Cheung Yuk Lin v. Hui Shiu Wing
Read the full judgment text of CACV 38/1969 on BabelCite. This Court of Appeal judgment was delivered on 27 February 1970.
1. Throughout this judgment I shall refer to Hui Shiu Wing as "the husband" and Loretta Cheung as "the wife".
|
CACV000038/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO.38 of 1969 (On appeal from D.J. Action No. 52 of 1965) -----------------
----------------- Coram: Full Court Blair-Kerr, Briggs, JJ. and Mr. Commissioner Pickering. Date of Judgment: 27 February 1970 ----------------- JUDGMENT ----------------- Blair-Kerr, J : 1. Throughout this judgment I shall refer to Hui Shiu Wing as "the husband" and Loretta Cheung as "the wife". 2. The parties were married in October 1959. The husband was then aged 25 and the wife 22. They are Buddhists; and it is not in dispute that they are the children of wealthy parents who have been described as "entirely characteristic of the eminently respectable old-fashioned traditional Chinese both in outlook and religion". The fathers were friends; and both sets of parents have extensive interests in the hotel business in Kowloon. 3. Although the parties were Buddhists by religion, the marriage was the civil equivalent of a Christian marriage, and it took place in the Marriage Registry, Kowloon. It was duly consummated; but there are no children. It lasted 13 months. 4. On 31st August 1960, the wife left the husband because, according to her, his conduct was intolerable. She was persuaded to return to him a few weeks later; but the final parting took place on 30th November 1960, when she went to live with her parents. 5. She had interrupted her academic studies in order to ma ...(illegible) the husband; and sometime between 1961 and 1963 she resumed those studies. In 1963 she went to London where she eventually passed her "A" level examinations, and subsequently obtained a diploma in interior decoration after a 3-year course of study. It appears that she has lived for the greater part of the period 1963 to date in the London area. 6. In September 1965, the husband filed a petition in which he sought to divorce his wife on the ground that she had deserted him without cause. The petition was not served until 25th June 1966; and the wife's answer was filed in September 1966. In this document she denied that she had deserted her husband without cause. She alleged that he had ill-treated her during the marriage, and there were other allegations in regard to his association with other women. She sought an order for the dissolution of the marriage on the ground of the husband's cruelty to her. She further alleged constructive desertion on his part in that
7. Between November 1960 and January 1967, the husband did not maintain his wife, and it was her parents to whom she looked for support. On 5th January 1967, the Registrar made a consent order for alimony pendente litem in the sum of $3,200 per month; and the wife received monthly payments at this rate as from the date of service of the petition (25th June 1966) to the date of the decree absolute (11th October 1968). 8. In his Reply dated July 1967, the husband joined issue with the wife as regards her allegations of cruelty; and the petition and cross-petition came on for trial in August 1967. The learned trial judge made a decree nisi for the dissolution of the marriage on the ground of the wife's desertion without just cause; and her cross-petition was dismissed. Having so decided, the learned judge at p.15 of his judgment said this :-
9. The wife appealed to the Full Court, the members of which were the then Chief Justice, myself and Mills-Owens J.; and on 27th February 1968 the decision of the learned trial judge was reversed and a decree nisi was entered in favour of the wife against the husband. 10. Three separate judgments were delivered by the Full Court. It is not necessary in these proceedings to repeat in detail what was said on that occasion. Briefly, the Full Court took the view that in deciding the issues of cruelty and constructive desertion, insufficient weight had been given to the cumulative effect of the incidents referred to in the wife's cross-petition. Reference was made to Jamieson v. Jamieson(1) a decision of the House of Lords in which Lord Normand said:-
On a review of the evidence it appeared to me, rightly or wrongly, that certain findings of fact had been made without evidence; and again, rightly or wrongly, I would myself have been disposed to have given more weight to certain remarks made by the husband on a number of occasions such as: "money can buy love; money can buy flesh." It seemed to me that such remarks, taken in conjunction with the admitted evidence relating to the husband's association with other women, should have been given very considerable weight in deciding whether the wife had reasonable cause to conclude that her husband had lost all respect for her and that he was, at the very least, contemplating having sexual relations with other women. 11. On the whole of the evidence, and bearing in mind that as regards all the main incidents, I felt, rightly or wrongly, that the wife's version should have been accepted, in my view, the wife should have been granted a decree nisi on the ground that the husband had treated her with cruelty and that he had also been guilty of constructive desertion. 12. Mills-Owens J. began his judgment with these words :-
He too would have been disposed to give far more weight to that portion of the evidence relating to the husband's attitude towards, and association with, other women. He said:-
13. Mills-Owens J. later referred to the following passage from the judgment of Diplock L.J. in Thoday v. Thoday(2) :-
Mills-Owens J. then said:-
In other words, what the learned judge was saying was that although he agreed generally with the conclusions to which I had reached on the evidence, he had some misgivings as to whether the evidence relating to the injuries sustained by the wife at the hands of the husband was such as to warrant the court coming to the conclusion that her health had been seriously affected. The above passage from Thoday(2) was what influenced the learned judge. He was not doubting the fact that the husband's conduct amounted to serious ill-treatment of his wife and amounted "in itself to expulsive conduct". 14. The Chief Justice commenced his judgment with these words:-
And after referring to Watt v. Thomas(3) and other well-known cases which were very much in the minds of all members of the Court, he said:-
Later, with reference to the advantage which the judge had in that he could observe the demeanour of the parties, the Chief Justice said:-
Later the Chief Justice said:-
In other words, the Chief Justice said that he had some doubt as to whether the ill-treatment suffered by the wife at the hands of the husband was of such a nature as to seriously affect her health, and he was therefore not prepared to say that the matrimonial offence of cruelty, as defined by Diplock L.J. in Thoday(2), had been made out. There was no evidence that the husband ever said in effect to his wife: "Get out of this house at once"; and the Chief Justice had also some slight misgiving as to whether the ill-treatment suffered by the wife could amount to "expulsive conduct" (again adopting the phraseology of Diplock L.J. in Thoday(2)); but he eventually came to the conclusion that the ill-treatment of which the wife complained did satisfy this requirement; and accordingly he agreed that the wife should have her decree on the ground of constructive desertion. 15. In April 1968, the husband applied to the Full Court for leave to appeal to the Privy Council; and his application was refused. 16. He then presented a petition to the Privy Council for special leave to appeal from the Order of the Full Court. The judgment of the Privy Council is reported in (1969) A.C. p.131. Their Lordships upheld the decision of the Full Court in refusing to grant leave to appeal. Mr. Comyn, who appeared on behalf of the wife in these proceedings, appeared as leading counsel on behalf of the wife in the Privy Council proceedings. We were informed by him that the judgments of the Full Court delivered on 27th February, 1968 were fully considered by the Privy Council. The relevant passage from the report (p.135) reads:-
Special leave to appeal was accordingly refused. 17. In Hong Kong the legal basis for an award of maintenance is s.28(1) of the Matrimonial Causes Ordinance 1967, which reads:-
18. The wife applied for an order for maintenance in accordance with this provision; and on 23rd March, 1969, the Deputy Registrar ordered
19. Under r.61 of the Matrimonial Causes Rules the wife appealed, and the husband cross-appealed, to McMullin J. in Chambers against the order of the Deputy Registrar; and on 15th August, 1969, the learned judge dismissed both the appeal and the cross-appeal. 20. It is from the judgment of McMullin J. that the question of maintenance now comes before this Court on appeal by the wife. There is no cross-appeal by the husband, who, in March 1969, complied with the Deputy Registrar's order. 21. Section 28(1) of the Matrimonial Causes Ordinance 1967 is virtually a copy of s.16(1) of the Matrimonial Causes Act 1965; and in Davis v. Davis(4) Willmer L.J. said:-
Harman L.J. and Salmon L.J. agreed with this construction. I see no reason why the Hong Kong courts should construe s.28(1) of the Hong Kong Ordinance differently; and the Deputy Registrar correctly regarded the wife's fortune, the husband's ability, and the conduct of the parties as matters to be taken into consideration under paragraphs (b) and (c) in determining what he considered reasonable. 22. However, Mr. Comyn submits that the Deputy Registrar has misdirected himself as to the evidence relating to the conduct of the parties and has misapprehended the effect of the three Full Court judgments delivered on 27th February, 1968. 23. In his written decision, the Deputy Registrar admits that he read the trial judge's judgment as well as the judgments of the Full Court dated 27th February, 1968 and the further judgments of the Full Court delivered on 16th April, 1968 when leave to appeal to the Privy Council was refused. At page 3 of his judgment, the Deputy Registrar says:-
At page 7, the Deputy Registrar says:-
He then sets out the passage which I have already quoted in which the trial judge says that the husband "contributed in no small degree to the breakdown of this marriage", and the Deputy Registrar continues thus :-
He then states that Mills-Owens J. was "more cautious" than I was; and that the Chief Justice had "deeper reservations"; and he continues thus:-
The Deputy Registrar then said this (at page 9):-
Having decided what award should be made, the Deputy Registrar then said:-
24. In my view, the Deputy Registrar completely misapprehended the effect of the judgments delivered by the Full Court on 27th February 1968. Courts of appeal think long and carefully before upsetting findings of fact made by a judge at first instance who has had the advantage of seeing and hearing witnesses give their evidence. But having done so in this case, the three judges of the Full Court were unanimous in finding that the husband was entirely to blame for the breakdown of this marriage and that there was nothing in the evidence which warranted the conclusion that the wife was in any way to blame. As I have already said, what caused the Chief Justice and Mills-Owens J. to have doubts and reservations was the passage which I have quoted from the judgment of Diplock, L.J. in Thoday(2), that is to say whether the evidence warranted the conclusion that the husband's conduct (1) seriously affected her health and (2) could be said to amount to "expulsive conduct". Both the Chief Justice amd Mills-Owens J. were not prepared to say that the wife's health had been seriously affected. Mills-Owens J. had no doubt at all that the husband's conduct was "expulsive". At one stage, the Chief Justice had, as he said, some doubt about this; but, having made his own assessment of the evidence, he finally came to the conclusion that the husband's conduct "amounted in itself to expulsive conduct". There is nothing in his judgment to suggest that, on his own assessment of the evidence, there was not ample evidence to satisfy condition (1) in Diplock L.J.'s definition of cruelty; that is to say that the wife had established that she had just cause for separating because she had been seriously ill-treated by her husband. 25. When the learned trial judge wrote his judgment, he very properly recorded what he believed would be of assistance to the Registrar when the question of maintenance came up for consideration. But it appears that the Deputy Registrar failed to appreciate that, as a result of the judgments of the Full Court, the trial judge's judgment ceased to exist as a foundation judgment. There was no longer any question of "relative guilt". It was no longer a case of the husband "contributing in no small measure" to the break-up of the marriage. It was not a case of the three judges of the Full Court drawing different conclusions from undisputed primary facts found at first instance. Certain findings of primary fact were reversed on appeal. The three judges of the Full Court were unanimous that the husband's conduct had been the sole cause of the breakdown of the marriage; and in stating that he "absorbed" the doubts of the Chief Justice and Mills-Owens J., these doubts were doubts as to the legal effect of the husband's conduct and were not such as should have weighed with a Registrar in deciding on the nature and quantum of maintenance. 26. Speaking in general terms, apart from the evidence in any particular case, it is easy to say: "When a marriage breaks down there are usually faults on both sides." That may well be so in a great many cases. It is not so in all cases; and, while courts of law may undoubtedly use their general knowledge of human nature in deciding issues of fact, they have no right to act otherwise than upon evidence. 27. In this case the Full Court acquitted the wife of any blame; and the Deputy Registrar, with respect, appears to have failed to appreciate this fact. The fact that the marriage lasted only 13 months was not something which was to the wife's discredit. It was the husband who succeeded in breaking up the marriage in this short period. In using such phraseology as "the allegation of desertion which though it succeeded at first instance failed on appeal" and "the past conduct of the parties which is always at the back of my mind", it seems to me, with respect, that the Deputy Registrar was saying, in effect: "Looking at all the judgments, including the trial judge's judgment, there were faults on both sides." He was attributing some degree of blame to the wife; and, in my view, he was not entitled to do this. How far this influenced him in his final determination it is impossible to say; but it appears from his written reasons that it may well have influenced him to some extent. 28. On appeal from the Deputy Registrar's decision, counsel for the wife took this point. He submitted that the Deputy Registrar while professing to be bound by the decision of the Full Court nevertheless allowed himself to be influenced by the original decision of the trial judge and that he had "covertly, as it were, reintroduced for the purposes of his assessment the conclusions of the latter in relation to the relative blameworthiness of the parties." 29. The learned judge himself appears to have been under no misapprehension as to the effect of the Full Court judgments. But in dealing with counsel's submission, he refers only to point (3) on page 9 of the Deputy Registrar's decision and says :-
He goes on to say that the Deputy Registrar
And he continues thus :-
The learned judge goes on to say that the Deputy Registrar had before him the passage from the trial judge's decision in which the latter is at pains "to apportion some degree of blame to the conduct of the husband". He then refers to the Registrar's point (7) on page 10 of his decision in which he said that there was no suggestion of adultery by the wife either during or after marriage and he says that this point
30. With respect to the learned judge, in my view, it was not open to the Deputy Registrar to look at "sources of fact" which in any way conflicted with the final conclusions of the Full Court by which the Deputy Registrar was bound. "Relative blame" is an unfortunate phrase to use in relation to the judgments of the Full Court if the learned judge himself intended to say that the effect of these judgments was to throw the whole blame upon the husband. 31. If one looks at the Deputy Registrar's decision as a whole (not merely at point (3) on page 9) the phraseology used certainly suggests that in making his award he had at the back of his mind the idea that the wife was in some measure responsible for the break-up of the marriage. With respect to the learned judge, I am unable to agree that this was not a matter "seriously in derogation" of the Deputy Registrar's findings. 32. Mr. Comyn has criticised another portion of the judgment. The learned judge referred to the following passage from the judgment of Asquith L.J. in Bellenden (formerly Satterthwaite)v. Satterthwaite(5) :-
The learned judge then goes on to say this:-
33. Mr. Comyn submits that this is a clear misdirection of himself by the learned judge which vitiates his whole decision and leaves the matter at large so far as this court is concerned. Counsel refers to the following passage from the notes to o.58 r.1 at p.759 of the Supreme Court Practice 1970:-
34. Mr. Oswald Cheung, on behalf of the husband, cites Stibbe v. Stibbe(7) and Sansom v. Sansom(8) for the proposition that the onus was upon the wife to show that the Deputy Registrar was wrong. 35. That may well be so. But in Bellenden(5) the Court of Appeal was considering an appeal from a judge in Chambers; and it was in relation to that appeal that Asquith L.J. expressed his view at p.345. There is nothing in Bellenden(5) which conflicts with the judgment of Lord Atkin in Evans v. Bartlam(6). At p.478, Lord Atkin said:-
36. In my view, Mr. Comyn's submission is well-founded. The learned judge did far more than give the Deputy Registrar's decision the weight it deserved. He erroneously regarded himself as a Court of Appeal in the fullest sense, with the result that he felt unable to exercise his own discretion as if the matter had come before him for the first time. In these circumstances, I agree with counsel that the question of maintenance is now at large so far as this Court is concerned. 37. There is no dispute as to the wife's "fortune". She owns $30,000 worth of jewellery and 8 shares of $10,000 each in a family company - Carlton Hotel, Ltd. As regards the husband's ability to pay, under rule 48 of the Matrimonial Causes Rules, he was obliged to file an affidavit setting out "full particulars of his property and income". In fact he filed a number of affidavits. The first one is dated 26th October 1966 and was filed in relation to the application for ancillary relief filed by the wife on 14th September 1966, i.e. prior to the divorce proceedings. It was the affidavit which the Registrar had before him when he made his consent order for alimony pendente litem on 5th January 1967. I have no hesitation in saying that this document presents a very inadequate picture of the husband's true financial worth. Having given various details in relation to the Park and Shamrock Hotels and the land on which these hotels are built, he alleges that his only source of income is $3,500 as manager of the Shamrock Hotel. He says:-
He says nothing about the rents from the land on which the hotels are built; and his allegation that he has little knowledge of the business of the two hotels contrasts strangely with the impression which he gave to the learned trial judge of being a man with wide business interests which necessitated his dining out frequently till late in the evening with male business associates. Although, in view of the Full Court's decision, the Deputy Registrar was not entitled to have regard to the learned trial judge's judgment in deciding whether the wife had been in any way to blame for the break-up of the marriage, I see no reason why this Court should not take note of what the husband actually said on oath before the learned judge in relation to his numerous alleged business dinners. On paper he has large business interests; and the Court is entitled to say whether it thinks he has been entirely frank in his affidavits of means. On the general question of his credibility, according to the record of the evidence, on 16th September 1961 the wife caught him in a car late at night in the company of another woman. He suddenly drove off with the result that the wife was dragged along by the moving vehicle for some distance before falling on the ground and sustaining injuries as a result. The husband, when subsequently prosecuted for assault occasioning actual bodily harm, admitted in the witness box that he had told the police an untrue story as to the whole incident. 38. A much clearer picture of his financial position is revealed by his later affidavits; and, in my view, there is substance in Mr. Comyn's submission that the husband, to say the least of it, has been reticent in complying with rule 48 of the Matrimonial Causes Rules. 39. The position appears to be this: The husband's father bought the land upon which the Park and Shamrock Hotels were built; and the husband and his brother are the registered owners of this land as tenants in common. Two limited companies were then formed to develop the sites; and the two hotels were built. The land on which Park Hotel is built is leased to the company for a ten-year term commencing from 1st March 1966, the net rental payable being $120,000 per month. The land on which the Shamrock Hotel stands has been leased to the company for an eight-year term commencing 1st August 1964, the rental being $30,000 per month. 40. The husband owns 48% of the paid-up capital of $5,000,000 in Park Hotel Ltd. His brother owns 51%; and his father owns 1%. The husband owns 48% of the paid-up capital of $2,000,000 in Shamrock Co. Ltd., his brother owns 48% and his father owns 4%. 41. The annual rent of the land on which the Shamrock Hotel is built is $360,000; and the annual rent of the land upon which Park Hotel is built is $1,440,000, that is to say the present rents total $1,800,000. The husband is entitled to a half share of these rents viz. $900,000 per annum. 42. In his affidavit of 7th March 1969, the husband states that in order to build Park Hotel, he and his brother obtained a building loan of $2 1/2 million from the Hang Seng Bank and that the land and buildings are also mortgaged to the bank to enable the Hotel to have general overdraft facilities. 43. In January 1966 the current account at the Hang Seng Bank (which is in the name of the husband and his brother) was overdrawn to the extent of just over $8 1/2 million. On 29th October 1968, this overdraft had been reduced to just over $4 1/2 million. The dividends which the directors of Park Hotel Ltd. declared for the four years 1964 - 1967 were:-
It would appear that the greater portion of this sum has been utilised in reducing the overdraft. According to the husband, the building mortgage is still outstanding; and, as regards the Shamrock Hotel, he says that for the four years 1964 - 1967 there was a net loss of $86,000. But the Balance Sheet for the year 1967 shows a net profit of $35,000; and although the accounts for 1968 and 1969 were not before the Court, there is no suggestion that Shamrock is losing money today. 44. The Deputy Registrar was given no accounts for the year 1968 in respect of Park Hotel. Mr. Oswald Cheung told this Court that when the matter came before the Deputy Registrar in March 1969, the 1968 accounts had not been audited. Be that as it may, we still have no accounts for the years 1968 or 1969, audited or otherwise. The last accounts for Park Hotel Ltd. were in respect of the year 1967. That was the year in which there were serious riots in Hong Kong. To what extent tourism was affected by these riots we cannot say; but, at any rate, it has not been suggested that 1967 was a particularly good year for the hotel business. 45. That being so, it is interesting to examine the 1967 accounts for Park Hotel Ltd. The gross trading profit of the hotel for that year was $8,160,000; and the net profit as disclosed in the profit and loss account was $2,572,000. According to the Appropriation Account, the balance brought forward from the previous year (1966) was $1,982,000; and, after declaring a dividend of $1,900,000 (most of which, according to the husband, was used in repaying the Hang Seng Bank overdraft) and making provision for Corporation Profits Tax for the year 1967/68, $2,448,000 of "unappropriated profits" were carried forward to 1968, and this is shown on the liabilities side of the balance sheet for 1967 in addition to $500,000 "general reserve". It would be interesting to know what the balance sheets for 1968 and 1969 would disclose as regards "unappropriated profits". 46. On the assets side of the balance sheet for 1967, there are certain details of an account called "loans to directors". This account, presumably, is what Mr. Comyn was referring to when he spoke of the directors drawings account. The figures read as follows:-
47. The husband refers to this in para.17 of his affidavit of the 9th March 1969. He says:-
In paragraphs 12 and 13 of this affidavit he says that Park Hotel Ltd. and Shamrock Co. Ltd. are private companies and
In para. 14, he says:-
And in para. 18, he says:-
48. In my view, it is unnecessary to deal with the other items of property mentioned by the husband in his affidavits. Clearly, he would like this Court to think that although, on paper, he is a very wealthy person, he is in fact little more than a remittance man who has no business acumen, who lives almost entirely on his salary of $3,500 as manager of the Shamrock Hotel, and that he has no real control over his wealth. The Deputy Registrar said:-
which he has in fact done. On appeal, the learned judge said:-
49. Before this Court, Mr. Oswald Cheung very frankly stated on a number of occasions that his client was a wealthy young man. He is wealthy now; and he is going to be a greal deal wealthier in two or three years time when the bank loans are paid off. It is notorious in Hong Kong that the object of property developers is to get their capital outlay back in about five years; and I see nothing from the accounts of these two hotels which persuades me that, in a comparatively short time, the husband and his brother are going to be wealthier than they are at present. The husband's ability to pay any reasonable sum which this Court may award is unquestionable. 50. But, Mr. Cheung submits that the husband's wealth - capital and income, present and future - is quite irrelevant to the question now before this Court. He says that the Deputy Registrar and the learned judge have already given the wife more than she is entitled to. He emphasizes that, before and during the marriage, the parties, and the parents of the parties, did not live a life of luxury but lived simply in accordance with their traditional Chinese Buddhist upbringing; that the wife is entitled now to no more than what is necessary to purchase a two or three-room flat in Kowloon and perhaps set her up in a small interior decorating business and to provide her with a reasonable amount of maintenance each month. Counsel has no quarrel with the Deputy Registrar's award; and he relies upon the following passage from the judgment of Willmer L.J. in Davis(4):-
51. In N. v. N.(9) Lord Merrivale P. said:-
52. Willmer L.J., in commenting on this passage in Brett v. Brett(10) said:-
53. And at p.1014 of the report of Brett(10) Phillimore L.J. is reported as having said:-
54. Mr. Comyn submits that the day-to-day "standard of living" (in the sense of the size of the house one occupies, the amount and quality of food one eats, the size of car one uses to transport one from place to place, the amount of clothing and jewellery one chooses to wear, and so on) is only one of many factors in a marriage or, for that matter, in life; that capital reserves have an important place in the way of life of every person brought up in a sphere in which it is possible to save and have capital behind one; that, in marrying the husband, the wife in this case had the financial support of a wealthy man; that his wealth was always there as a cushion in times of stress or difficulty; that, by the husband's conduct, she has been deprived of all that, and is nothing but a divorced Buddhist woman of 33 with little or no capital behind her and very poor prospects of ever re-marrying. 55. Mr. Comyn submits that, in his affidavits, the husband is virtually pointing a pistol at the Courts; that in stating: "I am a minority shareholder, I am only a tenant in common with my brother, my father and brother will do nothing to help me," he is virtually saying to his wife: "Look out! Take what I give you, or you may get nothing." Counsel submits that in the years to come there would be endless difficulties in regard to enforcing monthly payments of maintenance; and he submits very forcibly that this Court should take steps now to end this marriage once and for all by awarding one lump sum payment; and the figure which he suggests is $1,250,000. He points out that this would not involve the husband in any division of capital; that it is only a little more than this young man's present income for one year; that it is less than one year's declared dividend of Park Hotel. Putting it another way, counsel says, it is merely one-third of the directors' drawings in the Park Hotel. 56. For myself, I am quite unable to accept the narrow interpretation which Mr. Oswald Cheung asks this Court to place upon the word "maintenance". As Scott L.J. said in Acworth v. Acworth(11):-
Of course, Acworth(11) came before the courts over 20 years before the enactment of the Matrimonial Causes Act 1965 which introduced the conception of a lump sum payment to the wife in addition to periodic payments to her by way of maintenance. The effect of Mr. Cheung's submissions is that a court should not ordinarily make a lump sum award unless there is some evidence that the husband is transferring his assets abroad or otherwise putting them beyond his control, or the court considers that a lump sum is necessary to enable the wife to purchase and furnish a house for herself or to set herself up in business. I find myself quite unable to accept that submission. The language of the section is clear. Under paragraph (b) the court may make an order requiring the husband to pay to the wife during their joint lives such periodic sums for her maintenance as it thinks reasonable, having regard to her fortune, the husband's ability to pay, and the conduct of the parties. Under paragraph (c), the court may order the husband to pay to his wife such lump sum as the court thinks reasonable; and again, in fixing what it thinks is reasonable, the court is enjoined to have regard to the wife's fortune, the husband's ability to pay, and the conduct of the parties. Paragraph (a) deals with the question of security. The court may make orders under "one or more" of these three paragraphs. The section does not say that orders for lump sum payments should only be made with specific items of capital expenditure in view. It does not say that any once-and-for-all lump sum which the court may decide to award should bear any particular relation to the present value of a series of future payments by way of maintenance with or without something to cover any necessary capital expenditure on the part of the wife; and, as Lord Justice Winn said in Curtis v. Curtis(12) the glossary and literature relating to s.16(1) of the English Act so far
All the section says is that whatever order or orders the court decides to make should be reasonable; and that means reasonable having regard to the whole of the circumstances known to the court. Otherwise the court's discretion has not been fettered in any way by anything said by the legislature; and I think it would be highly undesirable for this Court to begin to lay down rules regarding the manner in which a judge or registrar should exercise his discretion under this section. I am quite unimpressed by the argument that, during the short period the English and Hongkong provisions have been in operation, there is no reported case of one single lump sum award under para. (c). If this happens to be the first case, then so be it. The court's duty is to give effect to the intention of the legislature and to apply the law faithfully to the facts of each case which comes before it. 57. It is, of course, agreed on all sides that the old one-third rule has been rather discredited, perhaps more especially where the husband is a very wealthy man. It is also agreed that the object of s.28(1) is not to punish the husband or to compensate the wife for the loss of a happy married life. It may be dangerous for the court to equate the position of a divorced wife with that of a widow in a fatal accident case. As Mr. Comyn said, such an analogy can be pushed too far. Nevertheless, if the court decides to make an order for the payment of one single once-and-for-all sum, it is entitled to take some cognisance of the age of the parties and the period during which the husband might be expected to have to maintain his wife. 58. The husband is now 35 and the wife is 33. According to the Hongkong Life Tables prepared by the Commissioner for Census and Statistics, the husband's life expectancy is 36 years and the wife's is 40 years. Presumably, these figures take account of the chances of premature death as a result of illness and accident; and the court is entitled to assume that, in the ordinary way, the parties might live for another 35 years, and that, if the wife remained unmarried, the husband would therefore be required by law to maintain the wife during this period. 59. I do not see any point in analysing the awards in Brett(10), Davis(4) or Curtis(12). As Mr. Comyn said, these cases are merely illustrations of what certain courts in England did when applying comparable legislation in a country where conditions are very different from those prevailing in Hongkong. 60. In Hongkong our legislation tends to follow that of England; but a Hongkong court must never forget that in applying such legislation to the facts of any particular case, it must keep its feet firmly on the ground and have regard to local conditions. Anyone who has lived here for 25 years will be familiar with the doubts and uncertainties which have afflicted the minds of many of our wealthier citizens on a number of occasions. Take 1949 for example; and more recently 1967. What proportion of the wealthy citizens of Hongkong have residences and investments abroad as a "cushion" against the possibility of political change in this part of the world? 61. At the other end of the social scale, we have all attended wedding parties given by parents of apparently very moderate means - parties which must have cost many thousands of dollars. Where did the money come from to pay for such entertainment? By saving, of course. But those same humble folks could not possibly have incurred such expenditure if they had also maintained what Westerners would describe as a high day-to-day "standard of living". 62. In posing these two questions, I do so merely by way of example to illustrate how dangerous it is to equate the day-to-day "standard of living" of Chinese living in Hongkong with the day-to-day "standard of living" of people living in England. It would be quite unrealistic to shut one's eyes to the fact that making "arrangements for the future" may, as regards a section of the more affluent members of this community, plays a considerably greater part in planning their way of life than it would in the case of persons living under very different circumstances in England. In my view there is a great deal of force in Mr. Comyn's submission that the wife's loss of the husband's capital reserves as a cushion against times of stress and difficulty, is not something which can be ignored. 63. The danger of lump sum payments in lieu of periodic payments by way of maintenance, is that if the wife dies or remarries, the husband is unable to seek any subsequent variation of the court's order. On the other hand, in this case the sum which the wife is asking for would not involve any apportionment of the husband's fortune. It is little more than his present income for one year, and considerably less than what, it may be assumed, his income for one year will be after the mortgages are paid off in a few year's time. There is also much to be said in favour of lump sum awards in lieu of periodic payments, especially in a territory like Hongkong where circumstances can change fundamentally and with remarkable rapidity. As Mr. Comyn said, if these two hotels were sold tomorrow for $60,000,000, the wife could not come back to court and submit that the lump sum award made to her by this Court was much too low. 64. There is, of course, no evidence at all that the husband is in fact contemplating removing his assets from the jurisdiction; and, although in his affidavits he is, (in my view untruthfully), trying to suggest that he is little more than a remittance man, he complied with the orders made in the court below, and I doubt whether his affidavits warrant the view that he is pointing a pistol at the court or at the wife. 65. On the other hand, when a marriage breaks up it is seldom that there is no bitterness; and nothing has happened in this case so far which persuades me that the husband and wife parted in circumstances of harmony, or anything resembling it. 66. This is the first case of its kind which has come before the Hongkong courts; but it may well be that in future lump sum payments under the new legislation will be frequently ordered. Hongkong is a unique territory from several points of view. 67. On balance, I have come to the conclusion that a single lump sum award under para. (c) would be the best course to pursue in this case, and that, on the information before this Court, an award of $1,250,000 would be reasonable. 68. It is interesting to compare this figure with what, it may be presumed, the Deputy Registrar would have awarded, if, instead of ordering a lump sum and annual maintenance, he had ordered a once-and-for-all lump sum payment now. If we assume that the husband would be obliged to maintain his wife for 36 years, and the annual sum of $60,000 were to be capitalized on an 8% basis (which I think is reasonable, despite the unusual rates of interest prevailing in Hongkong at the moment), the multiplier, or number of years' purchase, is 11.717. $60,000 x 11.717 = $703,020; and if this is added to the $250,000 lump sum actually awarded by the Deputy Registrar, presumably he would have ordered a lump sum payment of $953,020. 69. My brother Mr. Justice Briggs has kindly shown me the judgment which he is about to deliver. $7,000 per month is equivalent to $84,000 per year; and if this sum is capitalized on the basis of 8% over a period of 36 years (that is to say 11.717 years' purchase) the result is $984,228. If this sum is added to the lump sum award of $250,000 awarded by the Registrar, we get $1,234,228. 70. As I have said, I think that this Court should order the husband to pay $1,250,000 to the wife now.
Representation: J.T. Comyn, Q.C., and A. Zimmern instructed by Messrs. F. Zimmern & Co. for the Appellant. Oswald Cheung, Q.C., and J. Swaine instructed by Messrs. Samuel Soo & Co. for the Respondent. (1) (1952) A.C. p.535. (2) (1964) P. at p.199 (3) (1947) A.C. p.484 (4) (1967) 1 A.E.R. at p.125. (5) (1948) 1 A.E.R. at p.345 (6) (1937) A.C. p.473 at p.478. (7) (1931) P. p.105 (8) (1966) P. p.52 (5) (1948) 1 A.E.R. p.343 (6) (1937) A.C. p.473 (4) (1967) 1 A.E.R. at p.126. (9) (1928) 44 T.L.R. 324, 328; (1928) A.E.R. p.466. (10) (1969) 1 A.E.R. 1007 at 1012/3 and at 1014. (11) (1943) P. 21 at 22. (12) (1969) 1 W.L.R. 422 at 429. (10) (1969) 1 A.E.R.1007; (4) (1967) 1 A.E.R.123; (12) (1969) 1 W.L.R.422. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 38 OF 1969 -----------------
Coram: Full Court, Blair-Kerr, Briggs, JJ. and Mr. Commissioner Pickering. Date of Judgment: 27 February 1970 ----------------- JUDGMENT ----------------- Briggs, J: 71. This is a claim for maintenance made by the wife against her husband whom she had divorced. It comes to this court on appeal from a judge in chambers. 72. The parties were married in 1959. The wife left the husband thirteen months after the date of the marriage because she found his conduct intolerable. 73. In 1965 the husband filed a petition of divorce on the grounds of desertion. In her answer which was filed in 1966 the wife denied that she had deserted her husband and she petitioned for a divorce from him on the ground of cruelty and constructive desertion. 74. In 1967 the husband was granted a decree and the cross-petition of the wife was dismissed. This decision was reversed by the Full Court in 1968 and the wife was granted a decree on the ground of constructive desertion. The President of the Full Court was of the opinion that the allegations of cruelty had been made out and would have granted the wife a decree on that issue also. Later in the same year the Full Court refused an application by the husband for leave to appeal to the Privy Council and his petition to the Privy Council for special leave to appeal from that decision of the Full Court was also refused. 75. It is quite clear from the judgments of the Full Court that this is a case where the break up of the marriage was solely due to the conduct of the husband. 76. As I have said the wife left the husband in 1960. She was supported by her family until 1967 when by consent, an order was made for alimony pendente lite at the rate of $3,200 per month. 77. The wife brought a claim for maintenance before the Registrar who awarded her a lump sum of $250,000 and in addition $60,000 per annum payable monthly during their joint lives or until further order. He also ordered that two-thirds of the $60,000 per annum to be secured. The sum of $250,000 has been paid. 78. The wife appealed from this order to a judge in chambers unsuccessfully and she now appeals to this court. 79. When reaching his decision the Registrar considered the judgment of the trial judge in which he granted a divorce to the husband on the ground of the desertion of the wife. Though I do not think it was wrong of him to do this it does appear from his decision that he attributed a certain amount of blame to the wife for the break up of the marriage, which is directly contrary to what was found to be the true position by the Full Court. 80. Both the husband and the wife appealed against the award of the Registrar to a judge in chambers. It appears from his judgment that though he would have liked to make a different award from the Registrar's finding, the judge felt that he was sitting as a Court of Appeal in the true sense and that he could not exercise his own discretion. In that I think he was wrong for the reasons stated in Evans v. Bartlam(1). This court is entitled therefore to consider the correct amount of maintenance to award in this case as though the matter had come before us for the first time. 81. The principles on which the court acts when making a maintenance order are contained in section 28 of the Matrimonial Causes Ordinance. The side note of that section reads "Maintenance orders" and subsection (1) is in the following words:-
82. Both the wife and the husband come from well to do families. They are Buddhists and live in what may be called the traditional Chinese manner. The families were friends and the couple had known each other for several years before they married. 83. The husband's family though very rich, lived in an unostentatious manner as did the family of the wife. The evidence shows that the husband's family lived in the old-fashioned traditional Chinese manner. There was no honeymoon and after the marriage the married couple lived in the same house as the parents of the husband. And next door there lived the brother of the husband and his wife. From the evidence I get the impression that the wife did not so much marry a rich man as marry into a rich family. 84. Later the couple moved to a flat of their own. Again it was a modest flat, there is no question of the standard of living being ostentatious or vulgarly wealthy. 85. But there is of course no doubt that the husband is and was at the time of the marriage a very rich man. His fortune consists of large, though minority, holdings in two private companies owned by his family and a half share in two very valuable leaseholds. He appears to have been legally entitled to a large income but did not draw it. It was, by family arrangement, used to pay off a mortgage on one of the properties owned by one of the family businesses. 86. The husband had a salary as business manager of one of the family hotels, which was $3,500 per month and he had no car of his own. However it is clear that the married couple were living at a rate higher than his salary. This is shown by admissions made by the husband in his evidence as to the conduct of his life and he also obtained loans from one of the family businesses. It is impossible to be more exact as the husband has not seen fit properly to disclose to the court what the exact rate of expenditure of the married couple was. 87. At no time has the wife complained that the husband had set up a standard of living which caused her discomfort or disquiet. She did not complain of this in her answer; and from her evidence it would seem that the wife was quite content with the standard chosen by the husband. There is no evidence that she requested any amount from the husband after she left him until by consent an order was made for alimony pendente lite in the modest sum of $3,200 per month. 88. The wife's fortune consists of $30,000 worth of jewellery and certain shares in a private company owned by her family. 89. In these circumstances the wife asks for a lump sum payment of $1,250,000. 90. Counsel for the wife suggested that the matter should be looked at from the point of view of compensating the wife for the loss of a wealthy husband. And that the modest standard of living enjoyed by the couple during marriage was not a main consideration when fixing the amount of maintenance. 91. Further he said that this was a case which it was eminently suitable to award a single lump sum. The husband is immensely rich but the husband's family appeared to control the fortune of the husband in fact and were hostile to the wife. The husband had the ability to pay the lump sum suggested. The break up of the marriage was the fault of the husband and his conduct during these proceedings has been obstructive in that he has been reticent concerning the details of his income. 92. For the husband it was argued that all that the wife was entitled to is maintenance, and that can only mean that she is entitled to be maintained at the same standard of living she had enjoyed and that she might reasonably expect in the future. That what the wife has lost in this case is a home and a relatively modest standard of living. When married she might reasonably expect never to have to worry about money again. She has lost this and any award must reflect this loss. 93. Various authorities were referred to by counsel during the hearing of this appeal. They have been dealt with in the judgment of the learned President and I do not think that any useful purpose would be served in my quoting from them again except to say this. 94. The principle is contained in the words of Lord Merrivale P. in N. v. N.(2) which have already been quoted. 95. He said:-
96. In Brett v. Brett(3), Willmer L.J. after quoting the above passage added:-
97. The cases quoted to us for the most part concerned parties who were very rich and who were at the time of the marriage living at a very high standard of living. 98. I do not understand the authorities to mean that a very rich man must always be presumed to be living in a very lavish style or at an enormously high standard. Nor that the whole fortune of a rich husband is to be the sole determining factor when fixing the rate of maintenance. Each case must be decided on its own facts. It is, I suggest, the husband who decides the standard at which the parties shall live provided that the standard is not unreasonable. Particularly is this so where the fortune is the husband's and not the wife's. A rich husband cannot of course be heard to argue that he lives and likes to live as a pauper. He has an obligation to maintain his wife suitably to his and her condition in life. The correct standard is that which is reasonable in all the circumstances. In deciding on this the fortune of the husband is only one factor albeit a most important factor to be considered. There must also be considered what would be a suitable standard of maintenance for a person occupying the position of the parties. To decide this, matters such as the upbringing of the parties, their religion and their traditions are important. Can it be said from the facts in this case that the husband was not maintaining his wife at a proper standard? She made no complaint and the facts bear out that that was so. The cases show that so far as is possible the wife should not be left in a position worse off than she was before the break up of the marriage. The amount to award is in my opinion one which reflects what I have said above and in addition takes account of the fact that the wife had during her marriage no financial anxiety whatsoever, excluding wars and disasters of such a nature. 99. The wife is not entitled to a division of the fortune of the husband. And the old "one-third rule" is no longer blindly applied. 100. In her evidence the wife said that at first she loved her husband and the court has found that his conduct was so intolerable that she had to leave him after only 15 months of married life. But it is not correct in my view to take into account the loss of a happy married life: nor should the court seek to impose a punishment for the matrimonial offence, when deciding on the amount of the award. 101. I now come to the question whether the maintenance should be by way of a single lump sum or not. 102. There is no doubt of the husband's ability to pay. There appears to be no reported case where the court has awarded a single lump sum by way of maintenance. Doubtless there have been many settlements of claims for maintenance by payment of a lump sum. And there is no doubt that the court has the power to make such an award. 103. In Brett v. Brett(3) Phillimore L.J. suggested that a suitable case for making such an award might be where a wealthy husband was living on capital and was transferring his assets or part of his assets out of the court's jurisdiction. 104. In that case the court awarded a substantial lump sum as well as an annual sum. In Davis v. Davis(4) a capital sum was awarded as well as maintenance on an annual basis. It appears from the report that the capital sum was for the purpose of the wife purchasing and furnishing a home suitable to the way of life to which she had become accustomed during the marriage. 105. Similarly in the present case the Registrar awarded a lump sum of $250,000 in order to provide the wife with a home suitable to her condition in life. 106. The objection to a lump sum payment is that it is once and for all. If the wife dies or remarries or comes into a fortune after the payment the husband cannot recover any portion of it. However if a wife is awarded maintenance on an annual basis both parties can apply to the court for an order varying the amount when the circumstances of either party change. 107. Counsel for the wife relied on the fact that there was enmity between the parties. I confess I can find no evidence of this unless it can be said to lie in the fact that the husband pursued his remedies as far as the Privy Council. It is true that the husband was obstructive in supplying details of his fortune during the hearing of this case. It was suggested that a single lump sum should be awarded because the wife would have difficulty in enforcing any monthly or annual award because of the hostility of the husband and his family to the wife. No reason was given for this. And there is no evidence at all that it is so. The sum of $250,000 awarded by the Registrar was promptly paid. And the wife has recourse to the court if there should be any default in payment. 108. Counsel for the wife also made the point that an annual sum attracts income tax in the U.K., while a lump sum does not. When making his request for a lump sum of $1,250,000 I am not certain whether the incidence of tax in the U.K. had been taken into consideration. This is not material. There is no evidence that the wife intends to live in the U.K. She has been living there for some four years and she has received training there in the art of interior decoration - but as I see it, this case must be decided on the basis that she and her husband are domiciled in Hong Kong: the husband's fortune is in Hong Kong and that she lives here. In Hong Kong no tax is payable on an annual sum of maintenance nor on a lump sum grant. 109. The Ordinance lays it down that any sum granted must be reasonable. This must mean reasonable so far as both parties are concerned. I do not think that the grant of a single lump sum would be reasonable to the husband in this case. 110. The sum suggested is very large and to capitalise the annual sum which I am about to suggest would also be very large. The wife may die and she may remarry. Rather ungallantly her counsel said that he did not think she had much prospect of remarriage. But she is only 33. She comes from a well-to-do family. She is sophisticated, bilingual and holds a diploma in interior decoration. And she is without children. 111. If the circumstances change either through political or personal reasons the husband would not be able to ask the court to vary any award made for a lump sum. Finally there is no evidence that the husband is living on his capital, or transferring his assets out of the jurisdiction. 112. On the other hand a lump sum to provide the wife with a home and a suitable annual payment are to my mind reasonable. 113. In Hong Kong circumstances change sometimes very rapidly. Political and economic factors constantly result in very large fluctuations in the value of property, the state of trade and the level of rents. Particularly may this be said to be so, as far as the hotel business is concerned, which is the foundation of the fortune of the husband's family. It is reasonable that the parties should be able either to mitigate or to take advantage of any such change of circumstances. After all if the marriage had not broken up any such change of circumstances would have affected the standard of living of both parties. 114. There is an additional benefit to the wife in awarding an annual sum. Section 38 of the Matrimonial Causes Ordinance provides that a divorced wife may obtain an order for maintenance from the estate of her deceased husband. Any order for maintenance made in his life time must be taken into consideration before such an order is made. Obviously a wife would be in a better position if she were in receipt of an annual payment than if she had received a once and for all lump sum. 115. In all the circumstances I do not consider that this is an appropriate case for the award of a single lump sum. In my view the correct award is a capital sum to provide the wife with a home and an annual award of maintenance. 116. Though the award of the Registrar was based, perhaps, on his finding that the wife's conduct contributed to the break up of the marriage I have no quarrel with the sum of $250,000 which he awarded as a capital sum and which has already been paid. In my view it is on the facts a reasonable and proper sum for the provision of a suitable flat or home. 117. However I think that the award of $5,000 per month is on the low side. I think that this should be increased to $7,000 per month. In my view this should be secured as to two-thirds. I would vary the order of the judge in chambers accordingly.
(1) 1937 A.C. 473. (2) 1928 A.E.R. 466 (3) 1969 1 W.L.R. 487. (4) 1967 p.185 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 38 OF 1969 -----------------
----------------- Coram: Full Court (Blair-Kerr & Briggs, JJ. and Mr. Commissioner Pickering) Date of Judgment: 27 February 1970 ----------------- JUDGMENT ----------------- Mr. Comissioner Pickering: 118. I agree with the learned President that the repeated references to the conduct of the parties in the written decision of the Deputy Registrar appear to impute some degree of blame to the Appellant and to attach to the award made an element of discounting which, on the basis of the sole decree eventually granted and to the judgments of the Full Court leading to that decree, is unwarranted. In dealing with the cross-appeals against the award the learned judge did not appear to regard himself as entitled to deal with the matter as though it came before him for the first time but, acting strictly as a Court of Appeal, felt no compulsion to interfere with an award which was clearly tinged with unfounded considerations. With the preliminary observation that I am in entire agreement that the award made should have been higher, I turn to the question of whether or not it should take the form of a single lump-sum payment and if so in what amount. 119. Whilst I do not find the arguments advanced before us for or against the award of a single lump sum to be persuasive in either direction, I have come to the conclusion that in the particular circumstances of this case the balance is in favour of such a mode of award. 120. On the clear wording of section 28(1) of the Matrimonial Causes Ordinance 1967 a lump sum may be awarded either in lieu of or in addition to maintenance and this was the conclusion reached by the Court of Appeal in Davis v. Davis(1) when construing s.16(1) of the Matrimonial Causes Act 1965. It is the contention of the Appellant that the lump sum awarded was not "reasonable" having regard to her fortune, to the conduct of the parties and to the undoubted ability of the Respondent to pay. There is force in Mr. Comyn's argument that the Appellant has been deprived of the security which the Respondent's great wealth formerly conferred upon her. Whilst it would be impossible without making an award which was actually punitive - a course which would be quite improper and certainly not "reasonable" - to restore to her that degree of financial security which was formerly hers, the award made by the Deputy Registrar and upheld by the learned judge does not appear to me to go far enough having regard to the three factors to which attention is enjoined by the section. The Appellant's own fortune is modest and her conduct blameless. The wealth of the Respondent is immense and his conduct blameworthy. It is relevant that a pervading feature of the Appellant's life as the wife of the Respondent was a total immunity from any sort of financial care and that that immunity sprang from the Respondent's wealth which the Appellant no longer has behind her. 121. It was Mr. Cheung's contention that the award of a single lump sum would be unjust to the Respondent since if the Appellant were to die or remarry in the fairly near future the Respondent would be unable, despite the fact that the necessity for maintenance of the Appellant by him had disappeared, to recover any portion of the sum awarded and paid. This appears to me to be a double - edged argument in that in the event of either of the eventualities contemplated the Respondent would be in a far better ultimate financial position then if he and the Appellant survived for another forty years, as is quite possible, and the Appellant remained unmarried. The alleged injustice said to be inherent in a lump sum award does not commend itself to me as a good reason for not making such an award. 122. On the other hand for my part I am unimpressed by the allegations of antagonism and bitterness between the parties and the doubts expressed by Mr. Comyn as to the lifelihood of periodical payments of maintenance proceeding smoothly. The Respondent's behaviour in regard to the awards so far made in this case belie these doubts for he has complied with those awards. 123. Again, in my view the acknowledged fiscal reason behind this aspect of the appeal, namely the desire of the Appellant to avoid tax upon periodical payments, is equally lacking in cogence. The Appellant lives in England where such payments, unlike similar payments in Hong Kong or lump sum payments in either territory, do attract tax. Her desire for some financial arrangement between the Respondent and herself which would leave her free of the obligation to tax is both legitimable and understandable but is not in my view a valid reason for the award by this Court of a single lump sum payment. It is on the contrary a circumstance to which this Court should not have regard since under section 8 of the Matrimonial Causes Ordinance the issues are to be determined in accordance with the law which would be applicable thereto if both parties were domiciled in Hong Kong at the time of the proceedings. Once that hypothesis is applied the question of the incidence of taxation upon periodical payments dissolves. 124. I find myself unconvinced by the arguments advanced either for or against the award of a single lump sum. In my view the matter is wholly at large and there is no very persuasive reason for either adopting or rejecting that mode of award. That being so and having regard to the figure which I would propose for such an award there may just be something to be said for adopting the once-and-for-all method. This is because the figure I have in mind would, assuming a continuance of present rates of interest in England, leave the Appellant better off from month to month than she would be as a result of any periodical payments I would be disposed to order. As to whether the Respondent will be better or worse off as a result of the award I propose, remains shrouded in the future. He will fare worse if the Appellant dies or remarries in the fairly near future but if she enjoys a reasonably long life without remarrying the Respondent will stand to gain considerably. 125. One other consideration which seems to me to tilt the scales gently in favour of a single lump sum award is that the Appellant desires such an award and there can be no question of the Respondent's ability to pay it. Having regard to "the conduct of the parties" and there being no persuasive argument against a once-for-all payment, it is to her wishes rather than to his that effect should be given. 126. As to the amount of a lump-sum award, I would respectfully adopt the dicta, already cited by the learned President, of Lord Merrivale P. in N. v. N(1) Willmer L.J. in Brett v. Brett(2) and Phillimore L.J. in the same case(3). I concur in the figure of $1,250,000 and would allow the appeal and award that amount subject to deduction of the sums already paid under the order of the Deputy Registrar.
(1) (1928) A.E.R. 466 (2) (1969) 1 A.E.R. 1007 (3) (1969) 1 W.L.R. p.493 |