Hak (also known as Habk) v. Bid
Read the full judgment text of FCMC 8732/2007 on BabelCite. This Family Court judgment was delivered on 5 February 2021 before HH Judge C.K. Chan.
Matrimonial Causes – Ancillary Relief – Implementation of Judgment – Division of Sale Proceeds – Equal Sharing – District Court – Petitioner HAK vs Respondent BID – Court determined how to divide net sale proceeds of HK$2,799,728.90 from Baan Yamu Property to achieve equal sharing of family pot based on AR Judgment – Petitioner received HK$3,330,846, Respondent received HK$5,398,503 – Proceeds divided to equalize total entitlement to HK$5,764,538.95 each – No order as to costs.
Legal issues: Division of Sale Proceeds
Outcome: Order made for division of sale proceeds
Cited by 1 case
|
FCMC 8732/2007 [2021] HKFC 29 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 8732 OF 2007 ------------------------
------------------------ Coram: HH Judge C.K. Chan in Chambers (not open to public) Mode of Hearing: By way of written submissions Date of Petitioner’s Written Submissions: 16 December 2020 Date of Respondent’s Written Submissions: 16 December 2020 Date of Petitioner’s Further Submissions: 28 December 2020 Date of Respondent’s Further Submissions: 28 December 2020 Date of Decision: 5 February 2021 ----------------------- D E C I S I O N (Sharing of Sale Proceeds) ------------------------ 1.This is a hearing of the Respondent (“R”)’s summons dated 21 March 2017, but restricted to paragraphs 2 and 7 therein only. In the said summons, R asked for:
2.In essence, what really needs this court’s determination is how to implement the judgment granted by HH Judge Bruno Chan dated 15 July 2009 as supplemented by His Honour’s further order dated 13 December 2010 (collectively the “AR Judgment”). As HH Judge Bruno Chan has already retired from the Judiciary, the case has now come before me for a determination. 3.R is acting in person and the Petitioner (“P”) is represented by Messrs John M Pickavant & Co. Brief Introduction 4.As can be told by the case number, this case has a very long history. In order to cut a very long story short, I will only recite the chronology that is directly relevant to the present application. 5.The petition for divorce was filed on 20 July 2007. A decree absolute of divorce was granted on 18 February 2010. 6.For the issue of ancillary relief, and after a full trial, HH Judge Bruno Chan granted the following orders which were in full and final settlement of the parties’ claims for ancillary relief against each other:
7.On 13 December 2010 (which order was later amended on 6 January 2011), presumably under the liberty to apply provision, the parties came before the learned Judge again and obtained a further order in respect of the Baan Yamu Property including the following terms:
8.It can be seen that the major direction under the 13 December 2010 Order (as amended on 6 January 2011) was to add in a reserved price of THB 18 million for the sale of the Baan Yamu Property. However, the imposition of the reserved price has posed a major difficulty in the full implementation of the AR Judgment in view of the undisputed crash of the Thai real estate market thereafter. It was obvious that the THB 18 million reserved price could never be realized under the current economic situation. 9.I was glad to note that both parties could finally come to agree on a more practical approach in selling the Baan Yamu Property at the current prevailing market price and the net proceeds of sale of HK$2,799,728.90 has now been paid into court. The remaining issue is how to divide up this sum of money between the parties by reference to the orders of Judge Bruno Chan in the AR Judgment, in particular, how to achieve a more or less equal division of the total family assets. 10.At the hearing on 2 December 2020, I direct the parties to lodge their written submissions on the division of the sale proceeds within 14 days. Upon reading their submissions, I direct that further submissions were to be made, after which I now proceed to make a determination on the division of the sale proceeds by reference to the AR Judgment. Discussion 11.It is to be noted that in the AR Judgment, after the determination on the size of the family pot at HK$12,701,626 (HK$11,772,799 + HK$928,827 = HK$12,701,626), the Hong Kong Property was given to P and the Canadian Property was given to R. It was further decided that the sale proceeds of the Baan Yamu Property were to be divided between the parties so as to achieve a more or less equal sharing of the family pot. 12.If one should read the AR Judgment itself, Judge Bruno Chan has already made a ruling on the assets given to or being retained by the respective party. I will repeat paragraphs 95-96 of the AR Judgment here for ease of reference:
13.In the AR Judgment, it was Judge Bruno Chan’s ruling that R has to account for the $928,827 that he has spent on his legal costs and such sum was to be added back to the family pot, thus making it a total sum of HK$12,701,626 (HK$11,772,799 + HK$928,827 = HK$12,701,626). It was submitted by P that there was a miscalculation in the adding up of the joint assets under paragraph 95 of the AR Judgment. But as pointed out by R, when both parties appealed against the AR Judgment, the Court of Appeal has refused to correct those figures in view of their relative minor nature. Therefore, I am not minded to re-calculate the size of the family pot by reference to this relatively small discrepancy. In the circumstances, when this court adjusts each party’s final entitlement to the reduced sale proceeds of the Baan Yamu Property, each party might not get an exact amount of 50% of the sum of $12,701,626. Instead, I will ensure that each party will get a more or less equal sum from the family pot at the end of the day. 14.In order to do this, it is important to ascertain how much money each party has already taken or retained from the family pot and by reference to those figures, the sharing of the sale proceeds of the Baan Yamu Property (at HK$2,799,728.90) could be made so that each party will be given more or less an equal share of the family pot. 15.Under the AR Judgment, P has already received or retained the following sums from the family pot (excluding the Baan Yamu Property):
16.On the other hand, R has received or retained the following assets from the family pot:
17.From the above calculation, I am satisfied that P has received or retained the sum of $3,330,846, whilst R has received or retained the sum of $5,398,503. In order to equalize their receipt from the family pot, I am satisfied that P should be given $2,433,692.95, whilst R should be given $366,035.95 from the sale proceeds. After such adjustment, P will get $5,764,538.95 ($3,330,846 + $2,433,692.95 = $5,764,538.95) and R will also get the same amount of $5,764,538.95 ($5,398,503 + $366,035.95 = $5,764,538.95). 18.In the parties’ written submissions, both of them have put forward other factors for the court’s considerations. For example, P has submitted that she should be reimbursed of certain expenses in furnishing the Baan Yamu Property. On the other hand, R has submitted that he should be given a share of the rental income of the Baan Yamu Property before the sale of the property. As I have indicated before the adjournment, I am not prepared to go into anything beyond Judge Bruno Chan’s AR Judgment and therefore, it will serve no useful purpose in discussing those submissions in this Decision. The only issue herein for my determination was how to divide up the sale proceeds by reference to Judge Bruno Chan ‘s rulings in the AR Judgment, and nothing more. Orders 19.Based on the above reasons, I hereby grant an order that the sum of $2,799,728.90 now retained in court shall be paid out as follows:
Costs 20.I do not see any clear winner in the application and an appropriate order is for no order as to costs, including all costs reserved. This will be in the form of an order nisi to be made absolute upon the expiry of 14 days from the handing down of this Decision.
Representation: Mr. J Pickavant of Messrs. John M Pickavant & Co, solicitors for the Petitioner The Respondent acting in person |
Other judgments that cite this case
Further hearings and rulings under FCMC 8732/2007