L, Ap v. P, Gg
Read the full judgment text of FCMC 9358/2018 on BabelCite. This Family Court judgment was delivered on 27 January 2021 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Maintenance Pending Suit – Litigation Funding – Costs – District Court – Parties separated with multiple divorce proceedings in HK, Philippines and Nevada – Informal financial agreement disputed – Court determines reasonable MPS amount of HK$25,000 per month – Litigation funding contribution of HK$95,000 awarded – Costs follow event with indemnity basis from 16 March 2020 due to husband's litigation conduct – Wife's financial need assessed against husband's income – Husband's non-compliance with court directions considered in costs order – Decree absolute pending in Hong Kong divorce proceedings – Nevada divorce set aside – Bigamy allegations regarding subsequent marriage – Parties met in 2000 and married in 2003 – Husband initiated divorce in 2009 and 2016 – Wife issued divorce in 2018 – Decree nisi granted in 2019 – Wife claims inability to work due to US visa – Husband earns over HK$250,000 per month – Court finds wife's expenses reasonable but trimmed – Husband offered HK$10,000 per month which was rejected – Court orders backdated maintenance from November 2019 – Costs summary assessment ordered – Petitioner to seek permission from Nevada court for documents regarding son B – Application originally listed for February 2020 but adjourned due to GAP – Court directed paper disposal with strict submission limits – Husband failed to comply with length and filing directions – Court issued memos warning of consequences – Matter relisted for hearing in November 2020 – Court disappointed with litigation conduct – Costs indemnity basis from date directions made absolute – Petitioner's counsel Ms Madeleine Booth – Respondent's counsel Ms Sasha Allison – Order nisi made 16 March 2020 – Order absolute made 16 March 2020 – Hearing 2 November 2020 – Maintenance backdated to 1 November 2019 – Lump sum HK$350,000 for backdated maintenance – FDR hearing 2 February 2021 – Litigation funding HK$95,000 to solicitors – Wife's expenses included rent and utilities – Husband's expenses included mortgage and tax – Court considered reality of situation – No findings of fact at this juncture – Broad-brush basis applied – Section 3 of Matrimonial Proceedings and Property Ordinance Cap 192 applied
Legal issues: Maintenance Pending Suit Amount · Litigation Funding Contribution · Costs and Litigation Conduct
Outcome: Maintenance pending suit granted; Litigation funding granted; Costs awarded to Petitioner
|
FCMC 9358 / 2018 [2021] HKFC 20 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 9358 OF 2018 ----------------------------
------------------------
------------------------------------------------ J U D G M E N T ------------------------------------------------ Introduction 1.This is an application by a Petitioner wife for maintenance pending suit/litigation funding pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192. 2.The wife’s summons is dated the 11 October 2019 and was originally listed for a substantive hearing on the 21 February 2020. Unfortunately, this hearing was caught by the “GAP” and as a result, on the 9 March 2020, the following memo was sent to both sides respective solicitors:
3.Neither side objected to these directions and an order absolute was made on the 16 March 2020. Unfortunately, however, the husband did not comply with these directions leading to a flurry of correspondence between the parties, which the court was also copied in on. Eventually the court wrote a subsequent Memo dated the 2 April 2020 in the following terms:
4.Notwithstanding this Memo, the husband still chose not to comply with the court’s clear directions with respect to the length of his written submissions. This led, in turn, to a further Memo from the court dated the 22 April 2020:
5.It is then against this back drop that the matter was eventually set down for hearing on the 2 November 2020. The court will come to the issue that arises out of this, namely the deliberate non-compliance with a court order by the husband and those who advise him at the end of this judgment. The litigation generally 6.There are several other more substantive issues that will need ultimately to be determined by the court, (if common sense does not intervene in the meantime) including inter alia, the disputed date of separation (the wife says 2011 and the husband says 2008), the approach to be taken to the numerous attempts to dissolve the marriage previously and the weight to be attached to an agreement allegedly entered into by the parties previously with respect to their finances. There are also claims that the wife entered into a subsequent marriage bigamously. It is trite but worth repeating for the record, that in such circumstances it is only possible for the court to approach this application on a very broad-brush basis. There can be no findings of fact at this juncture. The current issue 7.The current issue to be determined then is how much should the husband pay to the wife as maintenance pending suit, if anything at all? Further should the husband also pay a contribution towards the wife’s legal costs as litigation funding? Background 8.The parties, who are both Filipinos, met in Hong Kong in or around April 2000 and they married in a civil ceremony in Hong Kong on the XX March 2003. This was followed by a religious ceremony in Manila in September of the same year. The husband had recently started working as a trader for a well-known bank in Hong Kong and the wife worked as a general news editor for a TV news channel. 9.It does not appear to be disputed that difficulties arose in the marriage quite quickly and that the wife spent increasingly significant amounts of time away from Hong Kong to train inter alia, in the culinary arts and to take up other business opportunities overseas. Both parties give a very different account of the breakdown of their marriage and there is a great deal of “he said”, “she said” evidence in the papers. However, it is clear that the husband first initiated proceedings for divorce in Hong Kong in 2009. However, those proceedings were not served on the wife and he did not take the matter any further, attempting instead to obtain an annulment in the Philippines. The annulment proceedings were issued in 2012. Unfortunately, the husband was not successful in this respect either and he was not able to obtain an annulment. He subsequently issued a second set of divorce proceedings in Hong Kong in 2016 and he had the first set of proceedings dismissed in the process. The wife also issued her own set of divorce proceedings in Hong Kong in the same year. The parties then seemingly agreed to file for a joint divorce in Nevada, USA and a divorce was finally granted on the 4 August 2016. The parties then withdrew both sets of proceedings in Hong Kong by consent. Subsequently an informal agreement was reached between the parties with respect to finances dated October 2016. On the husband’s case he agreed to pay the wife US$200,000 in tranches. It is also his case that he only paid the sum of US$71,000. The wife for her part produced a letter which stated as follows:
It seems clear that this letter of intent was never fully complied with. 10.At some point it seems that the wife then married a Mr M and that they had a son together called B. B was born on the XX March 2015. On the XX January 2018 that marriage was subsequently annulled and it seems likely that the relationship was originally bigamous. In any event the wife says that she receives financial support for B only but she has not as yet provided any of the court orders or other documents relating to this subsequent relationship, for this court’s consideration. She says that Mr M does not consent to the same and that as in Hong Kong she is subject to an implied undertaking not to produce such documents, save with the leave of the court in Nevada. 11.On the 2 July 2018 the wife was granted an order to set aside the Nevada divorce, seemingly for want of jurisdiction. This application was not done with the consent of the husband, who was served but chose not to participate in the process. 12.On the 23 July 2018 the wife then issued the current proceedings for a divorce in Hong Kong. The husband defended those proceedings and a decree nisi was eventually granted on the 3 July 2019 based on the husband’s cross petition. A section 18 declaration was granted on the same date, but it seems that the decree absolute is still pending. It is then against this factual matrix that the court is asked to consider the issue of interim financial support. The law Maintenance pending suit 13.The law is well known and not in dispute. Section 3 of the Matrimonial Proceedings and Property Ordinance Cap192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. As I have said above, in this instance the court will approach the matter on a very broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. In so far as it is possible the court will also endeavour to try to look at the reality of the situation and will try not to simply accept the bare assertions made by one or other of the parties. How much maintenance should the husband pay to the wife as maintenance pending suit, if anything at all? 14.In essence the wife’s case is that the husband should pay her just under HK$30,000 per month. She says that she has fallen on hard times, that she cannot work because she is in the United States on an investment visa only, that leaving the US is not an option and that she has nowhere permanent to live. She says that Mr M only pays maintenance for the son and that any payments are now made directly to third parties. She claims to have no other means of support. 15.This is not accepted by the husband who points out that the parties always maintained separate finances during the marriage and that the wife also received additional financial support from her family. He also alleges (although these allegations are not proven) that the wife is still in a relationship with Mr M and that this application is simply a ruse. He does not accept that he should be financially responsible for the wife, especially given the length of separation and the fact that she has had a child with another man. He argues that as a matter of public policy this court should not entertain the wife’s application. For the avoidance of doubt, this is not accepted, especially in circumstances where the issue of finances was never properly considered by any of the three jurisdictions involved and even on the husband’s own case, he has not fully complied with the party’s original informal agreement on finances in any event. Although the wife could have issued a Part IIA application, that was clearly not the only option open to her. Both parties are probably also to blame for the debacle in Nevada, but, in any event, I further accept that the husband should provide the wife with some form of interim support. 16.At the hearing the husband offered the wife HK$10,000 per month for 6 months on a Charman like basis – i.e., on the premise that it should be taken into account when considering the issue of final ancillary relief. This was not accepted by the wife who sought approximately HK$30,000 per month (i.e. HK$29,400) as follows:
17.It is of note that many of the wife’s expenses were not substantiated in any way, with the husband complaining in particular about the proposed rental and utilities (the wife is allegedly living with her Aunt and Uncle at present) and medical and dental expenses at HK$3,500 per month. The husband was also concerned that he should not be contributing towards any of the costs for B. However, that said, none of these expenses were particularly high and although some could be pruned a little, they certainly fall into the more reasonable category. Ms Booth also accepted on behalf of the wife, that it would not be appropriate to claim any provision for holidays at the present time given the travel restrictions imposed by the Covid 19 pandemic. How much does the husband earn and what are his other financial resources? 18.In contrast it is not disputed that the husband has a good income of over HK$250,000 per month (inclusive of a bonus), which enables him to spend (in pre COVID times) approximately HK$40,000 per month on holidays and HK$30,000 per month on food. He also has some savings, a pension and other stocks and shares. He owns a property in Discovery Bay in his sole name and two other properties in the Philippines. He seemingly enjoys a very comfortable lifestyle. How much can the husband afford to pay? 19.I accept that the husband can afford to pay the wife what she seeks. It is simply that he does not consider that he should be obliged to pay given the circumstances of this particular case. Although I accept that the factual situation here is somewhat out of the ordinary, it is also clear, as indicated above, that the wife’s financial claim on divorce has never been properly considered. This is not an acceptable state of affairs. She is also still married to the husband. In such circumstances I shall order that the husband do pay the wife the sum of HK$25,000 per month as maintenance for herself, such sum to be backdated to the first day of the month following the date of the summons. In making this order I am also cognizant of the fact that the wife should not be put in a worse position caused by the litigation behaviour of the husband and his legal team, which effectively led to a significant delay in this application being determined. I have though trimmed the wife’s claim as I am not convinced that she is currently paying the sums that she seeks particularly for medical/dental/meals out of the home and holidays. I accept that she will need somewhere to live with B and that the husband should contribute towards her share of the rental and other related expenses for herself in that regard pending final determination of this matter. Litigation funding 20.The parties have agreed that the husband shall contribute the sum of HK$95,000 towards the wife’s litigation costs in order to enable her to be appropriately represented at the Financial Dispute Resolution (FDR) hearing on the 2 February 2021. This is accepted. In the event that the parties do not settle matters at the FDR hearing or shortly thereafter, it is also accepted that the issue of litigation funding will need to be further considered in the context of a trial. The sum of HK$95,000 shall be paid to the solicitors for the wife prior to the FDR hearing. Costs 21.In my Memo dated the 22 April 2020, I stated that the court might take the parties’ litigation conduct into account when determining the issue of costs. As indicated above the husband’s litigation behaviour led to this matter having to be dealt with in court as opposed to by way of a paper disposal. The court’s original directions were clear and in no way unusual. Had either side had any difficulty with them then they had the opportunity of raising this with the court, and the otherside, ahead of time and in any event before the 16 March 2020. They chose not to do so. The ensuing fuss was completely avoidable and unnecessary and simply led to an increase in costs and a delay in the matter being dealt with. Given the calibre of those involved, the court was extremely disappointed with the way in which the matter was dealt with. In any event the wife should not be penalised in any way for this. 22.From a more general perspective the wife has been successful in her application. The husband offered to pay her only HK$10,000 per month for a six-month period prior to the hearing and there was no provision for backdating. Although the court did not order that the husband pay the full amount of HK$30,000 per month claimed, it is clear that the wife has been more successful than the husband. Consequently, it follows that costs shall follow the event. I shall also order that the husband shall pay those costs on an indemnity basis with effect from the 16 March 2020, which is when the directions order was made absolute. He shall also pay the costs forthwith and on a summary assessment basis. Order 23.Thus, I shall make an order as follows:
IT IS FURTHER ORDERED BY CONSENT THAT
IT IS FURTHER DIRECTED THAT
Ms. Madeleine Booth instructed by Oldham, Li & Nie for the Petitioner Ms. Sasha Allison instructed by Payne Clermont Velasco for the Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||