Tkm also known as Wtkm v. Whg

FCMC 5723/2021

[2022] HKFC 83

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 5723 OF 2021

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Before Coram:  Deputy Judge R. Chow (Paper Disposal)

Date of Written Submissions:  25 October 2021

Date of Judgment:  8 April 2022

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DECISION

( Maintenance Pending Suit/ Interim Maintenance )

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BACKGROUND

1.This is an application by the Petitioner Wife for maintenance pending suit (“MPS”) and interim maintenance (“IM”) against the Respondent Husband (“H”).

2.W and H were married in 2017 with one child (“the Child”) born in 2020.

3.W petitioned for divorce on 11 June 2021 on ground of H’s unreasonable behaviour. W was granted interim care and control of the Child with defined access to H at the First Appointment hearing.

4.By a summons filed on 17 August 2021, W applies for HK$100,805 per month being HK$53,832 as MPS for herself and HK$46,973 as IM for the Child.

5.By the Order made on 23 August 2021, upon H’s undertaking to continue to pay for the Child’s playgroup fees each month, H was ordered to pay W a sum of HK$30,000 each month on an interim interim basis pending determination of W’s application for MPS and IM.

6.It is the case of H that the claim by W is excessive and not supported by documentation. H suggested that the order for MPS and IM should maintain at the level of HK$30,000 under the Interim Interim Order in addition to H’s paying of the Child’s playgroup fees.

LAW

7.Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”) for maintenance pending suit provides that the court may make an order for such periodical payments for maintenance and for such term it thinks reasonable.

8.It is trite law that such applications are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a full ancillary relief hearing when there is then the opportunity to achieve fairness by means of set off. If there is any overpayment or underpayment, it can be rectified at a final ancillary relief hearing.

9.Section 5 of the MPPO applies to interim maintenance for the Child, the factors set out in section 7(2) are to be considered. Again, a broad-brush approach should be adopted. (LAML v TCCY, (unrep.; CACV 75/2004, 13 September 2004))

10.The following principles were set out in the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 with respect to maintenance pending suit/interim maintenance applications:

a.  The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.  A very important factor in determining fairness is the marital standard of living.

c.  In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

d.  Where the affidavit or form E disclosure by the payer is obviously deficient, the Court should not hesitate to make robust assumptions about his ability to pay. The Court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such situation, the Court should err in favour of the payee.

REASONABLE NEEDS OF W AND THE CHILD

Marital Standard of Living

11.The reasonable needs of W and the Child should be considered taking into account of the living standard of the family during the marriage.

12.H is now aged 41 and a merchant in wine and beverages trade. He has shareholding and directorships in no fewer than 7 companies. He has a basic income of HK$18,000 per month from the company (“AR”) of which he is the sole shareholder and director.

13.W is now aged 35 and a housewife. She used to work as a sales director of AR with a salary of HK$28,500 per month. She tendered her resignation in June 2021 shortly after her filing of the divorce petition. She decided to look after the Child full-time as he was still little. She currently has only limited income from teaching short courses.

14.It is the case of W that the family enjoyed a very comfortable standard of living during the marriage. H’s parents provided free accommodation, food, household expenses and utilities. Until December 2020, the family lived in a 1,800 sq ft duplex penthouse (“Flat A”) owned by H’s parents in Mid-Levels, Hong Kong. W and the Child later moved to another single storey flat (“Flat C”) owned by H’s mother in the same building in December 2020 after renovation. H, however, did not move into Flat C with W and the Child.

15.H and W have a joint bank account where H would make regular deposit and W was allowed to freely make withdrawal.

16.Until around September 2020, H and W received a monthly sum of HK$25,000 as the net rental income of Flat C deposited into the joint account of H and W from H’s mother.

17.W had a supplementary credit card from H with a credit limit of HK$50,000 that has now been cancelled.

18.Having considered the Form E and evidence respectively filed by parties, my overall impression is that the family enjoyed a very comfortable living standard during their marriage.

General Expenses

Rent

19.W moved out of Flat C and moved to a 2-bedroom serviced apartment in Hung Hom with the Child in June 2021 shortly after filing of the Petition. W now claims HK$23,000 for rental of a flat in Kornhill or a child friendly neighbourhood.

20.W explained in her affirmation that she moved out of Flat C because H had repeatedly reminded her that her stay at Flat C was at the generosity of H’s mother. She moved to the serviced apartment only as a temporary measure. Based upon her research, market rental for a 600-700 sq ft flat in Taikoo or Hung Hom would be around HK$24,000-26,000. The rental of H’s flat was higher in the sum of HK$26,500 in Mid-levels.

21.H submitted that it was W’s decision to move out when she could have chosen to stay at Flat C. As the rent for W’s present accommodation was HK$16,700, that should reflect her current accommodation need.

22.It is true that expenses on rental could have been saved if W decided not to move out of Flat C, but looking from another perspective, Flat C could be rented out to generate income. According to W’s research, the market rental of Flat C should be about HK$32,000. When Flat C was rented out in the market before December 2020, there was a rental of HK$25,000 paid to H and W by H’s mother, there is no evidence that similar arrangement cannot be made again by H’s mother.

23.In regard to financial assistance given by a third party, Mostyn QC (as he then was) said the following in TL v ML (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at [125 (v)]:

“Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial (M v M).”

24.Alternatively, H could move to Flat C saving him the rental of HK$26,500 per month.

25.Considering Flat C as the accommodation for W and the Child during the marriage, I accept that W’s stay at the serviced apartment is only a temporary measure and it is not unreasonable for W to have an accommodation at a budget of HK$23,000. Should there be any overpayment, adjustment can be made at the trial of ancillary relief. I would accept the claimed amount as reasonable.

Utilities

26.This claim of HK$3,000 includes electricity, gas, rates, telephone & water. W clarified that the expenses on utilities was about HK$2,000 per month at the serviced apartment that included only electricity, telephone and water. Since I have accepted that W and the Child should be entitled to move from the serviced apartment to a long-term accommodation, I consider the estimate of HK$3,000 to be reasonable.

Food

27.W claims a total sum of HK$18,600 for food with breakfast for HK$4,000, lunch for HK$6,200, dinner for HK$7,600 and fruits for HK$800.

28.H submitted that the figures are exaggerated and unsupported by receipts. H made reference to credit expenses of W for the first six months of 2021 in supermarkets, the expenses amounted to only HK$6,833.50 not counting possible cash or octopus payments.

29.I agree with H that the amount claimed to be excessive, there is also no clear documentation for such level of expenditure on food from W. W explained that the Child has skin allergies to certain ingredients and she would buy healthy and organic food for the Child. Even so, I still think the claim for HK$18,600 is excessive, I accept the sum of HK$8,000 to be reasonable.

Household Expenses

30.H’s comment on this item is that there is no breakdown and should be included in the rental for the serviced apartment. Given that I have accepted W’s claim on rent, W is entitled to claim this item and I consider the claim of HK$2,000 to be reasonable.

Car Expenses

31.W claims HK$7,000 consisting of HK$3,500 for car park rental, HK$1,250 for car insurance, HK$500 for car wash, HK$1,250 for petrol fees and HK$500 for tunnel and parking fees.

32.H said W should be seldomly driving this car and there was lack of documentary proof of expenses.

33.While W does not have all the receipts to support the amount claimed, the breakdown for this item is quite normal. I consider the HK$6,000 to be a reasonable sum for this item.

Insurance Premia

34.W has produced statements for 3 insurance policies that she identified in her Form E in support of this claim of HK$1,600. I would allow this item.

Domestic Helper

35.W’s claim for this item is HK$6,000, however, salary of W’s domestic helper is HK$5,100 per month only. W said the additional HK$900 per month is for miscellaneous fees such as agency fees, air tickets and holiday/extra work bonus. These fees are either not recurring or not supported, I would allow HK$5,100 only for this item.

Others

36.This item comprises of services of Netflix, Spotify, Now TV, domestic helper’s insurance and WiFi. H complains that no receipts have been provided. In my view, these services are common nowadays, however, I consider HK$600 to be reasonable as opposed to the claimed amount of HK$800.

Personal Expenses

Meals Out of Home

37.The amount claimed here is HK$6,400 based on 2 days per week/ 8 days per month. H’s comment on this item is that it is unsupported by documents.

38.According to H’s analysis based on W’s credit card statements in the past 6 months, it is concluded that the spending on this item should be about HK$3,600 per month only. H further suggested that the meals out should be work related, since W is not currently working now, the budget for this should be substantially lower. This item could also overlap with the item of Food under General Expenses.

39.While I do not think I can make any conclusion on H’s comments at this stage based on the materials before me, I am of the view that the claimed amount is excessive, a more reasonable sum should be HK$4,000 per month.

Transport

40.This claim of HK$2,500 is composed of taxi fare and MTR travel by W and the domestic helper.

41.I do not think W has supplied sufficient proof to justify the amount claimed, I consider HK$1,500 to be reasonable.

Clothing/Shoes

42.H said there was no proof by W in support of her claim of HK$3,000. I consider HK$2,500 to be reasonable for this item.

Personal Grooming

43.W gave a breakdown of this item of HK$3,800 to include haircut, facial treatment, manicure and pedicure and eyelash treatment.

44.While as H said there was no proof in support of this claim, I consider the amount of HK$3,800 to be reasonable.

Entertainment/Presents

45.W’s claim for this item is HK$3,000. I agree with H that W has not shown why she should be entitled to this amount. I consider HK$1,000 to be reasonable.

Medical/Dental

46.W said this item of HK$2,000 was for Chinese medicine and flu etc. W only produced Chinese medicine doctor proof of HK$1,500 per month for Chinese medicine for treatments following her giving birth of the Child. I am ready to allow only HK$1,500 for this item.

Insurance Premia

47.H argued that insurance policy with saving element should not be allowed. I do not share the same view. I would allow the claimed amount of HK$1,632 here.

Others

48.This item is for nutrition products. The claimed amount of HK$500 is not unreasonably high, I am prepared to accept this amount.

Child Expenses

School Fees

49.Under the Order made on 23 August 2021, H made undertaking to continue to pay for the playgroup fees each month for the Child.

50.H does not dispute the amount of HK$6,284 claimed by W. H expressed that there is no dispute that the cost of the Child’s ongoing playgroup will be met by H and this item is therefore not necessary.

51.However, for avoidance of doubt I still consider it better that the item of HK$6,284 be covered in an order as H has not expressly offered to make a fresh undertaking.

Transport to Playgroup

52.The calculation for this item is based on 8 days per month by taxi/private care. H suggested a lower sum by travelling by MTR.

53.I accept it is reasonable for the Child’s travelling by taxi especially during the pandemic. I therefore allow HK$520 for this item.

Medical/Dental

54.H argued that there were no recurring expenses on this item. W explained that the Child has allergy towards certain ingredients and had fever before. The Child has prescribed face cream from his pediatrician for HK$380 per month.

55.Having considered W’s explanation, the sum of HK$2,000 per month is still considered to be too high. I would allow HK$800 per month.

Entertainment/Presents

56.W claims HK$1,000 while H considers HK$500 to be enough. I accept HK$1,000 to be reasonable.

Clothing/Shoes

57.H has not made comments on this item. However, based on the figure provided by W in her answer to H’s questionnaire, only HK$1,000 per month was incurred. I allow the sum of HK$1,000.

Insurance Premia

58.H disputes the need of 2 insurance policies for the Child. However, as the claimed amount of HK$669 is not excessive, I will allow this amount.

Others

59.This item consists of milk powder, diaper and snacks. W claims HK$4,000, H considers HK$2,000 to be more appropriate. My view is HK$3,000 per month should be reasonable.

Summary

60.For ease of reference, the items I have allowed are summarised as follows:

General Expenses

Rent	HK$23,000
Utilities	HK$3,000
Food	HK$8,000
Household Expenses	HK$2,000
Car Expenses	HK$6,000
Insurance Premia	HK$1,600
Domestic Helper	HK$5,100
Others	HK$600
Total	HK$49,300

Personal Expenses

Meals out of home	HK$4,000
Transport	HK$1,500
Clothing/Shoes	HK$2,500
Personal Grooming	HK$3,800
Entertainment/Presents	HK$1,000
Medical/Dental	HK$1,500
Insurance Premia	HK$1,632
Others	HK$500
Total	HK$16,432

Children’s Expenses

Schools Fees	HK$6,284
Transport to Playgroup	HK$520
Medical/Dental	HK$800
Entertainment/ Presents	HK$1,000
Clothing/Shoes	HK$1,000
Insurance Premia	HK$669
Others	HK$3,000
Total	HK$13,273

61.On a broad-brush approach, I apportion half of the General Expenses to W and half to the Child. For W, her share of the General Expenses allowed is HK$24,650 and the Child’s share is HK$24,650.

62.MPS for W should therefore be HK$41,082 (ie. HK$24,650+HK$16,432) to be round up to HK$41,000.

63.IM for the Child should be HK$37,923 (ie. HK$24,650+HK$13,273) to be round up to HK$38,000.

W’S ASSETS AND EARNING CAPACITY

64.H submitted that W has asset of over HK$1 million in her bank account and over HK$1 million in her securities account and she has earning capacity and should be working. W should be responsible for her own expenses and contribute to the Child’s expenses.

65.W decided not to work as she wanted to take care of the Child full-time in the meantime, considering the young age of the Child, I am unable to say that her decision was unreasonable. Although she used to work at AR, she had only 2 working days and flexible hours as AR was run by H. It is unlikely that W would be able to find another job with such flexibility to let her spend enough time with the Child.

66.It is further H’s case that W has not made full disclosure on her new solely owned business set up only 3 months before she resigned from AR and the company owned by her friends of which she was once a director. H submitted that W was not truthful about her having no plan to work as alleged.

67.W explained that her new business had no business activity and that her friends made her a director for her advice in the liquor trade and to set up the company with no remuneration.

68.What H has is just suspicion, there is simply no solid evidence to support H’s allegations. I am unable to reach any conclusion or draw any adverse inference against W at this stage.

H’S ABILITY TO PAY

69.H asserted in his affirmation that the 2 households need to be supported by his salary of HK$18,000 when W refused to work.

70.H purported to have loans over HK$1 million from his father for his 20% shareholding in one of the companies.

71.While H purported that the current value of his shareholding in various companies is in negative value of over HK$7.5 million, all these companies are limited companies. It is not said that any of these companies are going to be wound up anytime soon. Before further assessment, it is yet to be seen how they are personal liabilities of H.

72.It is W’s case that H had not made full disclosure of his spending and substantial amount of deposits from family, premium wine collection, family trust fund and properties held by companies of which H has shareholding. Nonetheless, W conceded that this is not the time to ask this Court to resolve this matter at this stage.

73.H admittedly has over HK$1 million in his bank accounts and over HK$3.36 million in his securities accounts as disclosed in his Form E, he should have enough liquid assets to pay MPS and IM.

74.H’s total monthly expenses as reported in his Form E were the sum of HK$112,933 per month (including an interim maintenance of HK$25,000 and child expenses of HK$12,800). His lifestyle and standard of living are clearly not compatible with someone who ought to be in financial difficulties.

75.Based on the materials before me, I am satisfied that H has the ability to pay MPS and IM.

BACKDATING

76.W asks that MPS and IM be backdated to the date of the Petition.

77.The court has a very wide power, including a power to backdate the order for an award. The overall objective is to achieve a fair outcome.

78.The application date on 17 August 2021 for MPS and IM is close to the date of the Petition on 11 June 2021. There is little prejudice that W should have suffered, my view is that the fair outcome is that the present order should take effect only from the date of W’s Summons on 17 August 2021.

ORDER

79.In the present application, neither party is considered totally successful as their respective proposed figures were not accepted by me. By reason of the foregoing, I make the following orders:

(a)  The Respondent shall pay maintenance pending suit to the Petitioner in the sum of HK$41,000 per month and Interim Maintenance to the Petitioner for the Child of the Family in the sum of HK$38,000 per month to be backdated to the 1^st day of succeeding calendar month following 17 August 2021 and to be paid on the 1^st day of each calendar month thereafter until further order;

(b)  Credit be given to any sums that the Respondent has paid to the Petitioner from 17 August 2021 onwards; the difference (if any) shall be paid within 14 days from the day of this Order;

(c)  There shall be an order nisi to be made absolute in 14 days that costs of the Petitioner’s Summons filed on 17 August 2021 be in the cause of the claim for Ancillary Relief.

Ms. Bonnie Y.K. Cheng instructed by Chaine, Chow & Barbara Hung, Solicitors for the Petitioner

Mr. Peter Barnes instructed by Withers, Solicitors for the Respondent