Ynna v. Hckw

FCMC 6626/2015

[2021] HKFC 124

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

Date of Hearing:  26 & 27 May 2021, 15 June 2021

Date of Respondent’s Closing Submission:  3 June 2021

Date of Petitioner’s Closing Submission: 10 June 2021

Date of Judgment: 2 July 2021

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J U D G M E N T

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Background

1.The parties were married in 2001 in Hong Kong. The children of the family (the ‘Children’) 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 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 including day and staying access. Upon W, H and the Intervener’s 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 HHJ 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 (the ‘Intervener’s Funds’) into a joint name account of the parties to be used solely for the maintenance for the Children … without prejudice to the parties arguing on the reasonableness of such periodical sum.

2.By another Order of HHJ A N Tse Ching dated 19 December 2019, it was ordered that: -

(1)  W do file and serve her evidence in support of quantum of Children maintenance on or before 6 February 2020;

(2)  H do file and serve his opposing affirmation on or before 5 March 2020;

(3)  W’s reply on or before 19 March 2020.

3.By the Order of HHJ C K Chan dated 11 September 2020, it was ordered that unless W do file and serve her supporting affirmation within 21 days of the order, W’s claim for children maintenance be dismissed. W filed her affirmation dated 5 October 2020. By the Order of HHJ C K Chan dated 16 November 2020, it was ordered that trial of W’s application for children maintenance be fixed on 26 and 27 January 2021, and H do file and serve the opposing affirmation within 14 days and W do file and serve the replying affirmation within 14 days thereafter. H filed the opposing affirmation dated 20 November 2020 and W filed the replying affirmation dated 3 December 2020. By the Order of HHJ K K Pang dated 24 December 2020, it was ordered that the parties do file and serve updated Form E on or before 7 January 2021. The parties filed their updated Form E both dated 7 January 2021.

4.Despite that it was ordered that W do file and serve her evidence in support of the quantum of Children maintenance on or before 6 February 2020, W did not make any claim for backdating when she presented her case in the supporting affirmation dated 5 October 2020. In the concluding paragraph of W’s replying affirmation dated 3 December 2020, however, W prayed for an order for periodical maintenance for the benefit of the older daughter at the rate of HK$41,378.5 per month and the younger daughter at the rate of HK$47,603.5 per month from February 2017 onwards.

5.In W’s Opening Submission dated 14 January 2021, Ms Chiang counsel for W submits that, since W has been paying the Children’s expenses out of her own savings and personal loans from relatives and friends, she is entitled to make the claim for backdating of the Children’s periodical payments from February 2017. It is noted that Ms Chiang did not quantify W’s claim for backdating in the Opening Submission. She simply sought an order for a monthly sum as decided by the court to be paid directly by H or to allow W to withdraw such sum from the Intervener’s Funds or money to be injected into the Intervener’s Funds.

6.In the Opening Submission, Ms Chiang further submits W’s case can be seen in W’s updated Form E dated 7 January 2021 where W averred that: -

(1)  For the period from the parties’ separation in 2015 to February 2017, H paid the general household expenses and the Children expenses as he did during the marriage;

(2)  Since H moved out of the matrimonial home in February 2017, he had continued the payment for: - (a) food expenses fixed at HK$7,200 per month; (b) the salary of the domestic helper; and (c) school fees, but refused to pay other general household expenses or children expenses;

(3)  W started to receive HK$35,000 each month under the order dated 19 December 2019. After that, H stopped the payment of the said food expenses of HK$7,200 per month from August 2020.

7.In his Opening Submission, Mr Li contests that it will be unfair to H, if W is allowed to make a new claim for backdating by way of the replying affirmation dated 3 December 2020. Additionally, Mr Li rejects W’s claim that there was shortfall and at the same time contends that if there was any shortfall in the Children maintenance, it would have already been fully settled by the order dated 19 December 2019. Mr Li underlines that W receives totally around HK$40M of assets under the order dated 19 December 2019. It is said that, according to the said consent order, she keeps the former matrimonial home valued at around HK$15M and receives two lump sums of HK$1.5M and HK$5M respectively and a further sum, estimated at around HK$18M, upon the sale of some landed properties in Shanghai.

8.The trial fixed on 26 and 27 January 2021 was vacated due to the covid 19 pandemic and was re-fixed to take place on 26 and 27 May 2021. On 26 May 2021, the parties reached an out of court settlement regarding the quantum of the Children’s monthly maintenance. It was agreed that: -

(1)  The monthly sum payable under paragraph 5 of the Order dated 19 December 2019 be varied up to HK$50,000 per month, i.e. HK$25,000 per month for each child, the first payment to be made on 1 June 2021, until the Children attain the age of 18 or cease to receive full time education, whichever is the later;

(2)  Any surplus in the Intervener’ Funds be equally shared by the Children at the end of the day;

(3)  H’s undertakings under Recitals Q and R of the order dated 19 December 2019 do carry on.

9.Despite the parties’ settlement agreement in the above, the parties are still at loggerheads with W’s claim for backdating of the periodical payments from February 2017. The trial of W’s claim for backdating lasted for two days.

10.In W’s Closing Submission dated 10 June 2021, Ms Chiang argues that H’s contention that W’s claim for backdating is fully settled by the order dated 19 December 2019 is misconceived. In her submission, the order dated 19 December 2019 reflects settlement for AR and preliminary issue but the issue of the Children’s maintenance is intentionally left open by the consent order. She stresses that a backdating order contains an element of compensation. She submits that W’s claim is supported by her evidence in her Affirmation dated 5 October 2020 that the monthly sum of HK$7,200 that H used to pay to the domestic helper was not enough to buy food for the family and she had to pay an extra sum of HK$5,000 per month in average. She also submits that, in W’s replying affirmation dated 3 December 2020, W furthermore gave evidence that H ceased usual payments for general household expenses and children expenses and as a result she needed to borrow from friends and relatives to meet the shortfall.

11.In the Closing Submission, Ms Chiang suggests the court to take the agreed monthly sum of HK$50,000 for the Children as the Children’s reasonable expenses for the purpose of the calculation of backdating. In Ms Chiang’s submission, W’s claim is for the period from February 2017 to May 2021 (53 months). HK$50,000 X 53 = HK$2,650,000. It is accepted that W shall give credit to payments received by her during the same period. From February 2017 to July 2020 (43 months), H paid HK$7,200 per month, and from August 2020 to May 2021 (10 months), W received HK$35,000 per month out of the Intervener’s Funds. After having given credit to HK$7,200 X 43 + HK$35,000 X 10 = HK$659,600, W’s claim is for HK$1,990,400. In the alternative, if the court does not take the said sum of HK$50,000 per month for the calculation of W’s claim, Ms Chiang suggests the court to use W’s Form E dated 8 August 2015 and her 2^nd Form E dated 7 January 2021 to gauge the amount actually spent by W on the Children over the years. In her submission, somehow the court can arrive a figure of HK$32,073 per month for the two Children.

13.Mr Li takes great exception to Ms Chiang’s closing submissions on the calculation of W’s claim. It is also noted that W does not provide the particulars of her claim for backdating until the service of her Opening Submission, and the calculation until the service of her Closing Submission.

14.Mr Li asserts that W shall not pursue the backdating without leave under the ‘12-month rule’ as provided by s.12 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (‘MPPO”).

15.To deal with the last paragraph in the above first, I take notice that s.12 MPPO provides that a person shall not be entitled to enforce through the court the payment of any arrears due under a maintenance order made by the court. Clearly, this is not the present situation. Accordingly, I do not accept Mr Li’s contention about the so called ‘12-month rule’.

16.As to Mr Li’s contention that if there was any shortfall in the Children maintenance, it would have been already fully settled by the order dated 19 December 2019, I take notice of the following terms of the said order: -

A.  AND UPON the Petitioner, the Respondent and the Intervener agreeing and confirming … the arrangements for finances and full and final settlement between all 3 parties …;

B.  AND UPON the Petitioner, the Respondent and the Intervener hereby acknowledging to the Court and each other that the provisions herein are accepted in full and final settlement of all claims that each of the parties may have against the other and/or their respective estates, including inter alia for maintenance pending suit, periodical payments, or nominal maintenance, lump sum or sums, secured periodical payments, transfer and/or settlement of property order, order for sale and/or other property adjustment orders including claims arising under the Matrimonial Causes Ordinance, the Matrimonial Proceedings and Property Ordinance, the Married Persons Status Ordinance, the Inheritance (Provision for Family and Dependents) Ordinance and/or any other relevant Ordinances in Hong Kong or relevant legislation in any other jurisdiction, and including civil claims or disputes or issues concerning beneficial ownership of properties and assets;

C.  AND UPON the Petitioner and the Respondent agreeing and acknowledging to the Court and to each other that the terms herein shall be binding …;

F.  &AND UPON the Petitioner and the Respondent agreeing and acknowledging that all assets subsequently acquired by either the Petitioner or the Respondent by way of gifts, inheritance or in any other way shall remain in their respective absolute sole beneficial ownership;

G.  AND UPON the Petitioner and the Respondent agreeing, acknowledging and undertaking that subject to the terms of settlement herein: - (1) They shall each be solely responsible for his or her own debts and liabilities incurred prior to the date of the Consent Summons and thereafter;

Q.  AND UPON the Respondent undertaking to the Court and to the Petitioner that he shall pay directly to the school of the children (1) school fees; (2) school miscellaneous fees; (3) school bus; and (4) school trips of the Children until further order of the Court;

R.  AND UPON the Respondent undertaking to the Court and to the Petitioner that he shall pay directly to the current domestic helper monthly salary until expiration of her current employment contract;

BY CONSENT, IT IS ORDERED that: -

1.   …

2.   The Petitioner’s and the Respondent’s respective claims for all forms of ancillary relief against each other or each other’s estate within and without the jurisdiction of Hong Kong including claims for maintenance pending suit, periodical payments, nominal maintenance, secured periodical payments, property transfer or settlement orders, orders for sale and lump sum orders under the Matrimonial Proceedings and Property Ordinance (Cap. 192) and all other relevant legislation, do stand dismissed;

…

5.   The Intervener do pay a sum of HK$3,500,000 into a joint name account of the Petitioner and the Respondent, to be used solely for maintenance and education of the family children … the quantum of payment out to be HK$35,000 per month in addition to Recital Q & R above, all without prejudice to the Petitioner and the Respondent arguing on the reasonableness of such periodical sum at substantive hearing;

17.I take notice that W was represented by counsel during the making of the order dated 19 December 2019.

18.It is trite that there shall be no full and final settlement when dealing with the developing needs of children. After having carefully considered the terms of the order dated 19 December 2019, however, I am prepared to accept that the children maintenance matter including W’s so-called claim for backdating is fully settled by the order dated 19 December 2019, save to the limited extent of the proviso under the paragraph 5 thereof and subject to the developing needs of the Children.

19.According to the paragraph 5 of the order dated 19 December 2019, the parties have reserved the right to argue on the reasonableness of the quantum of the monthly payment out from the Intervener’s Funds for the benefit of the Children. In this regard, the parties have reached an out of court settlement regarding the Children’s monthly maintenance. On 26 May 2021, by consent it was ordered that the quantum of the payment out as provided under the paragraph 5 of the order dated 19 December 2019 be varied to HK$50,000 per month for the Children, namely HK$25,000 per month each, payable on the 1^st day of each month starting from 1 June 2021. In the circumstance, I take the view that the parties have also fully settled the question of the quantum of the monthly payment out for the Children under the paragraph 5 of the order dated 19 December 2019. Ms Chiang has expressed that the backdating can be described as compensation to W. As such, it is for W’s benefit. By no stretch of the imagination that W can seek a lump sum payment in compensation of so called backdating under the proviso described in the paragraph 5 of the order dated 19 December 2019.

20.The above finding is sufficient to dispose of W’s present application. In such case, it is unnecessary for me to embark a discussion on the other contentions raised by Mr Li in opposition, such as his complaints about procedural unfairness or criticisms on Ms Chiang’s calculation.

21.In conclusion, it is ordered that W’s application for backdating is dismissed.

22.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 the costs of her claim for backdating 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.

Melinda Chiang instructed by Wong & Co. for the Petitioner

Felix Li instructed by Ip & Heathfield for the Respondent