is expected to receive inheritance from her family including but not limited to a property in Vitet, St Barthelemy, which according to H is valued at approximately USD 6.5m and that further there is another property held in trust by W’s father for the benefit of W , which consisted of land worth approximately USD 2m[4]. W denies these allegations. 20.Anyway, as seen in Mr Marwah’s submissions on behalf of H, W’s potential inheritance or beneficial interest in land held by her father are not relied on by H for the purposes of this application, and that the one key issue is whether the Family Trust is a source of funds reasonably available to W. 21.I will come to the Family Trust later, but so far as W’s assets are concerned, I am satisfied that she has no sufficient assets presently held in her personal name which can reasonably be deployed, whether directly, or as the means of raising a loan in funding legal services for her. There is no evidence that she has made any application for legal aid, but with the MPS Order and her financial resources from the US Trusts, it does not seem to appear that she will be able to meet the means test. H’s means 22.It is H’s case that he cannot afford to pay the sums sought by W for her litigation funds, nor his own costs, without receiving any distribution from the Family Trust. 23.In H’s 1st Form E filed on 1 February 2017, he disclosed a base salary of USD 400,000 per year, which was about HKD 260,000 per month. H further disclosed that he had received bonuses for 2015 and 2016 as recorded in his tax returns and said at the time that he was unlikely to receive an annual bonus for 2017. He disclosed liabilities of HKD529,270 and net assets totalling HKD 46,379,244, which consisted of mainly interests in his bank accounts of about HKD 4,034,555 and assets held by the Family Trust which were estimated to be about HK$40.95m at the time[5]. 24.Then in his 2nd Form E (truncated) filed on 16 October 2018, he disclosed that his income was then HKD 264,570 per month with an unknown discretionary bonus and a housing allowance of HKD 65,859. He also disclosed interests in his bank accounts being reduced to HKD 1,703,425 and he then disclosed liabilities of HKD 11,731,159. 25.A summary of H’s income based on his Employer’s Returns was prepared by W’s legal representatives (“W’s Table”)[6] and it is submitted on behalf of W that H’s average income with rent refunded from 2015/2016 to 2018/2019 for those years was HKD 6,984,244 a year or HKD 582,020 per month[7]. In fact the figures in W’s Table also seem to be reflected in H’s Table below. 26.Mr Marwah has also in his Submissions prepared a table of H’s income which I set out below (“H’s Table”):
27.It is clear from W’s Table and H’s Table that the total of the 4 items in H’s Table, namely (i) Wages (or salary), (ii) Rental, (iii) Bonus (ie cash) and (iv) Other Rewards, produced the same figures which averaged HKD 6,984,244 a year for those 4 years between 2015/16 to 2018/2019 or a monthly average of HKD 582,020 submitted on behalf of W. 28.However, W’s figure of the monthly average of HKD 582,020 was the gross income without taking into account deductions for H’s taxes and his MPF contributions, and further averaged over 4 years. Anyway, on the figures for 2018/2019, according to H’s Table, his net income would be HKD 4,189,316 for the year 2018/2019 or a monthly average of about HKD 349,110. 29.H has explained that his income consists of a cash component and a fund unit component which vests in subsequent years, and the vesting of illiquid fund units shows up as deferred cash/fund units in the compensation table for each year of vesting. On the other hand, W has complained about H’s disclosure and that he never tried to explain properly various documents disclosed by him. 30.Pursuant to the MPS Order, H is to pay W maintenance pending suit /interim maintenance of HKD 105,800 per month with effect from 1 January 2019 being HKD 26,450 per month for W and HKD 26,450 for each of the 3 Children, and in addition, H has provided undertakings to continue to pay for rent, school fees and school trips, extra tuition and school bus and in so far as it was relevant car insurance and repairs, plus monthly expenses at the Hong Kong Cricket Club, provision of medical insurance through H’s company and uninsured medical and therapy cost[10]. According to H, the total payments he has been making to W every month in cash and/or pursuant to his undertakings total HKD 260,050 per month and that his own expenses (including rent) come to HKD 140,000 per month[11]. 31.At the hearing before Judge Melloy, W was seeking HKD 100,000 per month for litigation funding, and the Judge had said she was not of the view that H had the funds to pay for these costs from any other means other than the Family Trust. It was her finding at the time that H was receiving a base income of HKD 313,750 net of MPF and that he had received significant bonuses in 2015 and 2017 but they were discretionary, and the Judge had observed that unless H received a bonus of some kind, it was hard to see how he was going to be able to make ends meet including meeting W’s interim expenses[12]. 32.According to a recent letter dated 20 February 2020 produced by H, H said he expected to receive a cash bonus for 2019/2020 of USD 50,000-100,000 although this had not yet been decided [13]. 33.As set out earlier, H has made an application for downward variation of the MPS Order and H’s Variation Application will be dealt with on paper after the present application. 34.In any event, a detailed examination of the parties’ means can only be considered at the full ancillary relief trial and at this interim stage, the Court can only adopt a broad brush approach, and having considered the evidence presently before this Court, I have come to the view that there is no sufficient evidence that H will be able to pay his own litigation costs plus W litigation costs without receiving any distribution from the Family Trust. The Family Trust 35.As H has pointed out, PBB, the Trustee of the Family Trust and the 2nd Respondent herein has informed W directly in a letter of 16 May 2018 that she is free to request a distribution at any time[14]. 36.That there be distributions of funds from the Family Trust for W’s litigation funding has in fact been proposed in letters between the parties’ respective solicitors. I will set out below the relevant letters between the parties on their respective proposals. 37.In the letter dated 6 September 2019 sent by W’s solicitors to H’s solicitors, H was asked to confirm what his position was in relation to W’s 2nd Summons and whether funding could be provided, either in the way that it was done on the last occasion, without prejudice to the parties’ respective positions as stated in the Melloy Order or otherwise[15]. 38.In H’s solicitors’ reply 11 September 2019, they referred to paragraph 35 of W’s 3rd affirmation, and that as W was willing to agree to her litigation funding to be financed through the Family Trust in the same manner as the Melloy Order, they therefore enclosed a joint letter to the Trustee requesting a distribution of HKD975,000 to each party for the purposes of litigation funding[16] (“Joint Request”). 39.Pausing here for the moment, in the above letter, H’s solicitors attached a copy of the letter which was to be sent to the Trustee. However, notwithstanding what was said by H’s solicitors, the Joint Request was for a distribution of HKD 950,000 only to each party, and further it was stated to be without prejudice to how W may argue the issue of costs at the final ancillary relief hearing. Neither the amount nor the basis was consistent with what was stated in the parties’ respective solicitors’ letters, nor was the basis same as the WP Basis in the Melloy Order. 40.On 18 September 2019, W’s solicitors wrote and raised certain queries on H’s Form H of that date. Further, on 18 September 2019, with the call over hearing on 24 September 2019 approaching, W’s solicitors wrote to the Court setting out W’s proposed directions for the call over hearing, including amongst other things, directions for W’s 2nd Summons. In this letter to the Court, W proposed that if agreeable to H, orders be made along those orders sought in paragraphs 1a. and b. of W’s 2nd Summons, or:
41.There was no progress and thus at the call over hearing on 24 September 2019, directions were then given by this Court for a date to be fixed for substantive argument for W’s 2nd Summons. 42.Subsequently, as mentioned earlier, this Court handed down the Joinder Decision and the Injunction Decision respectively on 21 and 22 November 2019. This was followed by a further direction hearing on 12 December 2019, during which it would appear that W indicated agreement to receive distribution from the US Trusts for the purposes of her litigation funding on the same basis as ordered by Judge Melloy. H’s solicitors followed up and wrote on 13 December 2019 referring to W’s agreement on the litigation funding and enclosed a consent summons for W’s consideration[17]. 43.H’s wording of the relevant recitals in the consent summons were:
44.W responded on 17 December 2019 whilst confirming that her position was for her to receive her litigation funding on the same WP Basis in the Melloy Order, it was her position that it was not part of the Melloy Order that the litigation funding was also to be provided to H. W’s solicitors then set out in their letter as to W’s proposed wording of the basis for the settlement and withdrawal of her 2nd Summons, namely re-stating W’s Proposals as set out earlier, save to remove the references to W’s Injunction Application and the Disclosure Application as by then this Court had handed down its decisions on those applications. 45.There was no response from H to W’s solicitors letter of 17 December 2019 until 7 February 2020[18]. H’s solicitors essentially made two comments, namely:
46.In the above letter, H had further explained that as the parties are merely beneficiaries of the Family Trust, they cannot “cause” any distribution as this is within the discretion of the Trustee who is now joined as a party to these proceedings and that it was unreasonable for W to suggest this. 47.Although H is the “Investment Director’ of the Family Trust and that all investment matters in relation to the Family Trust are under the control of H, PBB, the Trustee has said in his affidavit filed on 21 August 2019, that his duty is primarily limited to administering the trust in Nevada and to making discretionary distributions of some or all of the trust property to or for the benefit of the beneficiaries which include H, W and their children[19]. Further PBB has stated that he had by the letter of 16 May 2018 reminded W of the right to request periodic distributions from the Family Trust. 48.Having considered this, I find H’s explanations reasonable and I accept his reasons why there should be the Joint Request rather than W’s proposed wording of H to “cause” any distribution. Further, I also find that H’s suggestion that the matter of disclosure to be de-linked with the distribution reasonable. 49.However, on 11 February 2020, W’s solicitors sent over two draft consent summonses, one of which was in relation to W’s 2nd Summons[20]. This draft consent summons essentially maintained the same wording as W’s Proposals. 50.On 13 February 2020, H’s solicitors replied , enclosing a draft letter for Joint Request to the Trustee of the Family Trust for a sum of HKD 1,507,280 to be distributed to each of them, totalling HKD 3,014,560 and enclosing a draft consent summons essentially maintaining H’s Proposals, adding a paragraph E that H undertakes to W and to the Court that he shall use his best endeavours in respect of the Joint Request[21]. The draft letter for Joint Request has been amended to reflect that the request is made on the same WP Basis in the Melloy Order. 51.Unfortunately, the matter was not resolved and H then requested for leave to file a supplemental affidavit to update his financial position. 52.Mr Marwah submitted that H has always accepted the Family Trust is a family asset of which H and W are equal beneficiaries, and that W’s own 1st s 17 Application is premised on the Family Trust being a family asset. As seen in the Joinder Decision, the assets of the Family Trust comprised of primarily the Promissory Note for USD10.5m issued by Bremen of which the maturity date is 31 December 2026 and Bremen has agreed to pay interest to the Family Trust on the unpaid principal at the rate of 5% compound annually. Even at simple interest at 5% per annum, USD 10.5m should produce around USD 525,000 per annum. Mr Marwah submitted that the assets of the Family Trust are estimated around HKD 98m and this is the most sensible source of funds available to the parties to finance their litigation and additionally, the costs of the Injunction Application have been ordered to be paid by H[22]. 53.Having considered the evidence before this Court, I accept Mr Marwah’s submission that the Family Trust is a source of funds available to W for litigation funding, and indeed it is also a source of funds available to H for his own litigation costs. There is no evidence as to whether W had made any request to the Trustee for a distribution prior to her issuing W’s 2nd Summons and without W have made an actual request, it is not known whether if such a request were made, whether such request would be met. 54.Further, although W indicated that she had agreed to there being a distribution upon the same WP Basis in the Melloy Order, W’s Proposals are however not exactly the same basis. As said earlier, I find H’s explanation as to why there should be the Joint Request for a distribution rather than for him to “cause” a distribution reasonable, and I also accept that his suggestion that the matter of disclosure should not be linked to the distribution a reasonable suggestion. 55.As to whether H should also be entitled to an equal amount of the distributions, it would appear that at the hearing before Judge Melloy, H had requested for a total distribution of USD 250.000 from the Trustee for the parties’ litigation funding, being 50% or USD 125,000 to each of them and obtained the same. H had already received his 50% share by the time of the hearing before Judge Melloy, and it was only W who refused to accept her 50% as she took the view that H was in breach of his 1st Undertaking in obtaining the distributions without her knowledge. When the matter went before Judge Melloy, the question was only whether W should accept her 50% for litigation funding, and as seen in the Melloy Judgment, Judge Melloy clearly took the view that W should and directed her to accept the same without prejudice to her rights and her position at trial. Judge Melloy had in further said that she had taken aboard the fact that both parties are beneficiaries of the Family Trust and that therefore, prima facie, they are both entitled to receive a distribution from it[23]. I do not see any reasons to hold a different view at this stage. 56.Although H has not himself made an application for his own litigation costs to be paid out of the assets of the US Trusts, the letters from H’s solicitors and the proposed letter to the Trustee clearly indicated that it is H’s position that he is unable to pay his legal costs without any distribution. In any event, the distribution to each of the parties is for their litigation funds, which should be paid to their respective solicitors to either apply towards those costs already billed but unpaid, or for them to hold on account for any future legal costs. Any sums of either party not applied for such purpose by his/her solicitors are in fact held on account for that party and forms part of that party’s assets, and this can be taken into account at the final ancillary relief. 57.It was submitted on behalf of W that it is wrong for H to now use his previous breach of undertaking as justification for him to receive funds for himself again and by riding on the W's present application. I do not find it necessary or relevant for W to keep repeating H’s previous breach of undertaking. Suffice to say, in the Injunction Decision, this Court had accepted what W said and found that there was non compliance by H of his 1st Undertaking in relation to the US Trusts and this resulted in this Court in granting injunctive relief against H as set out in that decision, including in particular, H is restrained in making any unilateral request for any distributions, withdrawals etc from the US Trusts. This only means that H cannot make any request for distributions or withdrawals unilaterally without W’s written consent or without leave from the Court, but it does not mean that H cannot make an application to the Court for leave to request for a distribution, whether it is with or without W’s consent. 58.W complained about H’s position being that if he is not allowed to receive funds from the US Trusts, neither can W, and that this points to H’s de facto control over the US Trusts. However, as I have said earlier, there has been no request made by W to the Trustee in any event and the Trustee’s position is not known. Further, whether H has de facto control over the US Trusts or not is not a matter this Court will decide at this stage, since H has made known his position regarding the Joint Request, and as I have said, any funds not used by H’s solicitors towards his legal costs will have to be accounted for eventually. 59.Having considered all the present evidence, in my view, there is really no reason as to why W, or H, could not have simply agreed to the Joint Request for distribution on the same WP Basis set out in the Melloy Order, and my order will reflect this. I now turn to consider the appropriate quantum. The parties’ respective Form H or estimates of costs 60.As set out earlier, W has changed in the amount sought by her for litigation funding, which in her 2nd Summons was stated to be HKD 1,507,270 and now in the Draft Order, it is HKD 3,230,000. 61.W’s 2nd Summons is supported by her 3rd affirmation filed on 12 August 2019. In paragraph 5 therefore, she had deposed to her having incurred over HKD 4m for her legal costs which were for different purposes set out therein and she had produced a schedule of her estimated legal costs of HKD 1,507,280 (“W’s 12.08.19 Schedule”)[24], which was later updated on 13 March (“W’s 13.03.19 Schedule”)[25]. I set out hereunder her costs, with all figures in HKD:
62.There were two Form H produced by W, one dated 13 September 2019[26] and one dated 13 March 2020[27], which show as follows:
63.As for H, his latest Form H (up to and including the hearing 24 September 2019) and dated 25 September 2019[28] shows his costs incurred up to then was HKD 4,226,075 , and that estimated costs after the hearing on 24 September 2019 up to and including the trial is another HKD 7,050,000, totalling HKD 11,276,075. There has been no further updated Form H filed by him. 64.As seen above, the parties’ costs incurred/billed to the present are over HKD 4m each. From now until the conclusion of trial, their estimates is at least another HKD 7m each. As ordered in the 24.09.19 Order, the parties really should attend mediation as soon as practicable. Yet, up to now, no mediation had taken place. 65.There appeared to have been an attempt for mediation, as seen in the parties’ respective correspondence. In October 2019, there was suggestion for the parties to attend a one day mediation with Mr David Pilbrow SC, and W had indicated that she was prepared to attend such mediation but subject to H’s provision of HKD 200,000 to cover her solicitors costs of the mediation[29]. In H’s solicitors’ letter of 16 October 2019, H replied to confirm his agreement to pay for Mr Pilbrow’s mediation fees in the first instance and that W’s half share should be deducted from her final settlement. H further suggested Mr Pilbrow’s available dates for W to confirm availability. 66.However, W’s solicitors replied that she would not agree to the condition and that the appropriate provision was for costs of mediation, including W’s own costs, be initially borne by H without prejudice to either part’s right to seek to argue, at the relevant time, who should ultimately bear the costs. 67.In response, H’s solicitors indicated that H did not have the funds to provide for W’s costs of mediation and that it was not appropriate for W to delay attending mediation when there was a clear and obvious solution that funding was to come from the Trusts. Then on 25 October 2019, W’s solicitors wrote indicating the dates that W and her Counsel and solicitors were available for mediation in December 2019 but again sought H’s agreement to pay, in the first instance, the fees of Mr Pilbrow SC and W’s legal costs of HKD 200,000. 68.By a reply the same day from H’s solicitors, it was pointed out to W that Mr Pilbrow would not be in Hong Kong in December 2019 and there was no reason why the mediation could not take place in October. On 21 November 2019, W’s solicitors wrote to say, amongst other things, W’s position was that the funding of Mr Pilbrow’s fees as well as W’s legal costs of HKD 200,000 should be paid by H. 69.It was submitted on behalf of W that when the 2nd Summons was first issued, there did not appear to be any major issues with W’s legal costs for the private FDR or mediation to be funded by H, and there was also no condition imposed by H that half of the mediator’s/FDR judge’s costs be deducted from W’s final settlement which H now seeks. 70.However, it was clear from H’s solicitors’ letters that H’s position was only that W’s half of the mediator’s fees was to come out of her settlement. So far as W’s legal costs of attending the mediation, H’s position was that he could not afford to pay the same. 71.Normally, a mediator’s fees are shared equally between the parties as the mediator is independent and jointly instructed by the parties to assist both of them in settling the matter. I therefore do not see H’s suggestion that he is to pay the entirety of the mediator’s fees first, with W’s half to come out or deducted out of her final award/ settlement unreasonable. As for W’s legal costs for attending mediation, I do not see why such costs cannot be agreed to be paid out of distributions from the Family Trust. I must say I find W’s attitude in this regard unnecessarily inflexible. 72.It is also not clear as to whether Mr Pilbrow is supposed to conduct a private FDR or a mediation (whether facilitative or evaluative). Pursuant to PD 15.11, the parties should have proceeded to fix a Financial Dispute Resolution hearing. I understand that parties’ initial attempts to fix a FDR hearing without there being a preliminarily issue hearing first was resisted by Judge Melloy[30]. The parties then seemed to have agreed to jointly appoint Mr Pilbrow to conduct a private FDR. That was initially in December 2017. Nothing had been done for almost 2½ years now. I am of the view that there should be a FDR hearing now and as the trial dates have been fixed in this Court’s diary and I will be the trial judge, I am of the view that the FDR hearing should take place as soon as practicable before another judge, and I propose to fix a short direction hearing for the purpose of giving directions for a FDR hearing. 73.As I have previously ordered, the parties should also have attended mediation. In line with what was said in LLC v LMWA and LELP [2019] HKCA 347, that the effectiveness of the FDR process could be enhanced if a FDR can be held with the assistance of a mediator[31]. It may well be that the parties wish to instruct Mr David Pilbrow to attend the FDR hearing as a mediator, to assist the parties and the FDR Judge, and this can be canvassed during the short direction hearing mentioned above. As I have indicated, for the mediator’s fees, I am of the view that they should be shared equally. 74.I am further of the view that any proposed quantum at this stage for litigation funding should be only up to and including the conclusion of the FDR hearing. 75.As seen earlier, even in W’s own last position on 11 February 2020 when she sent the two consent summonses, in the one in relation to litigation funding, the amount stated was HKD 1,507,280. 76.Further, as pointed out by Mr Marwah, this Court had ordered H to pay W’s costs of the Injunction Application which was summarily assessed to be a total of HKD 177,620[32], and this should be a source of further funds coming into the hands of W or her solicitors 77.At the present stage, even though the Trustee of the US Trusts has been joined as a party in these proceedings, realistically it does not appear that the Trustee of the US Trusts will be attending any trial in Hong Kong, whether it be the AR Trial or any preliminary issue trial on W’s 1st s 17 Application, since his position was that he did not wish to be a party in the present proceedings in any form and did not submit to the jurisdiction. In any event, he did not appear at the directions hearing on 12 December 2019. H’s father K has also been joined as 4th Respondent, but it is not clear whether he intends to attend the trial to give oral evidence. The Children’s position in relation to the W’s 1st s 17 Application is also not clear. Subject to further evidence and submissions from parties, I see no reason at this stage as to why W’s 1st s 17 Application cannot be fixed for trial at the same time as W’s AR Application and W’s 2nd s 17 Application. This also means if H’s Father, K, is to attend trial, he will only need to attend once rather than twice, if there are two trials. 78.So far as W’s intended application for third party discovery against H’s employer, in H’s solicitors’ letter dated 20 February 2020, a letter from H’s employer dated 14 February 2020 was attached which seems to have set out the shares awarded to H from 2012 to 2018 with the value as at date of award. I do not understand why this matter cannot be resolved sensibly between the parties. 79.Having considered all the above, I am of the view that up to and including the conclusion of the FDR stage including any mediator’s fees for attendance at the FDR hearing, an amount of HKD 1.5m each would be appropriate. Order 80.In light of all above said, the order I make will be subject to the following undertakings, agreement and/or acknowledgment by the parties :
81.The order I make is thus as follows:
82.As for costs, I am of the view that costs of this application should be reserved and be determination at the AR Trial.
Messrs Stevenson Wong & Co, for the petitioner Messrs Oldham Li & Nie, for the 1st respondent [1] Paras 9-25, CB1:13-19 [2] CB2:768-770 [3] CB1:1 [4] See para 5.5(3), CB1:155 [5] See CB1: 145, 148 [6] CB4:766 [7] See para 43, pg 12, W’s Skeleton Submissions [8] See the tax payable for 2015/16 [CB1:223], 2016/17 [CB1:238], 2017/18 [CB1:251], and 2018/19 [CB3:539]. [9] Now at HK$11,250 per month. [10] See paras 12, 13, CB3:691-692 [11] CB1:205 [12] At para 15, CB3: 693 [13] At para 4, CB2:472 [14] CB3:606 [15] CB2:276 [16] CB2 :277 [17] CB2:424-428 [18] CB2:444 [19] See para 9, CB3:492 [20] CB2:445-451 [21] CB2:452-459 [22] See para 13, pg 2, H’s Submissions [23] At para 16, Melloy Judgment, CB3: 693 [24] CB1:201-202 [25] CB4:772-773 [26] CB2:280-281 [27] CB4:752-753 [28] CB4 :750-751 [29] At CB2: 286 [30] See para 10, Melloy Judgment CB3:690 [31] At para 68, pg 26 [32] HKD 39,044 for the Pre-Transfer Costs, and HKD 138,576 for the Post-Transfer Costs |
Cases cited in this judgment
Further hearings and rulings under HCMC 1/2019