Ynna v. Hckw

FCMC 6626/2015

[2021] HKFC 78

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6626 OF 2015

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Coram: District Judge K K PANG in Chambers (Disposal on papers)

Date of Petitioner’s Submissions: 8 March 2021

Date of Respondent and Intervener’s Joint Submissions: 23 March 2021

Date of Judgment: 30 April 2021

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J U D G M E N T

(Application for Leave to Appeal)

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Background

1.The parties were married in 2001 in Hong Kong. The children of the family, two daughters, were born in 2002 and 2005 respectively. The Petitioner Wife (‘W’) petitioned for divorce on behaviour on 29 May 2015. By the order dated 10 November 2015, by consent it was ordered that the joint custody of the children of the family was granted to the parties with care and control to W. The Decree Nisi was granted on 22 February 2016. By the Order dated 17 May 2016, by consent it was ordered that the Respondent Husband (‘H’) do have defined access to the children of the family including day and staying access. Upon W, H and the Intervener’s consent joint application, an order in terms of a global settlement regarding the arrangements for finances and full and final settlement among all three parties was made by Her Honour Judge A.N. Tse Ching on 19 December 2019. The paragraph 5 of the order dated 19 December 2019 provides that the Intervener do pay a sum of HK$3,500,000 into a joint name account of the parties to be used solely for the maintenance for the children of the family … without prejudice to the parties arguing on the reasonableness of such periodical sum at the substantive hearing. The substantive hearing of children maintenance is fixed to take place on 26 and 27 May 2021.

2.The Recital N and the paragraph 1(2) of the order dated 19 December 2019 provides as follows:

N.   AND UPON the Petitioner and the Respondent agreeing that they shall jointly appoint a single-joint expert (‘SJE’) on valuation of properties within 14 days from the date of the Consent Summons for the purpose of evaluating the current open market value on present day basis of the South Horizons Property, the Lakeville 2104 Property and the Lakeville 702 Property (‘Total Valuation’), failing which the identity of SJE on valuation of properties shall be determined by the Court upon the joint application by the Petitioner and the Respondent; and the fees of the single-joint expert shall be shared by the Petitioner and the Respondent equally;

1.   The Petitioner shall receive the following 2 lump sums:-

(1) …

(2) A sum calculated by the following mathematical formula within 12 months of Decree Absolute or, if it is earlier, 14 days after receipt of the net proceeds of sale in the event that either Lakeville 2104 or Lakeville 702 is sold to a third-party buyer to be paid into the Petitioner’s Renminbi Mainland PRC bank account :-

(Total Valuation / 2) less value of the South Horizon Property

3.By the solicitors’ letter dated 3 February 2020, H made application for the Court’s directions on the appointment of SJE pursuant to the Recital N. By the Order of His Honour Judge S Lo dated 31 March 2020, it was ordered that: - (1) Cushman & Wakefield (‘C&W’) be appointed as SJE for the valuation of the South Horizon Property; (2) Shanghai Wan Long Real Estate Appraisal Co Ltd (‘SHWL’) be appointed SJE for the valuation of the Lakeville 2104 Property and the Lakeville 7902 Property. On 31 May 2020, SHWL issued two valuation reports. According to the SHWL reports, as of 26 April 2020 the Lakeville 2104 Property and the Lakeville 702 Property were valued at RMB ¥21,000,000 and RMB ¥24,900,000 respectively.

4.On 21 December 2020, W issued the summons for an order that: -

(1)   Leave to file and serve the expert report of C&W on the valuation of the Lakeville 2104 and the Lakeville 702 dated 26 November 2020;

(2)   Directions on the implementation of Recital N and/or Paragraph 1(2) of the consent order dated 19 December 2019, including but not limited to the determination of the Total Valuation as defined therein;

(3)   Further and/or other orders;

(4)   Costs be in the cause.

5.In W’s supporting affirmation filed on 29 December 2020, there was produced and marked exhibit ‘1’ copy of the valuation report issued by C&W dated 26 November 2020. As per the said C&W report, as of 26 April 2020 the Lakeville 2104 Property and the Lakeville 702 Property were valued at RMB ¥24,900,000 and RMB ¥25,800,000 respectively, and as of 11 November 2020 the Lakeville 2104 Property and the Lakeville 702 Property were valued at RMB ¥25,200,000 and RMB ¥26,100,000 respectively. As such, W averred that she was advised and verily believed that she had grounds to seek leave to adduce the CW report to challenge the expert evidence of the SHWL reports as follows: -

(1)   The SHWL reports undervalued the Lakeville 2104 and 702 Properties;

(2)   It would be fair to the parties to adopt a more recent report in determining the open market value of the said properties;

(3)   The SHWL reports adopted a mixed approach of comparison method with investment method. There was no explanation in the SHWL reports as to how such approach was taken and there were no comparable provided in the SHWL reports that were supposed to form the basis of the valuation under the comparison method;

(4)   It would be considered more of a norm for a comparison approach to be taken as C&W did in their report in the valuation of residential properties.

6.After having read the papers and heard counsel for the parties, I delivered an ex tempore decision that W’s summons dated 21 December 2020 be dismissed with costs at the end of the hearing on 1 March 2021. It was also expressly directed that the dismissal of the said summons was without prejudice to W to take out a fresh application, if so advised.

7.By the summons dated 8 March 2021, W applied for leave to appeal against the order dated 1 March 2021 and costs.

8.The draft Notice of Appeal contains 3 grounds of appeal: -

(1)   The Learned Judge erred in law by failing to give sufficient reasons for dismissing the summons dated 21 December 2020.

(2)   The Learned Judge erred in law by wrongly holding that the only remedy of a Family Court Litigant who was dissatisfied with a valuation report produced by a SJE was to set aside the appointment of that expert, with the correct legal position was that an application for further directions, such as the admission into evidence of an additional valuation report by a different expert, could be made pursuant to Order 38 r 4A, without setting aside the appointment of the original expert.

(3)   All in all, the Learned Judge plainly should have allowed the Summons to proceed to substantive arguments, instead of dismissing it at a 15 minutes call over.

9.W’s solicitors have applied for and been provided with the transcript of the hearing dated 1 March 2021 (‘the Transcript’). Although the Transcript is not included in the Hearing Bundle, I shall make reference to it in the discussion below.

10.About the grounds of appeal (1) and (3), I take notice of the followings: -

(a)  It was W’s solicitor’s estimate that the length of the hearing dated 1 March 2021 was 15 minutes;

(b)  At the hearing dated 1 March 2021, all parties were represented by counsel who have lodged with the court and served on the other parties full Submissions;

(c)  Counsel for W did not seek an adjournment. Actually, counsel for W said that she had no further submissions to make[1];

(drt)   The Transcript clearly shows that, during the hearing dated 1 March 2021, I have fully explained to counsel my observations and concerns about W’s application as well as the reasons of my decision, and furthermore I have adjourned the hearing to give counsel for W the time for reflections and taking further instructions before the conclusion of the hearing, and additionally counsel for W has had the opportunity of fully address the court on W’s case. Indeed, counsel for W repeatedly averred to the Court that she understood the Court’s question and views [2].

11.After having carefully considered the matters set out in the above, I am satisfied that the grounds of appeal (1) and (3) do not have a reasonable prospect of success.

12.As to ground of appeal (2), I must clarify that W’s averment that I hold that the only remedy of a Family Court litigant who was dissatisfied with a valuation report produced by a SJE was to set aside the appointment of that expert is a misstatement. The Transcript clearly shows that I do not hold such view. I also take notice that it is H and the Intervener’s submission that nowhere in the Recital N it is contemplated that any party including W will challenge the valuation or that the court will be stepping in to interfere with the valuation. I clarify that, as the Transcript shows, I am open to that matter.[3]

13.The reason for my decision dated 1 March 2021 can be seen in the Transcript[4]. I shall not regurgitate the same here. Simply put, and as set out in the paragraph 6 of counsel for H and counsel for the Intervener’s joint Submission, the court does not see why W should be allowed to adduce another expert valuation report while the court is not tasked with performing a valuation assessment and there is no upcoming trial. It is worthy of noting that notwithstanding that W averred in her supporting affirmation that she was advised and verily believed that she had grounds to challenge the expert evidence of the SHWL reports, she did not make an application for any substantive relief to challenge the expert evidence of the SHWL reports in the summons dated 21 December 2020.

14.After having carefully considered the matters set out in the above, I am satisfied that the ground of appeal (2) does not have a reasonable prospect of success.

15.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. There is no reasonable prospect of success in any of the Draft Grounds of Appeal. Nor is there any other reason in the interests of justice that the appeal should be heard. Accordingly, it is ordered that the summons dated 8 March 2021 for leave to appeal be dismissed.

16.W is unsuccessful in the present application. Currently, I see no reason why costs should not follow the event. It is ordered nisi that W shall pay H and the Intervener’s costs of the summons dated 8 March 2021 with certificate for counsel. The above costs order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order.

Kenneth K Y Lam and Melinda Chiang instructed by Wong & Co. for the Petitioner

Felix Li instructed by Ip & Heathfield for the Respondent

Jeremy S K Chan instructed by Fairbairn Catley Low & Kong for the Intervener