Rmh v. Gy

CAMP 513/2021

[2022] HKCA 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 513 OF 2021

(ON AN INTENDED APPEAL FROM FCMP NO 38 OF 2020)

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BETWEEN

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Before: Hon Yuen JA and B Chu J in Court

Date of the Applicant’s Written Submissions: 12 November 2021

Date of the Respondent’s Written Submissions: 26 November 2021

Date of Judgment: 29 April 2022

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.This is an application for leave to appeal made by the Applicant (“the Mother”) in Guardianship of Minors Ordinance proceedings FCMP 38/2020. She seeks leave to appeal the decision given on 26 August 2021 (“the Decision”) by DJ I. Wong (“the judge”). This was an ex tempore Decision with reasons given orally. Those reasons were subsequently set out in writing at §12 of the judge’s written Ruling of 29 October 2021 (“the Ruling”) in which he refused the Mother’s application for leave to appeal.

Background

2.Very briefly, the background is as follows. The Respondent in the proceedings (“the Father”) and the Mother were not married to each other. In October 2016, a boy (“W”) was born to them. The Mother and W lived in an apartment in Hong Kong (“the Hong Kong home”) for which the Father paid the rent. They had 2 domestic helpers and a driver. During their relationship (at least from May 2018 to March 2020), the Father gave the Mother a total sum of $400,000 a month¹. The Father accepts in what has been called the “millionaire’s defence” that he is wealthy enough to meet the court’s reasonable order for W’s maintenance, and thus it would not be necessary for him to disclose his assets.

3.In 2019, the Mother started a relationship with another wealthy person referred to as “GB”.

4.In early 2020, the Mother and W went to the USA (of which she is a citizen) on what was originally intended to be a short trip. Since then, they have stayed in Los Angeles, and have not returned to Hong Kong due to travel restrictions as a result of the COVID pandemic. GB also went to the US and provided her with financial support².

5.In April 2020, the Mother commenced GMO proceedings. Evidence was filed in May 2020³.

6.In May 2020, the Mother renewed the lease on the Hong Kong home on the basis that W and she would return to live here when travel restrictions were lifted. The rental was $157,000 pm. She also kept the domestic staff and the driver.

7.On 4 May 2020, the Family Court made an order that the Father pay the Mother interim interim maintenance including carer’s allowance in the sum of $557,000 pm (including $157,000 for rent for the Hong Kong home) for W’s benefit.

8.On 15 September 2020, there was a hearing of the Mother’s application for interim maintenance and litigation funding. Both parties were represented by counsel.

The Dec. 2020 Judgment

9.1.On 30 December 2020, the judge handed down a detailed Judgment on Interim Maintenance and Litigation Funding (“the Dec. 2020 Judgment”).

9.2.As far as Interim Maintenance was concerned, the judge was aware that as the application was one for interim relief, the court did not have the benefit of seeing and hearing the parties in the witness box, and so the veracity of their evidence was not tested (§38). Nevertheless, he was critical of certain claims made by the Mother for expenses for the Hong Kong home when W was not even living there (§63), noted that no distinction was made by the Mother in her Form E between expenses in Hong Kong and those in LA (§70), and agreed with criticisms made by the Father’s counsel regarding some of the Mother’s claims eg medical and dental treatment of $28,560 pm for W who is in good health (§80), charity donations submitted as W’s personal expenses (§81), and “private education” for W at $138,500 pm (§85). More importantly, these claims were against the backdrop of evidence from the Mother affirming that the cost of living in LA is much lower than that in Hong Kong (§89).

9.3.The upshot of the Dec. 2020 Judgment was that the judge ordered the Father to pay the Mother for W’s maintenance a total sum of $463,400 pm from 1 January 2021 (§126) which sum was made up of three components (§92):

(i) $240,000 (being 60% of $400,000);

(ii) $66,400 (being about 40% of the net-of-rental general expenses for the Hong Kong home); and

(iii) $157,000 (being the rent for the Hong Kong home).

9.4.As far as Litigation Funding was concerned, the judge refused the Mother’s application for litigation funding for reasons set out in the Judgment (§§95-125).

9.5.It is important to note that there was no appeal from the Dec. 2020 Judgment.

The Mother’s summons to vary the Litigation Funding order in the Dec. 2020 Judgment

10.1.On 15 April 2021, the Mother issued a summons to vary the order in the Dec. 2020 Judgment refusing her application for litigation funding. The Mother did not seek to vary the order on interim maintenance.

10.2.A variation was granted by the judge on 11 June 2021 (the “Legal Costs Provision Judgment” or “LCP Judgment”) on the basis that there has been a change in material circumstances in that the Mother had ended her relationship with GB (§§18-19) who had previously financed her legal costs. He ordered the Father to pay $1.8m to her solicitors.

The Father’s summons to vary the Interim Maintenance order in the Dec. 2020 Judgment

11.1.In the meantime, also on 15 April 2021, the Father applied to vary the Interim Maintenance order in the Dec. 2020 Judgment, on the ground that there has been a material change in circumstances as the Mother had exercised the early termination clause to terminate the lease of the Hong Kong home from August 2021.

11.2.In July 2021, the Mother’s solicitors filed an affirmation attaching a draft affirmation from the Mother for the purpose of (i) opposing the Father’s summons for variation; (ii) in response to the Father’s intended affirmation; and (iii) in support of her intended summons for variation of interim maintenance⁴.

11.3.In the draft affirmation, the Mother alleged that apart from the termination of the lease for the Hong Kong home, there were other material changes of circumstances, including: (i) unexpected living expenses in the US; (ii) her own medical conditions and treatments; (iii) the delayed commencement of business of her own company; and (iv) the termination of her relationship with GB.

11.4.After setting out details of various items, she claimed estimated monthly expenses for W of $819,843.30 (§52), and for herself as carer’s allowance $136,260 (§64), resulting in a total sum of $956,103.30 (§65).

The judge’s Decision

12.1.On 26 August 2021, the judge heard the Father’s summons for variation. The judge was informed by the Mother’s counsel that she had decided to relocate W to the US permanently, which had met with the Father’s agreement. (Indeed, a consent order was made shortly thereafter, on 13 September 2021).

12.2.The judge allowed the Father’s summons for variation on the ground that the Mother no longer had to pay rent for the Hong Kong home ($157,000) or for the staff here ($66,400), two of the three components making up the Interim Maintenance Order in the Dec. 2020 Judgment. It is clear from the Decision⁵ that the judge held that the surrender of the tenancy was the only material change in circumstances, and that there was no change in the US. In response to the argument of the Mother’s counsel that when there is an application for variation, the court must look afresh at the matter⁶ (including all the figures set out in the draft affirmation), the judge declined to do so as there was no material change in the circumstances in the US, there was only a short period of time since the Dec. 2020 Judgment, and the trial was well on its way (set down for hearing commencing on 3 May 2022).

12.3.For those reasons, the judge ordered that the Interim Maintenance Order made in the Dec. 2020 Judgment be varied to the effect that the Father pay to the Mother for W’s benefit:

(a) by 1 September 2021, the sum of $463,400 ($260,400 + $203,000 as part of the Mother’s moving costs from Hong Kong to the US);

(b) by 1 October 2021, the sum of $324,400 ($260,400 + $64,000 as the balance of the said moving costs);

(c) from 1 November 2021, $260,400 pm until further order.

Application for leave to appeal

13.It is from the above Decision that the Mother seeks leave to appeal. As mentioned earlier, leave was refused by the judge in the Ruling. Hence, the application to this court.

Discussion

14.In S v C⁷, this court⁸ held in an application for leave to appeal an order made by the Family Court for maintenance pending suit (“MPS”):

“It is important to note that MPS is an interim measure, intended to be temporary, and subject to adjustments in the final orders to be made in the determination of ancillary relief. Overall fairness can be achieved at that point by giving credit and set-off if there is found to have been any overpayment or underpayment in the interim. In other words, an order for MPS does not finally determine the rights and obligations of the parties, and since it involves simply the payment of money, its effects may in general be redressed by monetary relief at the end. This explains why in relation to MPS the courts ‘take a broad view’ of the parties’ finances rather than engage in any detailed investigation, adopt a ‘broad brush’ approach, and seek to arrive at ‘rough and ready’ conclusions (see Rayden and Jackson on Relationship Breakdown, Finances and Children at §11.78; HJFG v KCY [2012] 1 HKLRD 95, at §§32-38). Appeals should be rare and the parties should be encouraged instead to focus on, and bring about as early as practicable, the final resolution of their dispute. As has been said in Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §30 (albeit not specifically with regard to MPS), even if the threshold of reasonable prospects is met, the court may nonetheless in its discretion refuse leave to appeal in the interests of procedural economy and proportionality. For my part, I consider that leave to appeal from MPS orders should generally not be granted unless there is some special reason why the matter cannot or should not be left to the ancillary relief stage such as serious hardship caused by the order to a party”. (Emphasis added).

15.1.Applying that approach, we would refuse leave to appeal the Decision. As noted earlier, there was no appeal from the Interim Maintenance Order in the Dec. 2020 Judgment. That order had been made on the basis of three components, two of which (rent and staff for the Hong Kong home) no longer applied when the Mother terminated the lease and the parents agreed on W’s permanent relocation to the US. The termination of the lease was therefore clearly a material change of circumstance.

15.2.As for the 4 matters alleged by the Mother in the draft affirmation to be also material changes of circumstances, it would appear that (i) to (iii) were merely her attempts to answer some of the judge’s criticisms in the Dec. 2020 Judgment, including the absence of evidence verifying the Mother’s claims. They were not repercussions following on from the termination of the lease of the Hong Kong home. We should say no more at this stage as her summons to vary (filed shortly before the hearing of the Father’s summons) has been ordered to be heard at the same time as the trial. This was a case management decision which the judge was entitled to make.

15.3.As for (iv), financial support from GB had not been taken into account in the judge’s assessment of the Interim Maintenance Order in the Dec. 2020 Judgment. Hence, it is difficult to see why it would be a material change in circumstance affecting that order. In contrast, it had been taken into account in the judge’s decision refusing Litigation Funding in the Dec. 2020 Judgment, which accounts for the order in the LCP Judgment that the Father pay the Mother’s legal costs in the sum of $1.8m.

15.4.In light of the above, and the fact that with a monthly payment of $260,400, it could hardly be said that there is any special reason such as serious hardship to W during the few months before trial, we would dismiss the application for leave to appeal.

Order

16.The Mother’s summons for leave to appeal filed on 12 November 2021 is dismissed with an order that she is to pay the Father’s costs in the sum of $41,764 which we find reasonable.

Written Submissions by Mr Jeremy Chan, instructed by Chaine Chow & Barbara Hung, for the applicant

Written Submissions by Ms Frances Irving, instructed by Stevenson Wong & Co, for the respondent