Pang Kwok Hung v. Pang Leung Yee Wan

CACV000051/1996

IN THE COURT OF APPEAL

1996, No. 51
(Civil)

------------------------------------

Coram: Hon Litton, V.-P., Ching, J.A. and Sears, J. in Court

Date of hearing: 31 May 1996

Date of judgment: 31 May 1996

----------------------

J U D G M E N T

----------------------

Litton, V.-P.:

1. Mr Pang Kwok Hung and Madam Pang Leung Yee Wan are husband and wife. They are the parties to a matrimonial suit commenced by petition in the District Court. By notice dated 24 May 1995 the wife gave notice of her intention to apply for ancillary relief, including an avoidance of disposition order under section 17(1) of the Matrimonial Proceedings and Property Ordinance, cap 192: that the transfer of the husband's shares in a private company called Sunsfield Trading Limited be set aside. The transfer of the shares had taken place on 30 July 1992. Eventually an application was taken out on 1 September 1995, served on the husband and on Pang Hin Cheung, Ip Kwok Fai and Su Yau Chung, the intervenors, who are the other shareholders of Sunsfield Trading Ltd., to whom the husband's shares representing 25% of the issued share capital of the company were sold in July 1992.

2. By his order dated 21 December 1995 His Honour Judge Hartmann dismissed the wife's application and by a further order dated 15 January 1996 the wife was ordered to pay the intervenors' costs, with the costs between the husband and the wife being reserved.

3. The wife's application was made under section 17(1)(b) of the Matrimonial Proceedings and Property Ordinance whereby if the court was satisfied (1) that the sale was made with the intention of defeating the wife's claim for financial provision and (2) if this disposition were set aside, different financial provisions would be granted to the wife, then the court had power to make an order: But subject to this: by s17(2), a disposition made for valuable consideration to a person who at the time of the disposition acted in relation to it in good faith and without notice of the husband's intention did not come within s17(1).

4. The judge found as a fact that the intervenors acquired the shares in good faith and without notice of the husband's intention. That, as it seems to me, concludes the matter.

5. Whilst the notice of appeal sought originally to impeach the judge's findings of fact, that is now abandoned by counsel. But Miss Yip on behalf of the wife says this: "There is evidence before the Court that the shares were in fact bought by the use of the company's money; this therefore offends s47A of the Companies Ordinance."

6. The same matter was raised in the court below and the judge quite rightly declined to deal with it. The exercise of the judge's jurisdiction was under the Matrimonial Proceedings and Property Ordinance, not the Companies Ordinance, and the company was not a party before him. Whether the company had offended the provisions of s47A was clearly not something the judge could have been invited to enquire into. Moreover, the mere fact that the consideration for the purchase of the shares was satisfied by the use of the company's cheques does not necessarily mean that s47A has been breached.

7. Miss Yip seeks to argue in this court that the judge was wrong: he should have enquired into the matter. I have already expressed my reasons for disagreeing with the submission. But I go further. In fact Miss Yip is not seeking from this court an order to discharge the judge's order of 21 December 1995 as originally sought in the Notice of Appeal. She says we should give some kind of declaratory judgment. This court has no such jurisdiction.

8. In fact there are no grounds for appeal at all. I would dismiss this appeal.

Ching, J.A.:

9. I agree with the reasons given by my Lord the Vice-President and following his reasons I too would dismiss this appeal.

Sears, J.:

10. I also agree. I would only add this. It is far better for s17 applications nowadays to be heard together with substantive applications for financial payments. Much time and costs will be saved.

Litton, V.-P.:

11. This appeal is dismissed with costs to the intervenors.

Representation:

Miss Anita Yip (M/S Stevenson, Wong & Co.) for the Respondent/Appellant

Mr Pang Kwok Hung - Petitioner/Respondent in person - absent

Mr Anthony K.K. Chan (M/S Fairbairn Catley Low & Kong)

for the Intervenors namely Pang Hin Cheung, Yip Kwok Fai and Su Yau Chung