Wwgw v. Cskl and Another

FCMC 10898/2019

[2022] HKFC 86

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 10898 OF 2019

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Coram:  District Judge K K PANG in Chambers (Not Open to Public)

Date of Hearing :  12 April 2022

Date of Handing Down of Judgment :  12 April 2022

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DETERMINATION

(Preliminary Issues)

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1.The parties were married in 1989. There is one child of the family now living, a son, he is over 18 years old and self-supporting.

2.On 11 September 2019, the petitioner husband (‘H’) filed the present divorce proceedings based on 2-year separation.

3.H does not make any claim for ancillary relief. By a Form A filed on 27 November 2019, the respondent wife (‘W’) gives notice that she intends to proceed with the application for ancillary reliefs, including an order for periodical payments, a lump sum order and property transfer order.

4.By a summons filed on 27 October 2020, W applies for an order that: -

(1)  H’s mother (‘Madam Lee’) be joined in these proceedings;

(2)  A declaration that W is the sole beneficial owner of a landed property in Hong Kong (‘the subject property’) and Madam Lee is holding the subject property on trust for W, subject to W’s interest therein being vested in Official Receiver pursuant to the Bankruptcy Order made on 25 June 2019 under HCB 2919/2019;

(3)  Further directions; and

(4)  Costs.

5.By the order dated 29 December 2020, Madam Lee was joined as the 5^th respondent.

6.By the 1^st and 2^nd letters both dated 8 April 2022, the court raised the following queries/questions for W’s comments: -

(1)  W do show with supporting document that the Official Receiver has consented to the proceedings under the above summons filed on 27 October 2020;

(2)  Is W’s claim matrimonial proceedings?

(3)  Is the trustee-in-bankruptcy a necessary party?

(4)  Does the Family Court have jurisdiction in W’s above claim?

7.By the 1^st letter dated 8 April 2022, W through solicitors produced a letter of the Trustee-in-bankruptcy dated 24 October 2019, purportedly granting consent to W to proceed with the present divorce proceedings.

8.By the 2^nd letter dated 8 April 2022, W through solicitors averred that they took the view that the Family Court does have jurisdiction in W’s above claim since the application is no difference from other similar applications in matrimonial proceedings and the fact that W is a bankrupt does not change the nature of the application.

9.By the court’s direction dated 12 April 2022, there be a trial of the above queries/ questions as set out in the court’s 1^st and 2^nd letters dated 8 April 2022 as preliminary issues.

10.Mr Wong W’s counsel maintained the views as set out in the above solicitors’ letters dated 8 April 2022. Mr Wong also produced a letter of the Trustee-in-bankruptcy dated 11 April 2022, by which the Trust-in-bankruptcy confirmed that consent has been given to W to proceed the divorce proceedings including all necessary applications.

11.Unsurprisingly, both H and the 5^th respondent wish the court to proceed with the trial of W’s above summons filed on 27 October 2020 so as to make a fact finding on the beneficial ownership of the subject property, so much so that all parties involved will have a resolution to their disputes, albeit none of them are able to show to the court how such fact finding is relevant to the ancillary relief proceedings in the present divorce suit.

12.After having the opportunity of hearing counsel for W and the 5^th respondent and H appearing in person, I take the following views.

13.It is the practice of the Family Court to deal with third party interests as a preliminary issue as part of the exercise to determine what is available for distribution in ancillary relief application, following the English case of TL V ML (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1236. By the summons filed on 27 October 2020, however, in essence W’s claim is for a declaration that Madam Lee, the registered owner, holds the subject property on trust for the benefit of the Trustee-in-bankruptcy. It is indisputable that, if any, W’s interest in the subject property vested in the Trustee-in-bankruptcy is unavailable for distribution in the ancillary relief application in the present divorce suit. Accordingly, W’s claim is irrelevant to the parties’ matrimonial proceedings. As a corollary, W’s pursuit of her claim for a declaration of trust in respect of a non-matrimonial property for the benefit of the Trustee-in-bankruptcy as part of the matrimonial proceedings under the present divorce suit is totally misconceived.

14.Upon reading the letters of the Trustee-in-bankruptcy dated 24 October 2019 and 11 April 2022 respectively, I further take notice that the Trustee-in-bankruptcy’s consent is restricted to W’s engagement in the divorce suit between the parties. Apparently, it does not cover W’s third party claim against the 5^th respondent for non-matrimonial property.

15.If any, W’s interest in the subject property having been vested in the trustee-in-bankruptcy, I further take the view that W does not have the capacity to sue as she does under the summons filed on 27 October 2020.

16.Worse still, it is unclear if W’s claim is within the District Court’s jurisdiction. It is particularly noted that the paragraph 4 of Practice Direction 27 is not complied with.

17.By reason of matters aforesaid, it is ordered that: - (1) W’s above summons filed on 27 October 2020 be dismissed and (2) Hearing dated 13 & 14 April 2022 be vacated.

18.The dismissal of W’s claim in the above of course does not bar the Trustee-in-bankruptcy from making a claim for W’s alleged interest in the subject property, if any.

19.I now see no reason why costs should not follow the event. As such, it is ordered nisi that W do pay H and the 5^th respondent’s costs of the above summons filed on 27 October 2020, including reserved costs, to be taxed if not agreed, and W’s own costs be taxed in accordance with Legal Aid Regulations. The costs order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the same.

The Petitioner appearing in person via the court’s VCF

Mr Damian Wong, instructed by Chan, Lau & Wai, solicitors for the 1^st Respondent

Ms Lily Yu, instructed by King & Co, solicitors for the 5^th respondent