Cwni v. Tcl

FCMC 8812/2021

[2022] HKFC 89

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8812 OF 2021

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Coram:  HH Judge C.K. Chan in Chambers (not open to public)

Mode of Hearing:  By way of written submissions

Date of Petitioner’s Written Submissions:  10 March 2022

Date of Respondent’s Written Submissions:  24 March 2022

Date of Handing Down Judgment:  20 April 2022

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J U D G M E N T

(Maintenance Pending Suit)

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Application

1.This is a hearing of the Petitioner wife (“the wife”)’s application for maintenance pending suit (“MPS”), including legal costs provision against the Respondent husband (“the husband”). In her summons dated 8 December 2021, she asked for a monthly sum of HK$72,500 as MPS, including:

(1)  HK$30,000 per month as her MPS;

(2)  HK$ 25,000 per month as interim maintenance for the daughter; and

(3)  HK$17,500 per month as interim legal costs provision.

2.The Respondents husband (“the husband”) opposes the application.

Brief Background

3.The parties were married in 2003. Within wedlock, a daughter (“C”) was born in 2004. The parties separated sometime in 2020 and thereafter the daughter, who was still a student continued to live with the wife.  The wife issued divorce proceeding in 2021, based on 1-year separation with consent. A decree nisi of divorce is yet to be granted.

The case of the wife

4.The wife is now aged 47. She stated to be unemployed in her Form E. She said she used to assist the husband in his real estate business in Sai Kung and received a monthly salary of HK$80,000 from which she would also pay for the family expenses. However, such payment was stopped as from December 2019, and starting from May 2020, the husband had not paid her a penny, except he would pay HK$6,000 directly to the daughter as pocket money together with the daughter’s school fees. The wife did try to start her own business as a beauty consultant, but due to the recent public health situation, the resumption of her business is still very much uncertain. She said she had needs of HK$83,245 per month, including:

(1)  HK$42,690 as general expenses (including mortgage payment of HK$28,953);

(2)  HK$37,173 as personal expenses (including personal loan repayment of HK$26,936); and

(3)  HK$3,382 as the daughter’s expenses.

5.According to the wife, most of her expenses were on mortgage repayment. In late 2018, at the request of the husband, the wife refinanced the former matrimonial home at Lohas Park (“the FMH”) and obtained a loan of about HK$3,200,000, from which 2 respective sums of HK$2,200,000 and HK$990,000 were paid over to the husband.

6.She further stated that the husband had overstated his monthly expenses and there was also no full and frank disclosure of his financial resources. He lied about his income at HK$30,000 per month. He also failed to account for his receipt of HK$3,220,000 from the wife and his personal loan from the Standard Chartered Bank at HK$680,000. Despite the husband’s claim of financial difficulties, he still bought a Honda Station Waggon and patronized five-stars hotel for meals.

7.As to her claim for legal costs provision, the wife stated that her legal aid application was refused due to her ownership of various local and overseas properties. She estimated her legal costs up to FDR was HK$315,000. She divided it by 18 and came up with a monthly sum HK$17,500.

The case of the husband

8.The husband is now aged 51 and runs an estate agency in Sai Kung. He said the golden years of the business was from 2010-2016, and over the years, the family has acquired a total of 5 properties:

	Registered Owner	Landed Properties	Net Value
(1)	Wife	the FMH	HK$2,395,151
(2)	Wife	Car park space	HK$2,400,000
(3)	Wife	Car park space	HK$2,400,000
(4)	Wife	London Property (UK)	HK$4,753,000
			HK$11,948,151
(5)	Husband	Bradford Property (UK)	HK$538,080
		Total:	HK$12,486,231

9.The husband said that his estate agent business had been hit hard by the social events and the public health crisis. The audited accounts showed that the net profits for the years of 2018 and 2019 were respectively HK$46,969 and HK$59,809. He was not having any other income except the monthly salary that he drew at HK$30,000 per month.

10.In the husband’s affirmation in opposition, he stated that the wife’ employment with the estate agency was in name only, with the sole purpose of enabling her to obtain a loan from the bank. He said all the payments made to the wife was from the bank loan.

11.He further said he was now paying HK$17,000 monthly for rent and HK$6,000 to the daughter. His total expenses were HK$126,218.93. He acknowledged that both parties were having monthly deficit and have also incurred substantial debts. The only reasonable way to go forward was to liquidate their 5 landed properties for a fair distribution as soon as possible. Under these circumstances, the wife’s application for MPS simply ignores the family’s financial reality and should therefore be dismissed.

My Views

12.After considering the parties’ submissions and the overall circumstances of the case, I have come to the conclusion that the wife’s application has to be dismissed. This decision is based on the following considerations:

(1)  There is no dispute that in approaching the issues of MPS or interim maintenance, the court will only adopt a broad brush approach, without going into any detailed investigation into the disputed facts. Any over or under payment by way of MPS or interim maintenance could always be adjusted at the final hearing after a full investigation into the needs and financial capabilities of the parties.

(2)  The husband does not dispute that the wife was paid the monthly sum of HK$80,000 in the past, but that was already stopped some time ago. More importantly, it is the husband’s case that the source of those payments was from the bank loans, instead from the profits of the business. This is a factual dispute that could only be resolved at trial.

(3)  There is also a factual dispute on the income of the husband. He said he only had HK$30,000 per month and his business was not actually making money. There is some evidential support on the financial status of the business. The audited accounts show that the business has sustained accumulated losses of HK$325,996 in 2017, HK$279,027 in 2018 and HK$219,218 in 2019. The wife might raise a challenge to those company accounts, but again, the proper time to conduct such an investigation must be at trial, instead of at this interim stage. Simply put, I am not satisfied, at least not at this interim stage, that the husband is in a position to pay the wife’s claim of MPS at HK$72,500 per month.

(4)  Despite the controversial issues as stated above, an undeniable fact is that this family is in possession of 5 landed properties, four of them are being held by the wife and one being held by the husband. The total net value of those 5 properties is about HK$12,486,231. The value of the four properties held by the wife is about HK$11,948,151, representing 95% of the total value. In other words, the wife is currently holding about 95% of the visible assets of the family.

(5)  Out of the 4 properties held by the wife, one is the FMH in which she and the daughter are residing. In other words, the wife and the daughter are now having a rather stable residence. The daughter’s school fee and pocket money of HK$6,000 have already been covered by the husband. I appreciate that the FMH is subject to mortgage and there is also a need to cater for the wife’s monthly expenses. I agree with the husband’s submission that the most reasonable course to take is to liquidate some of the family assets to cater for both parties’ immediate needs. The 2 car park spaces (with a combined value of about HK$4,800,000) could be easily utilized for such purpose. They might have been rented out at the moment but I do not think that should be a big obstacle for them to be sold, whether subject to tenancy or not.  I note that the wife’s MPS application was made on 8 December 2021, which was more than 4 months ago. If the wife has put the car parking spaces up for sale in December 2021, I am quite sure that she would have received the sale proceeds by now.

Conclusion and Order

13.I am not satisfied that it is reasonable for the wife to make a MPS application at this stage. Her MPS application fails and her summons dated 8 December 2021 is dismissed.

Costs

14.Since the wife fails in her application, I have thought of making an adverse costs order against her. However, I note that there is no claim for costs by the husband and therefore, I am minded to make an order that each party should bear his own costs, including all costs reserved. This costs order is made on a nisi basis and becomes absolute if no application is made within 14 days from the handing down of this judgment.

Representation:

Messrs. Tang, Lai & Leung, solicitors, for the Petitioner

Mr. Edward M.H. Chan, Barrister-at-law, instructed by Ellen Au & Co., solicitors for the Respondent