Npyj v. Smrc
Read the full judgment text of FCMC 9098/2018 on BabelCite. This Family Court judgment was delivered on 21 December 2020 before Her Honour Judge Grace Chan.
Matrimonial Causes – Leave to Appeal – Ancillary Relief – AR Notice – District Court Ordinance s.63A(2) – Ladd v Marshall – Land Registration Ordinance s.19 – Whether husband satisfied reasonable prospect of success test – Whether 80th affidavit admissible – Whether court erred in applying KGL v CKY test – Whether non-disclosure affects outcome – Whether extraneous matters considered – Whether financial position analysed – Leave to appeal refused – Husband to bear costs – 80th affidavit returned
Legal issues: Leave to adduce new evidence · Ground 1: Legal test for access to assets · Ground 2: Non-disclosure · Ground 3: Extraneous matters · Grounds 4 & 5: Financial position
Outcome: Leave to appeal refused; Husband's summons dismissed.
Cites 5 cases
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FCMC 9098 / 2018 [2020] HKFC 257 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 9098 OF 2018 ----------------------------
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----------------------- JUDGMENT ----------------------- Grounds of appeal 1.On 4 November 2020, I handed down my judgment (“Judgment”) refusing the respondent’s (“husband”) application to vacate a notice of intention to proceed with an application for ancillary relief dated 9 November 2017 (“AR Notice”), commonly known as Form A or Form 25 in the Family Court, registered by the petitioner (“wife”) against the matrimonial home and carparks of the same development, all registered in the sole name of the husband. 2.By his summons filed on 17 November 2020, the husband seeks leave to appeal against the judgment by relying on the grounds set out in his draft notice of appeal. However, the wife has not filed any written submission in compliance with The New Arrangement for Application for Leave to Appeal in the Family Court issued by on 13 August 2018 (“New Arrangement on Leave to Appeal”). Hence, in this judgment, I can consider the husband’s written submission only. 3.In my view, his grounds of appeal can be summarized as follows:
4.Further, he seeks to leave to file his 80th affidavit (dated 17 November 2020) together with his application for leave to appeal. 5.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard. 6.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011. Background 7.I have set out the background of the parties and their dispute on their children (2 daughters of about 12 years old and 9 years old) at §§17-23 of the Judgment. Their respective case on whether to vacate the AR Notice can be found at §§24-25 of the Judgment. Unless stated the otherwise, I would adopt herein the abbreviations used in the Judgment. 8.More details of the background of this case and it litigation history can also be seen in my earlier judgment dated 9 December 2020 on leave to appeal sought by the husband in relation to two case management orders made by me on 28 October 2020 and 4 November 2020 respectively. In that judgment, I refused to grant leave to appeal. Leave to adduce new evidence 9.For the purpose of his leave to appeal application, the husband already filed his 79th affidavit. He now seeks leave to rely on an additional affidavit, namely his 80th affidavit, in support of his leave to appeal application. He is adamant in saying that the wife’s lack of disclosure of her financial position is “a highly material and relevant factor” in deciding if the registration of the AR Notice should be vacated. Exhibited to this 80th affidavit are (collectively “Exhibits”):
10.He further deposes in the 80th affidavit that he has not received any payment of his fees from the Director of Legal Aid. 11.First of all, it needs to be reiterated that under the New Arrangement on Leave to Appeal, documents/written submission to be filed by either party are restricted to those stated at §4 and §7 therein, and that no further documents are allowed to be filed without prior leave of the court:
12.As such, the 80th affidavit of the husband has not yet been admitted as formally filed. 13.Further, introduction to new evidence has to satisfy all the 3 conditions set out in Ladd v Marshall [1954] 1 WLR 1489 at 1491. I have listed out the said 3 conditions in the Judgment at §14 therein. 14.It has to be repeated that the husband relied on his 27th affidavit (filed on 20 September 2019) and his 67th affidavit (filed on 7 October 2020) in support of his application to vacate the registration of the AR Notice against the matrimonial home and carparks. The Exhibits were already in his hands when his 27th and/or his 67th affidavits were prepared and filed. The alleged fact that he has not received any payment of fees from the Director of Legal Aid is proffered by him belatedly and without explanation as to why such alleged information could not have been provided in his previous affidavits. 15.Plainly, he has failed to satisfy the 1st condition in Ladd v Marshall (supra), namely the evidence could not have been obtained with reasonable diligence for use at the hearing below. For this reason alone, it is sufficient to refuse his application for adducing his 80th affidavit. 16.However, I would venture to add that even if his 80th affidavit and the Exhibits were to be considered in this application for leave to appeal, it would not probably have an important influence on the result of the Judgment, due to the various matters considered by me in the Judgment, such as the special status of the matrimonial home in any marriage, as explained by our Court of Appeal in the recent case of WHWV v WECH, CAMP 28/2020 & CACV 547/2020, [2020] HKCA 839, date of judgement 23 October 2020.[1] 17.Due to the matters aforesaid, I fail to see any basis for allowing the husband to file and/or rely on his 80th affidavit, which should thus be returned to him in accordance with the New Arrangement on Leave to Appeal, with no order as to costs. 18.I shall now go into the grounds of appeal set out more particularly at §3 of this judgment. Ground 1 19.The husband submits that I erred in law in dismissing his summons and “failed to properly apply the legal test in KGL v CKY and Another [2002] 2 HKLRD 301 per Woo JA citing with approval the judgment of Holman J in A v A.” 20.To begin with, he has not provided with the court a copy of these two authorities, so that the court has to locate the authorities herself. 21.KGL v CKY and Another (supra) is not a case on vacating the registration of AR Notice, nor is the case of A v A (Maintenance Pending Suit; Provision for Legal Fees) [2001] 1 WLR 605. Both cases are the authorities on maintenance pending suit, and more particularly if interim payment can cover monthly litigation funding to a spouse for a determinable duration. I reiterate what I have said in the Judgment that the binding authority is this case is the judgment of the Court of Appeal in WHWV v WECH (supra). 22.I fail to see how I erred in law as submitted by the husband. Ground 2 23.At §6 to 15 of the Judgment, I have set out the background and reasons why the 68th affidavit of the husband (filed without leave) has not satisfied the 1st condition of Ladd v Marshall (supra). I concluded that he could have easily included such information/documents in his 68th affidavit in his earlier affidavits but failed to do so. Further, he has not proffered any explanation as to why he could not have so included. 24.Pausing here, it should be noted that discovery in matrimonial proceedings during first appointment hearings are governed by PD 15.11, in that parties should prepare their draft questionnaire(s) for the perusal and endorsement of the court. Regrettably, the court records show that:
25.When the ancillary relief matters of this case is still at such preliminary stage due to the reasons mentioned in the preceding paragraph, it would be quite impossible for the court to make a final determination that there is non-disclosure on the part of either party. 26.In any event, I have mentioned in §15 of the Judgment that even if the alleged non-disclosure on the part of the wife was considered, it would not probably have an important influence on the result of this application, due to reasons set out in the latter part of the Judgment. 27.I see no reasonable prospect of success in relation to this ground. Ground 3 28.On this ground, the husband says that I erred by taking into account extraneous matters which have no bearing on his summons and in doing so seeks to “cherry pick” from all relevant facts. He is not satisfied of the observation made by me that in some of his applications, he has taken up an “insistent but unreasonable stance”, such as his application for recusal of Deputy Judge Chow. 29.The observation was made in the context of considering if the litigation is prosecuted bona fide, which is one of the situations under section 19 of the Land Registration Ordinance pursuant to which the husband’s summons was taken out. And I am convicted to say that the court is entitled to make such remarks on the recusal application that it is unreasonable for the husband to pursue it when the deputy judge has already been deployed out of the Family Court. His then submission that he would only withdraw the recusal application on the understanding between the bench and him that the deputy judge would never handle this case again is extraordinary. The relevant analysis can be found at §30 to 36 of the Judgment. 30.I do not see any reasonable prospect of success relating to Ground 3. Grounds 4 & 5 31.I shall deal with ground 4 and ground 5 together, because they concern the financial position of the husband and/or the wife. The husband argues that I failed to properly and correctly analyse his financial position, such as the rental income of various properties received by him is insufficient to cover the expenses of those properties, and that the 2 London properties have been historically making loss. 32.The parties’ alleged assets and/or liabilities as reflected in their respective Form E filed in January 2018 (which are the only Form E available to the court at the time of the Judgment) are set out in the table at §42 of the Judgment. It is pertinent to stress that the value of the 2 London properties given in the said table, which are in positive equity, was provided by the husband himself. According to the said table, he holds about 63% of the total net assets of the parties, which he has not challenged in this application for leave to appeal. 33.Preliminary analysis of his alleged financial situation and/or alleged financial difficulties can be found at §38 to 43 of the Judgment, which I shall not repeat here. 34.Further, I shall reiterate that the wife has registered an AR Notice against the matrimonial home and Carparks Nos 14 and 88 only. She says in the AR Notice that she would seek a property settlement or transfer order for herself and on behalf of the children of the family. She has not registered an AR Notice against the rest of other properties that are solely owned by the husband. This would mean that if the husband so desires and upon notice and/or consent of the wife, he is free to raise a loan with his other solely-owned properties. 35.His belated reference in his 80th affidavit that he has not received any payment of his fees from the Director of Legal Aid, or his belated reference to the movement records of the wife will not be considered by me, as I have already refused to give him leave to file the same. 36.I do not agree that this proposed ground will have any reasonable prospect of success in the intended appeal. Conclusion on the leave to appeal 37.Due to the matters aforesaid, I conclude that there is no reasonable prospect of success in any of the grounds of the intended appeal of the husband. 38.The husband has not proven that there is some other reason in the interests of justice that the appeal should be heard. 39.Hence, I refuse to grant leave to appeal to the husband. Costs should follow the event, and thus he shall bear the costs of and occasioned by the wife in this application. Conclusion 40.Due to the matters set out above, I make the following order:
The petitioner (wife) present and acting in person The respondent (husband) present and acting in person [1] See §54-55 of the Judgment. | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 9098/2018