Wyt v. Lcr

CAMP 386/2021

[2022] HKCA 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 386 OF 2021

(ON AN INTENDED APPEAL FROM FCJA NO. 3034 OF 2017)

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Before :  Hon Cheung and Chu JJA in Court

Date of Decision :  17 March 2022

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D E C I S I O N

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Hon Cheung JA (delivering the Decision of the Court) :

I.  Introduction

1.This is the 2^nd applicant’s renewed application for leave to appeal against the judgment of H H Judge Ivan Wong given on 2 July 2021. The Judge refused leave. We will deal with the application on paper.

2.The 1^st applicant and the 2^nd applicant will be referred to as ‘the husband’ and ‘the wife’ respectively as in the judgment below. The wife has lodged her written submissions prepared by counsel. The husband, however, did not lodge any written submissions in opposition despite the Registrar of Civil Appeals’ directions[1]. In these circumstances, this application will proceed on the basis of the wife’s submissions only.

3.By his judgment, the Judge dismissed the wife’s application dated 11 June 2018 (the ‘Application’) seeking the following orders: (1) an order that a decree nisi of divorce dated 22 August 2017 be rescinded; and (2) all orders made in that case be set aside, pursuant to section 15C(2) of the Matrimonial Causes Ordinance (the ‘MCO’) (Cap. 179).

II.  Background

4.The Judge summarised the background as follows.

5.The husband and the wife were married in April 2009 (mistakenly stated to be 2019 in the judgment). The marriage failed. On 17 June 2017, they reached an agreement (the ‘Agreement’) containing the following essential terms (as set out in [12] of the Judgment) :

‘ (1) That the marriage broke down irretrievably, the parties have separated since 1 January 2016 and that they have decided jointly to divorce;

(2) The parties agreed that on the day the Agreement was signed to cease any disputes (including litigation), and further that the husband agreed to pay $200,000 to the wife as compensation;

(3) The said payment should be made ‘within one week upon the finalization of the divorce’.’

6.The wife also relied on a written document (the ‘Written Promise’). The front side which was dated ’19 June’ stated that in addition to the $200,000, the husband would further pay the wife $500,000 by two instalments: (1) the first instalment of $200,000 to be paid upon the parties signing the relevant documents at the solicitors’ office; and (2) the second instalment of $300,000 to be paid upon the grant of a divorce decree.

7.The reverse side of the Written Promise stated that: (1) ‘[the husband] will help [the wife] to do anything’; and (2) ‘Including applying for CSSA and public housing), [the wife] are free to stay as long as [she] wish[es]!’. Although this reverse side was undated, the husband accepted that the term regarding the wife’s staying at the husband’s home was part of the overall bargain.

8.On about 22 June 2017, the parties attended the office of the solicitors retained by the husband, TL Ip & Co, for the signing of the divorce papers including, inter alia, the Joint Application for Divorce and a Consent Summons (the ‘Consent Summons’). These documents were all in Chinese. By the Consent Summons, the parties agreed to have a court order to be made in terms of the Consent Summons in full and final settlement of their respective claims for ancillary relief, and that the husband agreed to pay the wife $200,000 within seven days of the decree absolute with no order as to costs. Apparently, the major terms are those of the Agreement.

9.On 23 June 2017, the parties went to a branch of the Bank of China in Shenzhen, where the husband transferred RMB300,000 (equivalent to approximately $350,000) to the account of the wife’s daughter. The husband later paid the wife a further sum of $200,000 on about 1 November 2017.

10.On 26 June 2017, TL Ip & Co filed the Joint Application pursuant to section 11B(2)(a) of the MCO and lodged the necessary papers including the Consent Summons. On 22 August 2017, a decree nisi was granted (the ‘decree nisi’), and the Judge made a consent order in terms of the Consent Summons.

11.It is common ground that after the decree nisi was made on 22 August 2017, the wife stayed in the husband’s home until 19 or 20 April 2018, when the wife was locked out from the husband’s home. She then sought her own accommodation.

12.On 26 October 2017, the husband applied for the decree nisi to be made absolute.

13.On 3 November 2017, the wife issued a summons dated 1 November 2017 to stay the proceedings (the ‘Stay Application’).

14.On 19 April 2018, the wife issued a writ in the Court of First Instance of the High Court seeking to set aside the Consent Order and leave for her application for ancillary relief to proceed as if the Consent Summons had never been signed (the ‘High Court Action’).

15.On 11 June 2018, the wife issued the Application. On 12 June 2018, the wife withdrew the High Court Action. On 30 October 2018, Deputy District Judge J Chow granted leave for the wife to withdraw the Stay Application with costs to be borne by the wife.

16.The Judge dismissed the Application after trial.

III.  The parties’ case

17.Section 15C(2) of the MCO provides that :

‘ (2) Where a court on granting a decree nisi of divorce is satisfied in accordance with the requirement of section 11B(2)(a), it may, on an application’s being made in that behalf by either party to the marriage, at any time before the decree is made absolute, rescind the decree if it is satisfied by that party that he or she has been misled by the other party, whether intentionally or unintentionally, about any matter which he or she took into account when deciding to make the application for divorce.’

18.The wife claimed that she was not allowed to read the Joint Application and the Consent Summons at the solicitors’ office. These documents were just read out to her. She went as far as to claim that the contents of the Consent Summons as adduced at the trial were different from what she saw on the day of signing. She said she was misled by the husband into consenting to divorce in two aspects. First, she argued that by the Written Promise, the husband promised her that she would be permitted to stay in the husband’s home until she is given public housing and CSSA. In breach of the promise, he expelled her from the home on around 20 April 2018.

19.The husband said that he had allowed the wife to stay at his home but since November 2017 the wife became very difficult and always made a scene at home. She demanded the husband to pay her a further $2 million otherwise she would ‘perish with the husband together’. The husband found the wife’s behaviour so threatening that he decided not to allow her to continue to stay at his home.

20.The wife argued that the Written Promise was a factor which she took into account in deciding to make a joint application for divorce in the way she did. As the husband reneged on his promise by expelling her from his home, she was misled by the husband. The wife submitted that ‘it did not matter that the own behaviour of the wife allegedly contributed to her expulsion or left the husband with no choice as [the husband] suggested because the wife was no stranger to the husband and he should know her well when he made the promise. A belligerent wife is still misled if she is made a promise which is not kept’.

21.As regards the second aspect, the wife’s case was that she was misled into signing the Consent Summons whereby she accepted the sum of $200,000 in full and final settlement of any claims for ancillary relief she may have against the husband. She went as far as to say that she did not know the terms of the documents she signed at the solicitors office and she did not know that a Consent Summons was executed.

22.In light of the draft Notice of Appeal and the wife’s written submissions dated 13 September 2021, the wife apparently does not rely on the second aspect in her intended appeal. It is, therefore, not necessary to summarise the husband’s case on the second aspect.

IV.  Proposed grounds of appeal

23.In the draft Notice of Appeal, the wife relied on three grounds of appeal :

1)  Ground 1

24.In ruling against the wife, the Learned Judge took the erroneous view that the husband, who made a clear promise which he did not keep, did not mislead the wife because the wife was in his view the first one to renege on the parties’ bargain. Such a view is an error in law and is against the language and spirit of section 15C(2) of the MCO which is designed to ensure that there is no foul play and gives both parties to a joint divorce the right to back out when he or she is misled in relation to a matter which he or she took into account when deciding to present a joint petition.

2)  Ground 2

25.Further, all that the wife had done was to pursue a legal route in applying to set aside a consent summons. Such a move cannot in law provide the husband with the right to free himself from his side of the bargain and yet insist that the divorce should go ahead as a joint one and be immuned to section 15C(2).

3)  Ground 3

26.The Court ought to have exercised its discretion in favour of rescinding the decree nisi because the misleading act was not a trivial one. The wife was expelled from the matrimonial home and has remained homeless after being promised that she could remain in it.

V.  Our view

27.Leave to appeal will only be granted if it can be shown that the appeal has a reasonable prospect of success or that the interest of justice requires the appeal to be heard.

28.In an appeal against the finding of fact by the trial judge, the appellant must show that the finding is plainly wrong. This ‘plainly wrong’ threshold also applies to an appeal against the exercise of discretion by the Judge.

1)  Ground 1

29.The key issue here is whether the wife was misled by the husband in relation to the husband’s promise that ‘the wife is free to stay in the husband’s home as long as she wishes’.

30.The Judge found that the wife was not a credible witness. He rejected the wife’s case about her lack of knowledge of the Court documents that she had signed. Further, in respect of the first aspect of the wife’s case, the Judge accepted what the husband said. He held that the wife was not misled by the husband in this regard. His reasonings are :

‘ 103. I agree with Ms Cheung that the Written Promise was part of the bargain of the parties in respect of their divorce; the term regarding the wife’s staying at the husband’s home was part of the overall bargain. I also agree with Ms Cheung that after signing the divorce documents the husband had kept on performing his part, specially he did allow the wife to stay at his home until such point when there is a change in the circumstances arising from the wife’s breach of her own part of the bargain.

104. Against this factual background, I agree with Ms Cheung that it cannot be said that the husband misled the wife. The wife was the first to renege on the bargain when she applied to [set] aside the Consent Order by starting a chain of legal actions and seek more money from the husband. It does not lie for the wife to say that the husband had reneged when in fact she was the one who pulled the rug out from under their agreement first. I further take the view that if Mr Chan’s argument regarding ‘misled’ were correct, on the facts of the present case, the husband would be more qualified than the wife to rely upon this ground.’

31.Further, at [105] the Judge held :

‘ 105.  Mr Chan accepted that s. 15C is not cast in mandatory terms. Even where a party has been misled, the court would still have a discretion to decide whether or not a decree nisi should be rescinded. On the above findings of fact, even if Mr Chan’s argument regarding ‘misled’ were correct, I have no doubt that this case is not one where the court should exercise its discretion to rescind the decree nisi.’

32.In light of the findings by the Judge, which the wife does not seek to challenge in her intended appeal, it cannot be said that the Judge erred in finding that the wife was not misled by the husband.

33.The wife only cited one authority, Beales v Beales [1972] Fam. 210, in support of her contention. In that case, the husband was prepared to consent to the grant of a decree to the wife only on condition that there would be no order for costs. The issues, which are not relevant to the present case, concerned, inter alia, whether a respondent could consent to a decree on condition that he was not liable for costs, whether a prayer of costs could be properly omitted from the wife’s petition, and the Court’s powers/duties in these respects.

34.Sir George Baker P at 219B-C dealt with section 5 of the UK Divorce Reform Act (which is similar to section 15C(2) of the MCO). He held :

‘ Section 5 of the Divorce Reform Act 1969 gives the court power to rescind a decree if the petitioner misled the respondent about any matter which the respondent took into account in deciding to consent. If a husband took into account, when giving consent, that his wife would not ask for costs and she subsequently obtains an order for costs against him, he could, I think, apply to have the decree and order set aside.

In my opinion, the Act has provided for divorce in circumstances which enable a respondent to refuse consent except upon the terms that he is not liable for costs, and a court cannot then refuse a decree in an attempt to make him pay costs, or order him to pay costs when his consent is thus qualified.’

35.Beales does not support the wife’s contention. Clearly, Sir George Baker P was considering the issue of whether a respondent could consent to a decree on conditions and the Court’s power of granting or refusing such a decree. He did not consider whether (and if so in what way) the wife in that case could be said to have misled her husband in relation to the obtaining of the order for costs, which was not an issue in that case.

36.Further and in any event, whether one was misled by another is a fact-sensitive question. Each case turns on its own facts and circumstances. For these reasons, Beales sheds little (if any) light on the issue in the present case.

37.In addition, Ground 1 is framed as if the Judge only based his decision on that the wife was ‘the first one to renege on the parties’ bargain’. This is incorrect, as the Judge had considered all the factual circumstances in the case in finding that the husband did not mislead the wife. There is no basis to suggest that the Judge erred in this regard.

2)  Ground 2

38.Ground 2 is also premised upon the contention that the Judge based his decision only on the fact that the wife was ‘the first one to renege on the parties’ bargain’ by applying to set aside the Consent Order. For the reasons set out above, this is incorrect, and the whole premise of Ground 2 falls away.

39.Again, the key issue in the Application is whether the wife was misled by the husband about any matter which she took into account when deciding to make the application for divorce. Given the finding that the wife was not misled by the husband, Ground 2 is beside the point and is without any merits.

3)  Ground 3

40.Under Ground 3, given the finding that the husband did not mislead the wife, section 15C(2) of the MCO had no application. The issue of discretion simply did not and does not arise. In any event, even if discretion is engaged, we do not consider that the decision is plainly wrong. Ground 3 is without any merits.

VI.  Conclusion

41.The wife’s application for leave to appeal is dismissed.

42.As the application is totally without merit, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, we will make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.

43.As the husband did not lodge any submissions in opposition, we will make no order as to costs.

Mr Edward M. H. Chan instructed by Vremeli Chan & Co., for the 2^nd Applicant

The 1^st Applicant, unrepresented