Tjb or Jbt v. Dmt
Read the full judgment text of FCMC 9861/2014 on BabelCite. This Family Court judgment was delivered on 3 November 2021 before His Honour Judge I Wong.
Leave to Appeal – District Court – Matrimonial Causes – Ancillary Reliefs – Foreign Law – Earning Capacity – Evidence – Costs – Whether court had jurisdiction to ignore Nepal law – No; Whether assumption of husband's employment capacity was wrong – No; Whether court failed to guide wife on evidence – No – Application for leave to appeal dismissed; Wife to bear costs
Legal issues: Jurisdiction and application of foreign law · Earning capacity and employment assumption · Failure to guide wife on evidence
Outcome: Application for leave to appeal dismissed.
Cited by 1 case · Cites 1 case
|
FCMC 9861/2014 [2021] HKFC 224 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 9861 OF 2014 ----------------------------
--------------------------- Coram: His Honour Judge I Wong in Chambers (Not Open to Public) Date of the Respondent’s Application and Written Submissions: 7 October 2021 Date of the Petitioner’s Written Submissions: 25 October 2021 Date of Ruling: 3 November 2021 __________________ R U L I N G ( Leave to Appeal ) ( Paper Disposal ) __________________ Background 1.The judgment handed down by me on 20 September 2021 (“the Judgment”) was for the resolution of the parties’ ancillary reliefs in their divorce proceedings. The main order I made is that the 9 pieces of land owned by the parties and located back in their home-country Nepal are to be sold in open market within 6 months and the proceeds of sale are to be divided in the proportion that the petitioner husband is to have 40% and the respondent wife 60%. 2.Dissatisfied with the Judgment, the respondent applied for leave to appeal. 3.In this Ruling, I shall, for the ease of reference, continue to refer to the petitioner as “the husband” and the respondent as “the wife”. I shall also adopt the same nomenclature and abbreviations used in the Judgment. 4.As I have already set out the parties’ case and their facts in the Judgment, I do not propose to repeat them here. This Ruling has to be read alongside the Judgment. Applicable Legal Principles 5.The applicable legal principles under which leave to appeal is to be granted pursuant to section 63A(2) of the District Court Ordinance (Cap 336) is well settled. In brief, leave should not be given unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. A reasonable prospect of success means an appeal with prospects that are more than “fanciful”. The Draft Grounds of Appeal 6.The wife has 3 draft grounds of appeal. (1)The court has no jurisdiction 7.The wife submits that when making the order for sale, I failed to consider the laws of Nepal because according to the laws of Nepal both the husband and the wife could not sell the lands without the consent or agreement of their children. 8.This ground can be disposed of right away since it is not a new issue or argument. I have clearly dealt with this issue at [25] of the Judgment where I said,
9.It is of no use for the wife to just repeat her submissions here. I do not find any merit on this ground. (2)Wrong to assume that the Husband would not be able to work 10.The wife submits that it was wrong for me to have just assumed that the husband would not be able to take up any employment due to his old age even though he gave evidence that he had a job offer. 11.The wife is either taking what I said out of the context or she simply misunderstood what I said. The husband was nearly 74 years old at the time of the Judgment. I did not say he did not have any earning capacity; indeed, I found he had some. What I said at [61] was,
12.Again, there is no merit in this argument. (3)Failed to guide/instruct the wife 13.The wife complains that I failed to guide / instruct her on what the effect would be if she chose not to give evidence at trial. 14.This assertion is simply incorrect. At [27] of the Judgment, I said,
15.It should not be forgotten that throughout the trial the wife had her son acting as her McKenzie friend and that her affirmations and documents were obviously well prepared by someone for her. It must have been her conscious and calculated decision not to give evidence at trial. Order 16.For the reasons aforesaid, there is simply no reasonable prospect of success on the wife’s intended appeal. Her application must be dismissed and I so order. Costs 17.There is no reason why the wife should not bear the costs of this application. The husband’s solicitors have attached to their submissions a Statement of Costs for the purpose of summary assessment. I consider this is the appropriate approach. However, the husband is legally aided. Before I make an order nisi on costs, the husband’s solicitors should lodge and serve a written acknowledgment waiving the right to any further sum of money including common fund costs in respect of the costs of the application within 7 days: see Order 62, rule 9C(1)(b), Rules of the High Court.
Mr John Massie of Massie & Clement, Solicitors, on the instructions of the Director of Legal Aid, for TJB or JBT, the petitioner JBT, the respondent, appeared in person | ||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under FCMC 9861/2014