Lctd v. Ckmc
Read the full judgment text of FCMC 6340/2018 on BabelCite. This Family Court judgment was delivered on 22 July 2022 before His Honour Judge I Wong.
Matrimonial Proceedings – Maintenance Pending Suit – Legal Costs Provision – Consent Summons – Matrimonial Proceedings and Property Ordinance (Cap 192) – District Court – Interim Relief – The husband applied for maintenance pending suit and legal costs provision in a 17-year marriage with two sons studying in the UK. The wife opposed citing consent summonses, alleged wanton spending, and failure of disclosure. The court held the husband had sufficient liquid assets of approximately $2.674 million to cover living expenses for 20 months, thus declining the MPS application. However, the court found the husband satisfied the Currey test for legal costs provision due to a shortfall after retaining living expenses. The consent summonses were considered a factor but not a straitjacket given factual disputes regarding their formation. Orders made for legal costs provision of $202,500 per month and half costs of the application to the husband.
Legal issues: Maintenance Pending Suit Application · Legal Costs Provision · Effect of Consent Summons
Outcome: MPS application declined; Legal Costs Provision granted.
Cites 6 cases
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FCMC 6340/2018 [2022] HKFC 150 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 6340 OF 2018 ---------------------------- BETWEEN
--------------------------- Coram: His Honour Judge I Wong in Chambers (Not Open to Public) Date of Hearing: 7 June 2022 Date of Ruling: 22 July 2022 __________________ R U L I N G (Maintenance Pending Suit and Legal Costs Provision) __________________ 1.The marriage in question is approximately 17 years long, with 2 sons. They are aged 20 and 16 respectively and are receiving education in the United Kingdom. 2.The Petitioner husband (“the husband”) applies for (1) maintenance pending suit (“MPS”) in the sum of $132,500 and (2) legal costs provision in the sum of $2,581,900, or alternatively, $215,200 per month to be paid by the Respondent wife (“the wife”). 3.This is an interlocutory application for interim relief. It has been said by the Court of Appeal that reasons for the decision can be brief: Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759, at [31]. 4.It is not necessary to state the legal principles here. The principles have been set out by Hartmann JA (as he then was) in the leading case of HJFG v KCY (Maintenance Pending Suit) [2012] HKFLR 27. 5.The overriding principle is one of “reasonableness” which is to be considered objectively by the court having regard to all the circumstances of the case in question: see CWK v YCHS & CKY, FCMC 6082/2014 (date of judgment: 10 December 2015), at [26]. 6.It is trite that, in application of this kind, a broad brush approach should be taken. It is unnecessary to conduct a minute examination of the evidence. The Husband’s Case 7.The husband’s case is that:
The Wife’s Grounds of Opposition 8.The wife opposes the application. Mr Yim, who appeared together with Ms Yu, relied upon the following grounds:
9.I shall deal with the grounds of opposition in turns. (1) Wealth of Non-Matrimonial Nature 10.The wife said a big chunk of the parties’ assets, being the wife’s shareholdings in the Companies, are non-matrimonial and illiquid. I do not think this is relevant to the present application, being an application for MPS, before me. (2) The Husband’s Post-Separation “Wanton” Spending of About $10 million 11.The husband said, after separation, he tried to be on his own feet and invested about $10 million in two businesses (each about $5 million): (1) The Influencer Limited in Hong Kong and (2) the beauty salon in the Mainland. These two start-up businesses ended up not being successful and made a loss. 12.Mr Yim submitted it was the husband’s own choice to have injected $10 million into the businesses which, as of now, have no prospect of return. This is “wanton” or “extravagant” spending; as such, it is liable to be added back pursuant to Norris v Norris [2013] 1 FLR 1142. Further, having suffered loss of his own choice and still with about $4 million worth of assets in his pocket, it is entirely unreasonable for him to come to court for MPS. 13.The husband is already at the age of 53. Considering that he had worked for the Companies for 14 years (from 2004 to 2018) (on the husband’s version) or, with the blessing of the wife, he had been indolent (on the wife’s version) for so many years, it would take some time for him to get onto his own feet. It seems to me that, at a glance, the husband’s options in the labour market are rather limited. I shall return to this point when I deal with the husband’s earning capacity below. Suffice for me to say at this point is that, for the purpose of the present application, it cannot be said to be unreasonable on the part of the husband to try to establish his business/careers after having left the Companies. 14.As far as the loss in the Influencer Limited is concerned, at this stage there is an audited statement of the company in support of the husband’s contention. As for the loss in the beauty salon in the mainland, Ms Remedios fairly accepted that there is no documentary proof before me. This is a factor I should take into consideration. On the other hand, I do need to consider the scale of the wealth potentially involved. I come to the view that whether the husband suffered loss as alleged or not and, even if that was the case, whether the loss in the 2 businesses amounts to “wanton” or “extravagant” spending is fact-sensitive and has to be determined at trial. (3) The Husband’s Failure of Full and Frank Disclosure 15.The wife has 3 grounds here:
16.The wife said save for one account with the China Merchants Bank (“CMB-0508 account”), the husband failed to disclose his mainland bank accounts. 17.The husband accepted that he had failed to disclose some mainland accounts due to inadvertence; these accounts being inactive for some time. Be that as it may, it seemed these accounts only had a balance of RMB66,729 in total. The amount was not challenged by the wife.
18.The husband failed to disclose his security investment account with the China Merchants Bank (“CMB-7551 Account”). It was found that, said the wife, from January 2017 to 31 May 2018, there was a net outflow of RMB 4.114 million from the husband’s CMB-0508 account to this security account. Hence, there is at least RMB 4.114 million that the husband failed to disclose. In support, the wife prepared a schedule showing the flows of money between the CMB-0508 account and the CMB-7551 account between 16 February 2017 and 1 June 2018. Mr Yim made the point that it is unknown as to how much investments are there. 19.The husband said the CMB-7551 account is a sub-account of RMB-0508, which has already been disclosed in the husband’s Form E. There are no separate or independent statements for this account. All the transactions of the CMB-7551 account were reflected in the statements of CMB-0508 account. As I indicated at the hearing, I do not know whether this was the practice of the banking business in the mainland, or for that matter, the CMB, not to have separate statements for security accounts/sub-accounts to be issued. This issue has to be clarified at trial. 20.Further, more importantly, Ms Remedios pointed out that the net position of RMB 4.114 million was up to 1 June 2018 only when the husband left the Companies. The wife did not explain why that date was adopted as the cut-off date. Ms Remedios said the bank statements of CMB-0508 account produced by the husband were from 5 January 2015 to 21 December 2021, there is no reason why the wife did not go to the entries after that date and up to the end of December 2021 to show the latest net position. I agree. 21.For the above reasons, I am not able to come to any conclusion against the husband on this issue. This has to be dealt with at trial.
22.The wife said the husband’s reply affirmation where he updated his financial situation was done in a piecemeal and incomplete fashion. 23.Briefly stated, the wife is inviting the court to have a close examination on the documentary evidence produced by the husband and from there, arguing that the husband’s disclosure was woefully inadequate and deliberately piecemeal and incomplete. For instance, the husband produced a bank-in slip showing a deposit of $1,523,000 into his HSBC-888 account on 29 December 2021 as proof of sale of his Ferrari. The wife criticised that the slip did not show (a) whom the cheque was from, (b) whether that cheque indeed represented the sale proceeds of the car and (c) the fund flow of this sum – in particular – how much sum was paid out of the said HSBC account and where to after that. 24.In my view, one can always put things under a microscope and launch challenges from all directions. That appeared to be the approach that the court is invited to take. I decline to conduct a minute examination on the husband’s finances on the basis of these arguments. The husband had already paid around $3 million as legal costs from June 2019 up to the MPS hearing. From the husband’s Form E of 6 July 2020 up to his updated position as at 6 May 2022, it seems over these 23 months, his assets went down from $9,078,060 to $4,061,000. This represents about $218,000 per month for his living expenses and legal costs; and over the last 10 months, his assets have depleted by $2.8 million, ie on average $287,000 per month for his living expenses and legal costs. 25.In my view, this cannot be said to be unreasonable. (4) The Consent Summonses 26.In my view, this is the wife’s strongest ground. 27.Mr Yim placed much emphasis on the fact there have been 2 consent summonses dated 23 May 2018 and 14 November 2018 respectively for the disposal of the ancillary relief in the present proceeding, the second one being in replacement of the first one. 28.The 2 summonses are the same expect Recital “J”. In the first one the parties agreed at Recital “J” to share their sons’ expenses equally while in the second one, the wife agreed to pay for all the sons’ expenses. Both summonses provide that the parties’ claims against each other are to be dismissed (save and expect the financial provision for the sons). In other words, the wife does not have to pay anything to the husband upon their divorce and vice versa for the husband. 29.Mr Yim relied upon Mostyn J’s judgment in BN v MA [2013] EWHC 4250 where the learned judge said at [33]
30.Locally, HH Judge Melloy was referred to BN v Ma, supra, in the similar case of B, L v L, WS [2015] 1 HKFLR 255, FCMC 17190/2014 where she said at [14] that the appropriate approach in the circumstances is that the terms of the court’s MPS order should be as close to the pre-nuptial agreement as fairness dictates in the circumstances. The learned judge held, at [28], that the wife in that case should have appropriate level of interim support regardless of the Crossly application. 31.Mr Yim relied upon these two judgments to say that the husband should be bound by the consent summonses and so his application for MPS should be refused. 32.Both consent summonses were apparently prepared by T & Co., which, on record, were the husband’s solicitors in the present proceedings and the wife at that time was acting in person. The consent summonses were apparently lodged into court for approval by T & Co. 33.After the consent summonses had been lodged and before the court’s endorsement, the husband sought leave from the court to withdraw from the consent summonses and to file his application for ancillary relief (“the Withdrawal Application”). The husband’s case, as can be gathered from his home-made affirmation when he chose to act for himself in replacement of T & Co, is that the solicitors’ firm was arranged by the wife and he did not enter into the consent summonses voluntarily. 34.Ms Remedios submitted that in the present case there is a dispute of facts as to whether or not T & Co was arranged by the wife and/or whether there are any factors vitiating the consent summonses. Her instructing solicitors had raised requisitions on these but there was no reply. 35.In response, Mr Yim submitted that almost in every case concerning pre-nuptial agreement, there is bound to be some factual dispute. The fact that there is a factual dispute does not mean the court can ignore the terms of the nuptial agreement. Mr Yim referred to a previous affirmation of the wife stating that it was the husband who instructed T & Co. It must have been wrong for the husband to say he did not enter into the consent summonses voluntarily. Mr Yim emphasized the fact that the husband, being a Chartered Engineer, is a highly educated person. 36.As I mentioned above, the husband’s affirmation was a home-made one. It did not contain much particulars on the course of events and the facts in support of any vitiating factors. At the same time, I do take note that, the wife’s affirmation relied upon by Mr Yim, however, was not referred to by the wife in her affirmation in opposition nor the circumstances under which the consent summonses had been made were explained. A fair reading of the wife’s affirmation in opposition is that she did not rely upon the consent summonses as a ground. 37.The wife said the husband embezzled $45 million from one of the Companies (“the C Shenzhen”), apparently by virtue of his positon but at the same time she said the husband did not carry out any substantial task in the company. From 2003 to 2014, said the wife, the husband went to the office once or twice per week and he only stayed in the office or worked for the company, like on part-time basis, for 1-2 hours on each visit. As I see it, one wonders how such a casual figure without any substantial task could have surreptitiously amassed such a huge sum of money right before the wife’s eyes. In any event, Mr Yim accepted this is a bare allegation on the part of the wife. 38.The wife also said there were various transactions between the husband’s CMB 0508-account and a gentleman in the name of Cheung who is a director of a construction company in Shenzhen, being the main-contractor employed by the C Shenzhen for the fire service improvement project during 2015 and 2017. She said between October 2015 and November 2017, there was a net deposit of RMB 47,558,800 from Cheung to the CMB 0508-account. Mr Yim conceded he does not know whether there is any overlapping between the $4.114 million referred to in [18] above and the $4.5 million here. 39.In response, the husband said the personal bank accounts of the wife and his were sometimes used to handle company-related dealings on the company’s behalf. This was very common and was the company/family practice, and there would be a certain degree of intermingling of funds within their bank accounts. 40.Ms Remedios rightly pointed out that there were no similar transactions after the husband had left the Companies on 31 May 2018. She contended this supports the husband’s assertion that the account was part and partial of a business account. 41.It is significantly to note that the wife said in her Form E that it was upon her discovery of the fraud on the part of the husband that led to the divorce and their agreement to divorce on the terms of the consent summonses. More than 4 years have lapsed since November 2017, there should be more than sufficient time for her to unearth what happened. Yet as at 8 April 2022 when the wife made her affirmation in opposition, she was only able to say the situation is “highly suspicious and wholly inappropriate” as to why there was such a substantial deposit. The wife’s allegation is of a serious criminal nature. Again, this has to be seen in light of the wife’s assertion about the husband’s insignificant role in the Companies. 42.At this stage, in light of the above observations, I consider what the husband said is not unbelievable. 43.Most importantly, it should not be forgotten that the wife initially opposed the Withdrawal Application. She later withdrew her objection and consented to leave being granted for the husband to file his application for ancillary relief and a consent order was made on 5 November 2020 accordingly. There is thus no Crossley Application before me. 44.As commented by Rayden and Jackson on Relationship Breakdown, Finances and Children at [12.163], in the context of the matters listed under section 7, Matrimonial Proceedings and Property Ordinance (Cap 192), “the existence of an agreement is a very important piece of conduct and a very important factor in considering what is the just outcome of the proceedings”; see also Edgar v Edgar [1980] 3 All ER 887, (1981) 2 FLR 19. 45.Thus, the consent summonses would be one of the factors that the court may need to take into consideration at trial. 46.LYCP v JEK & Anor [2019] HKCFI 1588, HCMC 3/2018 is a case that does not involve factual dispute over a pre-nuptial agreement. Anthony Chan J described the agreement in that case as “unvitiated”, ie the agreement not being tainted by any vitiating factor, eg, lack of full disclosure of assets prior to the agreement being made. As regards the place of an unvitiated nuptial agreement in a Section 7 exercise. The learned judge said, at [130] that,
47.BN v MA, supra, is no doubt of persuasive authority. I agree with Mostyn J’s views as quoted at [29] above. It is important to note that the learned judge did not say the court should apply the terms of the pre-nuptial agreement as if it were a straitjacket. He merely said the court should apply the terms “as closely as practically as it can” and “provided that (the applicant) is not left in any real predicament of need”. It is also important to note that in that case (and also in the case of B, L v L, WS, supra) there was proposal from the husband offering interim relief. Needless to say, at the end of the day, it is a matter of discretion to be exercised by the court in terms of fairness to both parties. 48.Therefore, on the above analysis and given the circumstances of this case, I am not convinced that the husband should be deprived of MPS merely because of the consent summonses. 49.I now turn to other considerations relevant to the application. The Family’s Standard of Living 50.While the parties agree that the family enjoyed a very comfortable standard of living, each has his/her own interpretation as to what that means. I agree with Ms Remedios that this is largely a matter of semantics. On the materials before me, I am satisfied that the wife tried to tone down the standard of living during the marriage. The objective fact is the family had the use of 3 cars including a Ferrari. This is telling as to the standard of living enjoyed by the family during the relationship. The wife’s “current monthly expenses” as reported in her Form E of January 2021 are as much as $861,520. She is driving a Lamborghini, claimed to be a gift from her father, and a Mercedes Benz. 51.On the materials before me, I have no doubt that the husband’s version of the parties’ standard of living is closer to the truth. The Wife’s Financial Ability 52.In the case of C v. F (FCMC 1701 of 2000), HH Judge Bruno Chan said:
53.In the present case, the focus is on the wife’ ability to pay. 54.The wife said she has an income of around $200,000 per month. 55.I think it is not in dispute that during the marriage the family relied substantially upon the drawings from the Companies. The couple’s salaries, from whatever position they had occupied, were insignificant. The drawings are what the husband does not have now. 56.The wife reported in her Form E that she has been spending $860,000 per month. Despite the wife’s claims to be spending $860,000 a month, in opposing to the husband’s present application, she gave the explanation that after deducting the sons’ expense and the expenses relating to her residence, the entertainment/presents/family and business meals’ and the costs of her Lamborghini, her monthly expenses are merely about $188,000. In other words, the wife is saying these and those are not her own consumptions. With respect, I fail to follow her logic. The wife has been legally represented. The Form E is exactly for the purpose of reporting a party’s expenses and the maker has to give a “Statement of Truth”. 57.The wife also said the rental income of the Companies dropped drastically since early 2020. She therefore had the plan of selling her Lamborghini and not to continue to lease the present residence and would move to reside with her younger brother. There was however no update on the position at the MPS hearing. In my view, this is a mere “say-so” of the wife. 58.The husband said the rental income of the Companies are about RMB 6 to 7 million per month, while the wife said it was about RMB 2 million only. Be that as it may, I accept the husband’s submission that the wife’s cash position maintained largely the same (at about $7.5 million) between the time when she filed her Form E in January 2021 and when she filed her Answer in October 2021. 59.I do not accept the wife’s assertion that the global pandemic has affected her ability to pay. I have no doubt that she has the ability to pay. The Husband’s Financial Ability 60.The husband holds a masters’ degree and is a Chartered Engineer. I am aware that the husband used to teach at the City University of Hong Kong but that was at least 18 years ago. At the same time, I am also aware that the husband was not in the labour market for a substantial period of time. 61.I accept that, same as the wife, the husband must have some earning capacity. Yet, I need to bear in mind that the husband is already 53 years old. By the time he left the Companies, he had been out of the labour market for 14 years. That was the period when he was at his prime age. At a glance, it appears that the husband’s options are rather limited. The earning capacity of the husband is less obvious in the circumstance of this case. The Husband’s Monthly Needs 62.The husband gave the breakdown of his monthly needs in his supporting affirmation; the total is $132,450, $66,000 being his General Expenses and $66,450 being Personal Expenses. This includes the cost of access trips to visit the sons in the UK and the incidental expenses. The Wife said, in her affirmation, that she is prepared to assume the husband needs $97,450 only. Mr Yim, on her behalf, submitted that the husband actually needs no more than about $80,000. Significantly, this sum is even less than what the wife claimed to have been spending on Clothing and Shoes and Entertainment/Presents, totalling $100,000. 63.I am aware, as pointed out by Mr Yim, that after having sold the Kwun Tong apartment, the husband does not have to pay mortgage payments now; and he is paying rental at a reduced rate for a smaller flat, etc. 64.Financial needs have to be generously interpreted. Considering the marital standard of living and taking a board brush approach, I assess the husband’s needs at $130,000 per month. This is well below what the wife is enjoying. Should MPS be Payable? 65.For the above reasons, I am against the wife’s grounds. However, but for one reason that I will come to in the following paragraph, I would have granted a MPS Order in favour of the husband at this stage. In so saying, I am fully aware that there is no “pre-condition” as such that an applicant has to be penniless before he or she is entitled to MPS. It is all a matter of fairness in the circumstances of the case. An example can be found in CWK v YCHS & CKY, supra. 66.The husband’s current liquid assets are worth about $3.174 million, comprised of bank balance of $120,000 and RMB 45,329 and stock investments of about $3 million. The husband said out of these $3 million, $1 million are “penny stock” that cannot be easily liquidated without huge discount. The other assets of about $887,000 are his insurance policy, pension and a 2nd hand Porsche car. 67.I am prepared to accept the husband’s assertion that there are penny stocks. I assume, for the purpose of the present exercise, that the husband has to give, say, a 50% discount for the liquidation of these stocks. This would mean the husband would still have about $2.674 million’s worth of liquid assets for his living expenses ($3.174 million - $0.5 million). This would be sufficient for 20 months or so. For this reason, I decline the husband’s application. 68.With the conclusion that I have come to, I do not have to deal with the husband’s ground that the wife has been delaying the proceedings as much as she can. All I wish to say is that the progress of these divorce proceedings has been very slow; and they have become more complicated because of the intervention from the wife’s siblings, and needless to say, more costly than expected when it started. 69.The MPS issue may have to be re-visited as and when appropriate if there is a change in the circumstances, especially if the husband’s financial situation deteriorates. Legal Costs Provision 70.Counsel agreed the relevant authority is Currey v Currey [2007] 1 FLR 946. 71.It is worthy to note that in BN v MA, supra, the fact that there was a pre-nuptial agreement was not relied upon in considering whether or not legal costs provisions order should be granted. 72.The wife’s ground of objection is that the husband is still in possession of assets of $4 million. This has to be examined as follows. The Husband’s Estimate of Costs 73.The wife’s Form H stated that her estimated costs incurred up to and including the MPS hearing are $2,376,000 and the estimated costs after the MPS hearing up to and including the FDR are $1,020,000. 74.As for the husband, substantial costs were spent on the children’s matter. The husband’s estimated costs incurred from June 2019 up to and including the MPS hearing are $3,319,900 of which about $307,600 was “billed but unpaid”. The estimated costs after the MPS hearing up to and including an anticipated Tri-parte FDR are $1,849,000. 75.The wife said she does not own the entire 35% shareholdings that are registered under her name. She owns 7% only; the other belonged to her 4 siblings. They have been joined as Interveners in the present proceedings. It means the husband has to face up to 5 opponents. The issues have not been agreed and have been fought at every stage. I also need to take the potential size of the assets involved into account. As of now, there is still no sight of any report on the valuation of the Companies. The husband has the carriage of these proceedings; because of these he would have to incur higher costs. 76.For the above reasons, I consider the husband’s estimate is realistic. Indeed, I tend to agree with Ms Remedios that the estimated costs stand on the conservative side. 77.Therefore, the husband would need $1,849,000 for his legal costs up to FDR, on the top of that, there is some “billed and unpaid work” of $307,600, totalling $2,156,600. 78.I share Ms Remedios’ doubt as to whether the parties would be in a position to have a FDR by the end of this year. 79.I have assessed the husband’s needs at $130,000 per month. I consider it is fair that the husband is to retain, say, $2,340,000 for his living expenses. Effectively this would mean a period of about 18 months ($130,000 X 18 months). Probably, this should last until the conclusion of the proceedings and would leave $334,000 ($2,674,000 - $2,340,000) for his legal costs. 80.On that basis, there would be a shortfall of $1,822,600 for his legal costs up to and including FDR. I round it down to $1,822,500. On the evidence before me, I agree that the husband satisfied the requirements under the Currey test, ie, the husband has no assets, or none that can reasonably be deployed. This would have to be met by the legal costs provision payable by the wife. As of now, when the FDR would happen remains an open question. Assuming that the FDR is to take place in 9 months’ time, this would mean a sum of $1,822,500 payable by 9 equal monthly instalments of $202,500 each. 81.I shall revisit the schedule when the situation becomes clearer. Backdating 82.Ms Remedios seeks backdating of the legal costs provision. It is not in dispute that the court has the power to do so. It may backdate the MPS to the date of the petition or the date of the MPS application. As I have already taken the “billed but unpaid work” into account, I do not think this is appropriate. Orders 83.For the above reasons, I make an order that the wife pays the husband a legal costs provision by way of interim maintenance in the sum of $202,500 per month; the 1st payment to be made on 1st August 2022 and thereafter on the 1st day of each and every month up to an including the month when the FDR concludes. Costs 84.The husband is half-success in his application. It seems to me that, taking a board brush approach, he should be entitled to half of the costs of the application, including costs reserved and with counsel certificate. The costs are to be assessed summarily. The husband’s solicitors are to lodge and serve a Statement of Costs within 14 days and the wife’s solicitors may lodge and serve a written reply within the next 14 days. Such written reply should not be more than 2 pages (printed on A4 size paper, 1 ½ line spacing and at font 14). I make an order nisi accordingly.
Ms Corinne Remedios, instructed by Ip & Heathfield, appeared for the petitioner Mr Eugene Yim and Ms Lily Yu, instructed by KL Chan & Co, appeared for the respondent | |||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 6340/2018