Cheung Wing Kuen, Samuel v. Ip Chui Sum

CACV 452/2021

[2022] HKCA 1029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 452 OF 2021

(ON APPEAL FROM HCMP NO 1981 OF 2020)

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BETWEEN

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Before:  Hon Yuen, Au and G Lam JJA in Court

Date of Hearing and Judgment:  17 May 2022

Date of Reasons for Judgment and Decision on Costs:  14 July 2022

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REASONS FOR JUDGMENT
and
DECISION  ON  COSTS

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Hon Au JA (giving the Reasons for Judgment and Decision on Costs of the Court):

A.  INTRODUCTION

1.By an Originating Summons dated 4 November 2020 (“the OS”), the plaintiff (“Mr Cheung”)  made an application under the Partition Ordinance, Cap 352 for an order of sale of the Property, which he jointly owns with his former wife, the defendant (“Madam Ip”).  By the judgment dated 30 August 2021 ([2021] HKCFI 2535)  (“the Judgment”), Au-Yeung J (“the Judge”)  refused Madam Ip’s application for stay of the OS proceedings and granted Mr Cheung’s application for an order for sale (“the Order”).

2.On 27 September 2021, Madam Ip lodged an appeal against the Order.  Her application for stay of execution of the Order pending appeal was refused by the Judge on 22 October 2021 ([2021] HKCFI 3162).

3.On 28 October 2021, Madam Ip took out two summons in the Court of Appeal applying respectively: (a)  for stay of execution of the Order pending appeal (“the Stay Summons”); and (b)  for adducing the Australian Legal Opinion by Mr Terence Morahan dated 27 October 2021 (“the Australian Legal Opinion”)  as further evidence in the appeal (“the Further Evidence Summons”).

4.On 5 January 2022, this Court (Chu and Au JJA)  allowed the Stay Summons and ordered that, subject to various conditions[1], the execution of the Order be stayed pending determination of the appeal or further order of the Court with its costs in the cause of the appeal.  The Court also directed that the Further Evidence Summons would be dealt with at the hearing of the appeal and the Australian Legal Opinion would be considered in the appeal on de bene esse basis.

5.We heard the appeal on 17 May 2022.  At the end of the hearing, we allowed the appeal and set aside the Order.  We ordered that the OS be stayed pending determination of the ancillary relief proceedings in Australia.  We also made an order in terms of paragraph 1 of the Further Evidence Summons.  We indicated that we would hand down our reasons for judgment in due course and would deal with the questions of costs in it.  This is what we do now.

B.  BACKGROUND

6.We shall briefly state the relevant background facts to put this appeal in context.  Unless otherwise indicated, these are largely uncontroversial.

7.Madam Ip and Mr Cheung were married in Hong Kong in 1994.  After their son was born in 1997, the parties jointly acquired the Property as their matrimonial home in 1998.  They lived at the Property until June 2008, when Madam Ip relocated to Sydney with their son and moved out from the Property.  Mr Cheung resided at the Property until 2011 when he moved to the Mainland for work purposes and the Property was then rented out.

8.Meanwhile, in November 2010, a property in Australia was acquired under Madam Ip’s sole name (“the Albert Road Property”).

9.In 2014, Mr Cheung moved to Sydney.  In 2015, another property in Australia was acquired under Mr Cheung’s sole name (“the Concord Road Property”).  This purchase was funded in part by a mortgage taken out on the Albert Road Property.

10.Unfortunately, the parties’ relationship deteriorated and on 25 May 2016, Mr Cheung applied for divorce in Australia.  Madam Ip returned to Hong Kong in June 2016 and started residing at the Property in April 2017 when the Property’s then tenancy ended on 19 March 2017.

11.On 21 November 2017, the Australian Court made a divorce order terminating the marriage between Madam Ip and Mr Cheung on 22 December 2017.  At that time, neither party initiated any legal proceedings for ancillary relief.

12.Thereafter:

(1)  On 31 December 2018, Madam Ip’s solicitors in Australia sent a letter to Mr Cheung asking for full disclosure of his assets and financial resources in compliance with the pre-action procedure under the Family Law Act 1975 (Cth)  (“the Act”).  Mr Cheung did not respond to the request and made no disclosure.

(2)  From late 2018 to July 2019, the parties had engaged in without prejudice negotiations as to the possible settlement of the family assets including the Property.

(3)  On Mr Cheung’s case, he had failed to hear from Madam Ip since mid-2019.

(4)  On 28 September 2019, Mr Cheung remarried.  However, Madam Ip was only made aware of Mr Cheung’s re-marriage after reading his 4^th affirmation dated 17 August 2021 (ie, just about a week before the hearing of the OS on 24 August 2021)  filed in the OS proceedings[2].

(5)  On 20 January 2020, Mr Cheung’s former solicitors sent a letter to Madam Ip with proposals for the treatment of the Property.  It also stated that, failing any agreement, Mr Cheung would commence legal proceedings for an order for sale of the Property.[3]  Mr Cheung did not receive any reply from Madam Ip, but he did not issue any proceedings as indicated.

(6)  On 8 May 2020, Mr Cheung’s present solicitors sent another letter to Madam Ip indicating Mr Cheung’s intention to “make an application for financial relief without further notice” should they fail to hear from her within seven days.  Again, no reply was received from Madam Ip. Mr Cheung did not however make any application for financial relief as indicated.

13.On 4 November 2020, Mr Cheung took out the OS seeking an order of sale of the Property.

C.  THE JUDGMENT

14.The Judge heard the OS on 24 August 2021 (“the Hearing”).  At the Hearing, Madam Ip’s then counsel sought a stay of proceedings for six weeks to enable Madam Ip to apply for ancillary relief in the Family Court in Hong Kong.[4]

15.In the Judgment, the Judge refused to grant the stay and made an order for sale of the Property.  Applying the well-established principles governing partition applications, and after balancing both parties’ interests, the Judge concluded that an order for sale was beneficial to both co-owners and would not result in great hardship to Madam Ip[5].

16.In this respect, although the Judge accepted that, when matrimonial assets were involved, the court had the power to stay the OS proceedings to enable Madam Ip to take out ancillary relief proceedings in the Family Court and the 6-week stay sought was not a long one, she refused to grant the stay as she concluded that it would be unjust to do so in the circumstances of this case[6].

17.After the Judgment, on 15 September 2021, Madam Ip made a combined application in the Australian Court seeking (a)  leave to take out ancillary relief proceedings, and (b)  if leave is granted, substantive ancillary relief (“the Australian Application”).

18.On 27 September 2021, she lodged a Notice of Appeal against the Order.

D.  THIS APPEAL

D1.   Ground of appeal

19.In the Notice of Appeal, Madam Ip raises effectively the sole ground of appeal that the Judge erred in holding that an order for sale would not prejudice or cause hardship to her but that Mr Cheung would be prejudiced in the absence of an order for sale.  She seeks to set aside the Order, to be replaced with the relief that there be no order in respect of the OS, or alternatively that the OS be stayed pending the determination of the Australian Application.

20.In support of this ground of appeal, Ms Yu for Madam Ip[7] submitted that the OS was a calculated move by Mr Cheung to oust the family court’s jurisdiction and to bypass the process of making full and frank disclosure, and that Madam Ip would be prejudiced by losing the Property in kind when a transfer order would likely be one of the reliefs granted by the Australian Court.[8] She also argued that Mr Cheung had himself been wrong not to pursue any ancillary relief and that he was unjustifiably benefited when he deliberately chose not to go for the family jurisdiction.[9]  Ms Yu also argued that the Judge failed to consider all the circumstances (including the fact that Mr Cheung was occupying the Concord Road Property)[10], placed too much weight on the hearing date of the OS as a milestone date and failed to observe the whole picture.[11]

21.In response, Mr Marwah, counsel for Mr Cheung[12], argued that Mr Cheung did not gain any “head start” and that it was Madam Ip who had ample opportunities but failed to take out any ancillary relief proceedings.[13]  Mr Marwah also argued that the allegation that Mr Cheung was bypassing full and frank disclosure was a new point and should not be entertained on appeal.[14] Counsel further argued that Madam Ip failed to furnish evidence in the Court below to show that she would prima facie be entitled to a transfer order.[15]  As Mr Cheung was barred from claiming ancillary relief under the Matrimonial Proceedings and Property Ordinance, Cap 192 (“the MPPO”)  because of his remarriage and Madam Ip’s delay, he was perfectly entitled to bring his application for an order for sale of the Property.[16]  In any event, Madam Ip had benefited unfairly in occupying the Property in toto without Mr Cheung’s consent and Mr Cheung had been prejudiced as he could not obtain a new residence in Hong Kong for his new family without paying a much higher stamp duty.[17]  Mr Marwah also submitted that Ms Yu made no submissions in D’s Skeleton concerning the milestone date of the OS and that the allegation of Mr Cheung’s concealment of remarriage was not argued before the Judge and should not be entertained on appeal.[18]

D2.   The new evidence

22.As mentioned earlier, by way of the Further Evidence Summons, Madam Ip seeks leave to adduce the Australian Legal Opinion (annexing the Initiating Application of the Australian Application[19])  as new evidence in the present appeal.  In the Australian Legal Opinion, the expert was asked to address the following three questions (based on the Australian Application together with the materials filed with it):

(1)  In relation to the application by Madam Ip in the Australian Family Court, what is the nature of Madam Ip’s current application and how will the Court deal with it?

(2)  Pursuant to Madam Ip’s current application, could Mr Cheung be ordered by the Australian Family Court to transfer his interest in the [Property] to Madam Ip?

(3)  Would the fact that Mr Cheung has remarried and has been a resident in Hong Kong bar him from instituting his own proceedings under section 79 of the Act and seeking orders for asset re-arrangement after the divorce?

23.In brief, the expert answered the three questions as follows:

(1)  Under the Act, financial relief application must be brought within 12 months of the granting of an order dissolving the marriage or with leave of the court after that time.  The Australian Application taken out by Madam Ip constituted the relevant leave application for making the ancillary relief application and the substantive application if leave is granted.  Madam Ip has “strong grounds to obtain leave” and the Australian Family Court would consider the substantive application based on the parties’ financial and asset positions after full discovery in determining how to distribute all the assets, including redistributing the property of the parties to a marriage.  See paragraphs 9 - 12 and pp 5 - 8 of the Australian Legal Opinion.

(2)  It is possible that the Australian Family Court would make a transfer order of the Property in favour of Madam Ip.  See p 8 of the Australian Legal Opinion.

(3)  Mr Cheung’s remarriage would not bar him from seeking leave to institute his own proceedings under the Act seeking order for assets arrangement after the divorce.  See pp 8 - 9 of the Australian Legal Opinion.

24.As indicated by the Court previously, we would take into account the Australian Legal Opinion on de bene esse basis when considering the merits of the appeal below.

D3.   Discussion

25.In dealing with an application like the present one, we should start with the observation by this Court in Chan Man Ki v Yau Chun For [2021] 2 HKLRD 366 at [53] (per Lam VP, as he then was)  that, generally speaking, it is desirable that one court should exercise its jurisdiction over all financial and property disputes between husband and wife.  Hence, ordinarily, it would be appropriate to transfer financial and property claims that fall within its jurisdiction to the Family Court, provided that such a course will not do injustice to either party.

26.It is of course also noted that, as observed by Cumming-Bruce LJ in Matz v Matz [1984] FLR 392, there is no principle that whenever a husband and wife instituted matrimonial proceedings against each other, in which one or both are preferring financial claims against the other, any other litigation between them should as a matter of course be transferred to the Family Court so that all the issues, the subject of litigation between the parties, may be dealt with in one court in the Family Division.  See also Chan Man Ki at [55].

27.The question to be asked is whether, in all the circumstances, it was just and equitable to exercise the discretion to transfer the other proceedings and to stay the other proceedings pending the determination of the broader claims made under the matrimonial jurisdiction of the Court: Chan Man Ki at [56].[20]

28.Bearing these principles in mind, we are of the view that the Judge had failed to take into account relevant matters and had plainly erred when exercising her discretion to refuse to stay the OS.  We will explain why.

29.As mentioned above, the Judge refused to stay the OS as she concluded that it would be unfair and unjust to do so in the circumstances of the present case.  In coming to this conclusion, the Judge took into account the matters set out at [28] of the Judgment as follows[21]:

“28.  Applying these legal principles, this Court has power to stay the OS proceedings to enable Madam Ip to take out ancillary relief proceedings in the Family Court because matrimonial property is involved.  In the overall scheme of things, a period of 6 weeks’ stay sought by her is not long.  However, the greater concerns are as follows:

(1)  Madam Ip has not indicated in her affirmations whether she would institute ancillary relief proceedings in Australia or Hong Kong.  It was only through her counsel that she indicated at this hearing that she would do it in Hong Kong.  It is yet unclear whether Hong Kong or Australia is the more appropriate forum for her to seek ancillary relief.

(2)  Mr Cheung has remarried.  He is prohibited from applying for ancillary relief under section 29AB(2)  of MPPO. He has no other remedy except to apply under PO.  His position will purely be defensive in the Family Court if Madam Ip were to proceed there.  That is a prejudice that this Court should not ignore.

(3)  Ms Leung submits that Madam Ip may be prejudiced in that equal division of Property may not be just and fair and she may be deprived of an order for transfer of the Property to her under the MPPO.  With respect, that is the result of Madam Ip’s own delay in applying to court.  Whilst enjoying occupation of the Property for the last 4 years for free, Madam Ip has not demonstrated a keenness to pursue a transfer order.  In any case, she has not started to show that she is, prima facie, entitled to a transfer order.

(4)  The parties had been married for about 23 years.  There are indisputably 3 major assets – 2 properties in Australia under each of the parties’ sole name and the Property in Hong Kong.  The Australian properties were purchased at A$560,000 in 2010 and A$1,350,000 in 2015.  At an exchange rate of A$1=HK$5.65, the 3 properties are worth a conservative value of A$1,910,000 x $5.65 + HK$18,500,000, ie about HK$29.3 million in total.  If the ‘sharing principle’ is not disapplied, each party shall get half of the assets.  The sale of the Property now will not prejudice or cause hardship to either party.

(5)  An order for sale will achieve a ‘clean break’ between the parties in terms of a joint property.  It will also achieve fairness because Madam Ip has been occupying the Property since 2017 whereas Mr Cheung has been denied his rights to reside in or receive benefits from the Property.

(6)  A stay of proceedings will move the milestone date of the hearing of the OS.  Madam Ip has failed to apply for ancillary relief for 3½ years since the divorce took effect in Australia.  The OS was issued only 10 months after the demand letter.  Madam Ip has not lost her job until mid-2021.  However, she has failed to apply to a family court or to apply for a stay in the 10 months since the OS was served on her.  Her only explanation was that Mr Cheung was not cooperative in making discovery.  However, that would precisely be the reason why she should have gone to court earlier.  She has simply failed to explain the delay or show that there are exceptional circumstances to justify moving the milestone date.” (emphasis added)

30.It is obvious from the above that, in concluding that it was fair and just not to stay the OS, the Judge was of the view that the material prejudice to be suffered by Madam Ip in depriving her of the chance to obtain a transfer order of the Property was caused by her own culpable delay in failing to apply for ancillary relief in the family court for 3 ½ years.  See in particular [28(3)  and (6)] of the Judgment.

31.With the greatest respect, in forming the view that it was Madam Ip’s default which had caused the delay, the Judge had misapprehended the facts in failing to give any or any proper regard to the material events as summarized in [12] above, which clearly show that:

(1)  For a substantial period of time between late 2018 and mid-2019, both parties were engaged in negotiations for reaching a settlement as to the post-divorce arrangements of their family assets, albeit without success.

(2)  Between late 2019 and before the issue of the OS in November 2020, Mr Cheung had also failed to issue any proceedings for financial relief despite indicating that he would do so.

(3)  Throughout this period, Mr Cheung could have but also failed to take out any ancillary relief application in Hong Kong (before he remarried in September 2019)  or Australia (the Australian Legal Opinion shows that he would not be prevented from taking out the application for leave to commence ancillary relief proceedings in Australia because of his remarriage).

32.These matters show that there were good reasons why neither of the parties had taken out any ancillary relief application before mid-2019 and that Mr Cheung was also equally at fault (if fault is to be attributed)  in not taking out an application earlier.

33.Further, when the Judge formed the view at [28(4)  and (5)] of the Judgment that an order for sale would achieve fairness and a “clean break” between the parties, and a sale of the Property would not prejudice or cause hardship to either party by applying the “sharing principle”, the Judge had also failed to give regard to the material factor that Mr Cheung has not yet made any disclosure of his assets and financial position.  This is relevant since without such disclosure:

(1)  the so-called “clean break” and “fairness” could not be achieved by an order for sale of the Property when the court is not apprised of the full and true financial and asset positions of both parties.  This is particularly pertinent in light of the starting approach adopted by the court when dealing with matrimonial assets referred to at [25] above.

(2)  For the same reason, we also agree with Ms Yu that it would be premature and thus incorrect for the Judge to come to the conclusion that Madam Ip would not be prejudiced by an order for sale of the Property by simply making an arithmetical assessment of the stated values of the three landed properties as identified at this stage.  In other words, the application of the “sharing principle” at this stage would be distorted without taking into account the true and full financial positions of both sides.

(3)  Further, as mentioned above at [31(3)], if Mr Cheung had genuinely intended to have a “clean break” of the family assets post-divorce (instead of just the Property)[22], he could have taken out an ancillary relief application in Hong Kong or Australia, in which case he would have to make full disclosure of his financial and asset positions.

(4)  In these circumstances, it would have been more appropriate to deal with the disposition of the Property together with all the other assets of the family in the relevant ancillary relief proceedings when proper and full disclosure of the financial positions of both parties has been made and are considered together.

34.Further, in concluding at [28(2)] of the Judgment that it would not be unfair to Madam Ip if a stay was refused but it would be prejudicial to Mr Cheung if a stay was granted as he could no longer make any ancillary relief application in Hong Kong, the Judge had also failed to give any regard to the fact that Madam Ip only came to know about Mr Cheung’s remarriage and his reliance on this as prejudice only about a week before the Hearing.  See [12(4)] above.

35.This is relevant to the weighing exercise since, given the late knowledge of the remarriage and the reliance on it by Mr Cheung, Madam Ip should at least be given some time to consider these matters, seek proper legal advice and, if necessary, file relevant evidence in response.  This is particularly so when Mr Cheung in his own affirmation deposed equivocally as to whether he could alternatively take out an ancillary relief application in Australia notwithstanding his remarriage[23].  As it happens, the Australian Legal Opinion now obtained by Madam Ip shows that the remarriage itself is not an obstacle to Mr Cheung if he wishes to take out an ancillary relief application in Australia, subject to leave being granted as he is already out of time[24] (a delay he himself had contributed to and has not explained).

36.In the premises, with respect to the Judge, we are of the view that in her weighing exercise, she had failed to take into consideration the above relevant matters and had plainly erred in refusing to stay the OS.  This Court therefore exercised the discretion afresh.

37.Taking into account all the circumstances:

(1)  it is plain to us from the matters as summarized at [12] above that both Mr Cheung and Madam Ip had contributed to the delay in taking out an ancillary relief application earlier.  The delay is thus a neutral factor in the weighing exercise.

(2)  On the other hand, if the OS is not stayed and an order for sale of the Property is made, Madam Ip would suffer significant prejudice as she would be deprived of the chance to obtain a transfer order of the Property in an ancillary relief application.  Such prejudice is further underlined by the fact that Mr Cheung has not made any disclosure of his assets and financial position.

(3)  In this respect, we note Mr Marwah’s submissions that there is simply no chance that a Family Court would order a transfer order to Madam Ip as the Property has ceased to be the matrimonial home of the parties a long time ago.  The simple answer to this is the Australian legal expert was of the view that, based on the materials available to him at this stage (even without Mr Cheung’s disclosure of his assets and financial position), it is possible for the Australian Court to make such an order in the Australian Application[25]. We are of the view that this issue should and can only be properly dealt with in the Australian Application and this court at this stage is not in any position to come to a conclusion that Madam Ip will plainly be unable to obtain a transfer order in Australia as contended by Mr Marwah, in particular when the court is not apprised of the full picture of the scope and extent of the family assets.

(4)  As for Mr Cheung’s assertion that he needs to pay a higher amount of stamp duty for a residence for his new family[26], we note that this is a new point raised on appeal and was not advanced before the Judge.  It is inappropriate for this Court to entertain new and factually-sensitive points on appeal.  In any event, as mentioned above, both parties had contributed to the delay and chosen not to initiate proceedings for ancillary relief earlier.  As such, Mr Cheung has equally contributed to the alleged prejudice he now says he has suffered.

38.In the premises, and bearing in mind the starting approach adopted by the court that ordinarily it would be appropriate to transfer financial and property claims that fall within its jurisdiction to the Family Court mentioned at [25] above, it is clear to us that it would be just and fair in the present case for the OS to be stayed pending the determination of the Australian ancillary relief proceedings.

D4.   The Further Evidence Summons

39.Given the above discussion, for the following reasons, it is clear that the Australian Legal Opinion should be admitted as evidence in this appeal.

40.The application for leave to adduce the Australian Legal Opinion and all the exhibits appended was made under Order 59, rule 10 of the Rules of the High Court.

41.  Order 59, rule 10(2)  provides:

“The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing)  shall be admitted except on special grounds.” (emphasis added)

42.Applying rule 10(2), as the Australian Legal Opinion relates to matters that occurred after the Hearing, the Ladd v Marshall [1954] 1 WLR 1489 requirements therefore do not apply.  In this respect, the Court has a wide discretion to admit fresh evidence as to matters which have occurred after the trial or hearing.  At the same time, the principle that there ought to be finality in litigation must be borne in mind, and evidence could not be admitted of every change that has occurred since the trial: Mulholland v Mitchell [1971] AC 666.

43.The applicable principles governing “evidence as to matters which have occurred after the date of the trial or hearing” under Order 59, rule 10(2)  can be summarized as follows[27]:

(1)  The Court of Appeal has a wide discretion in relation to admitting such fresh evidence but it should always be exercised sparingly with due regard to the need for finality in litigation: Hughes v Singh, The Times, 21 April 1989.

(2)  It is impossible to produce an exhaustive list of considerations relevant to the exercise of that discretion, but the following factors will always be material:

(a)  the extent to which the fresh evidence may affect the award of damages: the greater the extent, the more likely and ready the Court of Appeal should be to admit the evidence;

(b)  the time element: it is not necessary that the fresh evidence should emerge before the case would ordinarily reach the Court of Appeal, but the closer to the date of trial the more likely it is that the evidence will be admitted; and

(c)  the conduct of the parties: any inequitable conduct on the part of a litigant will plainly be relevant, and other conduct may also be relevant.

(3)  The evidence should be admitted in all cases where it would be an affront to one’s sense of fairness not to admit it.  In applying that test the court takes into account all the circumstances, before, during and after trial: Hughes v Singh.

(4)  The new evidence must substantially affect a basic assumption made at the trial: the matter is one of degree.

44.Bearing these principles in mind, we are of the view that the Australian Legal Opinion should be admitted[28].

45.First, the Australian Legal Opinion and Madam Ip’s Australian Application for ancillary relief both occurred subsequent to the Hearing and the Judgment.  Although Mr Marwah contended that Madam Ip could and should have obtained legal advice from her Australian lawyers before the OS and the Hearing and Judgment, the fact remains that Madam Ip’s application for ancillary relief was only formulated and taken out subsequently to the Hearing and the Judgment.  The Australian Legal Opinion was also not of a generic nature but was based specifically on the Australian Application as formulated in her Initiating Application.

46.In these circumstances, it is artificial and unrealistic to segregate the Australian Legal Opinion from the Australian Application.  In particular, as mentioned above, Madam Ip was only made aware just a week before the Hearing of Mr Cheung’s remarriage and his reliance on it in that he would be prejudiced by not being able to make any ancillary relief application in Hong Kong.  Given this, it is not unreasonable for Madam Ip not to have sought an Australian legal opinion earlier, and it is understandable why Madam Ip proceeded to make the Australian Application and obtain the Australian Legal Opinion after the Judgment.

47.Second, the Australian Legal Opinion substantially affects the basic assumptions at the Hearing and is material.  As explained above at [31], [35] and [37], the Australian Legal Opinion shows that (a)  it is possible for Madam Ip to obtain a transfer order of the Property, and (b)  Mr Cheung’s remarriage does not prevent him from making an ancillary relief application in Australia.  These matters affect fundamentally the Judge’s assumptions or foundations adopted in forming the views that Mr Cheung would suffer real prejudice if the OS was stayed while Madam Ip would not even if an order of sale was to be made.

48.Finally, the Australian Legal Opinion further puts into perspective the merits of the Australian Application (including whether leave and a transfer order would be granted), which is material to the present appeal.

49.In the premises, in the interest of justice and fairness, the Court should give regard to these substantial factual developments after the Hearing and the Judgment.  Accordingly, we allowed the Further Evidence Summons and granted leave for the Australian Legal Opinion to be admitted as evidence for the purpose of the appeal.

E.  DISPOSITION

50.For all the above reasons, we allowed the appeal and set aside the Order.  We also ordered that (a)  the OS be stayed pending the determination of the Australian Application, with liberty to restore before any judge of the High Court[29], and (b)  the total sum already paid by Madam Ip into Court pursuant to this Court’s order dated 5 January 2022 be released to Madam Ip.

51.As to costs, there is no reason why costs should not follow the event.  We therefore make a costs order nisi that Mr Cheung do pay the costs of this appeal, the costs of the Stay Summons and the Further Evidence Summons to Madam Ip, to be taxed if not agreed.

52.As to the costs in the court below, although the Judge had erred in refusing to stay the OS and making an order for sale, the appeal was allowed in part on the basis of the new evidence admitted on appeal. In the circumstances, we consider it to be just and fair that there be no order as to costs in the Court below.

Ms Lily Yu, instructed by Anthony Siu & Co, for the defendant

Mr Azan Marwah, instructed by Hugill & Ip, for the plaintiff