Warren Gary Lichtenstein v. Annabelle Sarah Bond and Another

HCA 1545/2021

[2022] HKCFI 2781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1545 OF 2021

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Before:  Master Gary C C Lam in Chambers (Open to Public)

Dates of Written submissions:  11 July 2022, 19 August 2022, 2, 8, 9 September 2022

Date of Decision:  14 September 2022

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D E C I S I O N

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INTRODUCTION

1.This is the 1^st Defendant’s application to strike out the Plaintiff’s claim and dismiss the Plaintiff’s action as against her, on the ground of, inter alia, Henderson abuse of process.

2.The Plaintiff is the natural and lawful father of “ILB”, born on 31 August 2007 (the “Minor”).

3.The 1^st Defendant is the natural and lawful mother of the Minor. The Plaintiff and the 1^st Defendant were involved in an on-and-off romantic relationship from February 2006 to February 2007 when they separated. They never married.

4.The 2^nd Defendant was involved in a romantic relationship with the 1^st Defendant from around 2008 until around January 2017.

PLAINTIFF’S CLAIM

5.In order to appreciate the Plaintiff’s claim, it is necessary to quote extensively the Amended Statement of Claim:-

“4. At all material times, the 2^nd Defendant owned and operated a bank account at JP Morgan Chase Bank NA, which is either (a) held in the joint names of the 1^st and 2^nd Defendants; or (b) held in the name of the 2^nd Defendant but operated by the 2^nd Defendant for the joint benefit and use of the 1^st and 2^nd Defendants (the “JP Morgan Account”).

…

B. Wrongful acts carried out by the 1^st and 2^nd Defendants against the Plaintiff’s interests

7. Based on investigation carried out by the Plaintiff to date (which is presently ongoing), it transpired that the 1^st and 2^nd Defendants had carried out a series of wrongful acts against the Plaintiffs interests (the "Wrongful Acts") to be particularized hereinbelow.

8. Pending discovery of documents and further investigation, the Plaintiff pleads the best particulars of the Wrongful Acts to the best of his knowledge and understanding at present…

PARTICULARS OF WRONGFUL ACTS CARRIED OUT BY THE 1^ST AND 2^ND DEFENDANTS AGAINST THE PLAINTIFF’S INTERESTS

9. Unbeknownst to the Plaintiff, sometime between around July 2013 and around February 2017 (the "Period"), the 1^st and 2^nd Defendants conspired together and formulated an agreement and/ or arrangement with the common intention of defrauding the Plaintiff and/or to injure the Plaintiff's economic interests, upon which:

(1) The 1^st Defendant (acting on behalf of the 1^st and 2^nd Defendants), who at that time received periodic payments from the Plaintiff in the form of interim maintenance specifically for the benefit of the Minor pursuant to the Order of Deputy High Court Judge B. Chu (as she then was) dated 28 June 2013 in HCMP 489/2013, would retain such monies instead of utilizing the same to cover for the maintenance expenses of the Minor;

(2) At the same time, the 1^st Defendant (acting on behalf of the 1^st and 2^nd Defendants) would continue to receive the said periodic payments of interim maintenance from the Plaintiff under the false pretext that the said monies were required by the 1^st Defendant to cover for the maintenance expenses of the Minor; and

(3) Subsequently, the said monies (which were transferred from the Plaintiff to the 1^st Defendant solely for the purpose of covering for the maintenance expenses of the Minor) would be transferred away and dissipated to be used for the joint benefit and use of the 1^st and 2^nd Defendants personally, as opposed to being used for the maintenance expenses of the Minor.

(the “False Expenses Conspiracy”)

10. In execution and/or furtherance of the False Expenses Conspiracy:

(1) During the Period, the 1^st Defendant (acting on behalf of the 1^st and 2^nd Defendants) received periodic monthly payments and/or lump sum payments from the Plaintiff in the total sum of HKD 16,220,633.26 (the "Plaintiff's Monies") as particularized in Schedule 1 herein which were transferred by the Plaintiff to the 1^st Defendant for the specific purpose of covering for the maintenance expenses of the Minor and nothing else;

(2) Between 8 October 2015 and 21 February 2017, after receiving the Plaintiff's Monies, the 1^st Defendant transferred and dissipated the total sum of HKD 13,739,168.26 (the "HKD 13,739,168.26 Sum"), which comprised of and originated from the Plaintiff's Monies, across 8 tranches as particularized in Schedule 2 herein (the "Transfers"), to the JP Morgan Account for the joint benefit and use of the 1^st and 2^nd Defendants personally;

(3) At all material times, the 1^st Defendant did not utilize any part of the HKD 13,739,168.26 Sum for the specific purpose of covering for the maintenance expenses of the Minor.”

11. By virtue of the Transfers and dissipation of the HKD 13,739,168.26 Sum to the JP M organ Account in execution and/ or furtherance of the False Expenses Conspiracy:

(1) The HKD 13,739,168.26 Sum, which comprised and originated from the Plaintiff's Monies (transferred by the Plaintiff to the 1^st Defendant for the specific purpose of covering for the maintenance expenses of the Minor), was never used by the 1^st Defendant for the said specific purpose;

(2) The HKD 13,739,168.26 Sum, which comprised and originated from the Plaintiff's Monies (transferred by the Plaintiff to the 1^st Defendant for the specific purpose of covering for the maintenance expenses of the Minor), was instead converted by the 1^st and 2^nd Defendants into funds for their own personal benefit and use; and

(3) The Minor was wrongfully deprived of bene fitting of usage of the HKD13,739,168.26 Sum.

12. Insofar as may be necessary, the Plaintiff shall rely on inter alia paragraph 52 of the Decision of Hon. B. Chu J dated 30 November 2017 in HCMP 489/2013 which it was recorded that it was not disputed between the Plaintiff and the 1^st Defendant that the HKD 13,739,168.26 Sum ((came from the amounts paid by [the Plaintiff] for the benefit of [the Minor].”

6.According to Schedule 1 to the Amended Statement of Claim, the Monies, and thus the HKD13,739,168.26, consist of the payments made pursuant to court orders in Hong Kong (as shall be explained below) and New York, for maintenance of the Minor, arrears of maintenance and costs of enforcement to secure such maintenance for the Minor when the Plaintiff was in default of an order made in Hong Kong in the 2013 Judgment (as defined below).

7.The Plaintiff then goes on to plead, inter alia, that the 1^st Defendant intentionally concealed the facts that the HKD13,739,168.26 Sum would not be used for the specific purpose of covering the maintenance expenses of the Minor and the 1^st Defendant, when receiving the Monies, intended and/or knew that the same would not be used for such specific purpose. He further pleads that the 2^nd Defendant “played a material role in the False Expenses Conspiracy by allowing the 1^st Defendant to deposit the HKD13,739,168.26 Sum into the JP Morgan Account, and that the 1^st and 2^nd Defendants derived substantial financial benefit from the HKD13,739,168.26 Sum.

8.Based on the above pleas, the Plaintiff pleads a number of causes of action against the 1^st and 2^nd Defendants, namely:-

(1)  Unlawful means conspiracy between the 1^st and 2^nd Defendants;

(2)  Conspiracy between the 1^st and 2^nd Defendants to injure the Plaintiff’s economic interests;

(3)  Restitution of the HKD13,739,168.26 Sum from the 1^st and 2^nd Defendants;

(4)  Unjust enrichment/money had and received by the 1^st and 2^nd Defendants;

(5)  Constructive Trust / Liability to account / Repayment of the HKD13,739,168.26 Sum against the 1^st and 2^nd Defendants;

(6)  The 1^st Defendant’s Breach of fiduciary duties;

(7)  The 1^st Defendant’s Breach of Quistclose Trust; and

(8)  Dishonest and/or knowing assistance by the 2^nd Defendant.

9.The Plaintiff’s claim is built upon one central factual allegation, namely, the 1^st Defendant’s use of the HKD13,739,168.26 Sum not for the specific purpose of covering the maintenance of the expenses of the Minor but for her or the 1^st and 2^nd Defendant’s personal use and benefit. This central allegation is the operative allegation for all the causes of action of the Plaintiff’s claim. Without this operative allegation, none of the causes of action could succeed. For example, even assuming there was indeed some kind of conspiracy between the 1^st and 2^nd Defendants as alleged, if, however, they did not put the conspiracy into practice, that is, the 1^st Defendant did not misuse the HKD13,739,168.26 Sum, the conspiracy claim could not stand. For another example, even assuming that the 1^st Defendant did have interest in the JP Morgan Account, if the Court would not accept this central allegation, none of the causes of action could stand.

10.For convenience, I shall refer to this central, operative allegation as the “1^st Defendant’s Misuse Allegation”.

RELEVANT JUDGMENTS AND DECISIONS IN HCMP 489/2013

2013 Judgment

11.In the Amended Statement of Claim, as quoted above, HCMP 489/2013 is referred to. HCMP 489/2013 was an application commenced by the 1^st Defendant against the Plaintiff under the Guardianship of Minors Ordinance (Cap 13) for maintenance for the Minor. There, on 28 June 2013, Deputy High Court Judge B Chu (as she then was) handed down judgment (the “2013 Judgment”), in which her Ladyship made an order (the “2013 Order”), inter alia, that “[the Plaintiff] shall pay to [the 1^st Defendant] a sum of HK$290,000 per month as periodic payment for the benefit of [the Minor]… on the 1^st day of each calendar month…”. In the course of the judgment, an issue her Ladyship had to resolve was whether the 2^nd Defendant was a financial resource to the 1^st Defendant and the Minor. The 1^st Defendant’s evidence there was that the monies advanced by the 2^nd Defendant to her were loans which she would have to repay eventually. In the judgment, her Ladyship found that the monies were indeed loans, but they were “soft” loans, that is, “there is no sufficient evidence that [the 1^st Defendant] is likely to be taken to court now or in the foreseeable future for non-repayment of these loans”: see paragraph 159 of the 2013 Judgment.

12.There is no appeal from the 2013 Judgment.

13.The Plaintiff by and large complied with the 2013 Order by making the maintenance payments to the 1^st Defendant, but there was a period of default. As a result, the 1^st Defendant had to commence legal proceedings in New York for enforcement of the order for the arrears and also for costs of the enforcement. The monies paid under the 2013 Order and these court orders made in New York constitute the “Monies” referred to in paragraph 10 of the Amended Statement of Claim and the HKD13,739,168.26 Sum came from the Monies.

2017 Decision

14.The acrimony between the Plaintiff and the 1^st Defendant continued (and unfortunately still continues). In 2016 and 2017, the parties took out various variation summonses (the “Variation Summonses”) against each other to vary the maintenance amount in the 2013 Order. The Variation Summonses were fixed to be tried on 2 and 3 May 2018. Pending the trial of the Variation Summonses, in 2017, the 1^st Defendant made a Currey application for litigation funding, which the Plaintiff opposed. The Plaintiff raised various grounds of opposition. In dealing with the Currey application and the grounds of opposition, in her decision handed down on 30 November 2017 (the “2017 Decision”), from which there is no appeal, Chu J (by then already elevated from DHCJ Chu), made the following observations:-

“39. … whether [the 1^st Defendant] has been applying the entirety of the ordered periodical payments towards the maintenance for the benefit of [the Minor], or part thereof for the [1^st Defendant]’s personal benefit will be mainly a matter of evidence. As seen later in this decision, there is a major dispute as to the whereabouts of a sum of about HKD13.7m paid by [the Plaintiff] for the benefit of [the Minor] but transferred out by [the 1^st Defendant] from her bank account.

…

[Having referred to various statements or emails from the 2^nd Defendant in paragraphs 58 – 63 of the 2017 Decision…]

64. What was stated by [the 2^nd Defendant] in his 20.10.17 Email was neither here nor there. As pointed out by Mr Chan, [the 2^nd Defendant] did not actually make it clear that the JP Morgan Account into which [the 1^st Defendant] had transferred the various amounts totalling HKD13.7m on divers dates was the account held in [the 2^nd Defendant]’s sole name nor was there any confirmation that [the 1^st Defendant] had/has no beneficial interest in that account…

65. [The 1^st Defendant] had said in her 8^th affidavit that the JP Morgan Account belonged to [the 2^nd Defendant] and not to her. [The Plaintiff] does not accept this, and I understand that he is seeking supporting documents from [the 1^st Defendant], such as the bank transfer instructions. This is however a matter to be determined at the Trial.

…

78. As said, the whereabouts of the total sum of about HKD13.7m or whether those were repayments to Mr C will be a matter for the Trial, and it is not for the Court at this interim stage to n1ake any finding…”

15.This HKD13.7m mentioned in the 2017 Decision is the very HKD13,739,168.26 Sum pleaded in the Amended Statement of Claim.

2018 Judgment

16.Thus, the parties, as well as her Ladyship, were all aware that the use of the payments of maintenance by the Plaintiff the use and the whereabouts of HKD13,739,168.26 Sum, and the nature of the JP Morgan Account would be issues alive for the trial in May 2018. These issues were relevant to the ultimate issue of whether the Plaintiff’s payments or part of them were used for the 1^st Defendant’s benefit or solely for the maintenance of the Minor as allegedly intended. This ultimate issue was relevant to the trial in May 2018 because, as Ms Mairéad Rattigan SC, leading Ms Terri Ha for the 1^st Defendant, points out, a relevant factor in determining the amount of maintenance for a minor (and thus variation of it) is the need to “guard against unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child”: see IDC v SSA[2014] 4 HKLRD 220 at §§59-67 (leave to appeal refused: see (2015) 18 HKCFAR 91).

17.The trial of the Variation Summonses (together with an additional summons the details of which are not relevant for the present purposes) took place as scheduled on 2 and 3 May 2018. Her Ladyship handed down judgment on 30 November 2018 (the “2018 Judgment”), from which there is no appeal. The following are extracts relevant for the present purposes:-

“IV. The whereabouts of an alleged sum of HK$13.7m

68… Further, there was an amount of HK$13.7m transferred by [the 1^st Defendant] to JP Morgan Account referred to in [the 2017 Decision] which [the 1^st Defendant] said was for repayments to [the 2^nd Defendant] for contributions [the 2^nd Defendant] made towards [the Minor’s] accommodation during the 28 months when [the Plaintiff] failed to comply with the 2013 Order. According to [the 1^st Defendant], the JP Morgan Account belonged to [the 2^nd Defendant] beneficially. [The 2^nd Defendant] had sent two emails, one to confirm that [his] JP Morgan account is and has always been in his name and the other one to confirm the outstanding balance. What [the 2^nd Defendant] had said in his emails did not really clear up the matter…

…

71. [The Plaintiff] does not accept that the JP Morgan Account belonged to [the 2^nd Defendant] and had said at the time of the Litigation Funding Summons that he was seeking supporting documents from [the 1^st Defendant] such as the bank transfer instructions. [The Plaintiff] complained that [the 1^st Defendant] only provided redacted documents. However, there was no application by [the 1^st Defendant] for any specific discovery of the unredacted documents.

72. [The Plaintiff] had in Annexure 10 asked that the Court should take a robust assumption that [the 1^st Defendant] is lying about the entire situation and that she is the true beneficiary of this savings account.

73… as I have said, after the [2017 Decision] there has been no further application by [the Plaintiff] for specific discovery, and without further evidence, I find there is currently no sufficient evidence for this Court to decide whether [the 1^st Defendant] is or is not the beneficial owner of the JP Morgan Account.

…

The 9 disputed issues under the Variation Summons in the Scott Schedule

I. Issue 1 and Issue 2 - whether [the 1^st Defendant] has applied the entirety of payments from [the Plaintiff] towards ILB's maintenance and whether there should be any reimbursement

169. [The Plaintiff’s] case is that [the 1^st Defendant] has not applied the entirety of the payments towards [the Minor’s] maintenance. There is no sufficient evidence that [the 1^st Defendant] has not applied the entirety of the payments towards [the Minor’s] maintenance save that she has said since August 2017, she has applied the amount towards her legal costs. However, I find there was no sufficient evidence to support what she said. I will come to reimbursement later.

II. Issue 3 and Issue 4 – [The 1^st Defendant’s] indebtedness to [the 2^nd Defendant] and if any whether such indebtedness was applied towards [the Minor’s] maintenance

170. As for whether [the 1^st Defendant’s] alleged indebtedness to [the 2^nd Defendant], [the 1^st Defendant] has not satisfied this Court that the amount allegedly due to [the 2^nd Defendant] of US$7,336,524 is repayable by her or that [the 2^nd Defendant] is demanding repayment. In any event, I find there was no sufficient evidence that [the 1^st Defendant] had to borrow from [the 2^nd Defendant] for [the Minor’s] expenses that were not covered by the periodical payments from [the Plaintiff].” (emphases added)

18.It is clear from the 2018 Judgment that:-

(1)  The Plaintiff failed his burden to prove that the 1^st Defendant had any beneficial interest in the JP Morgan Account.

(2)  The Plaintiff failed his burden to prove that the 1^st Defendant had not applied the entirety of the payments towards the Minor’s maintenance.

(3)  While the 1^st Defendant told her Ladyship that she had used some of the payments for her own legal costs, her Ladyship even found that there was no sufficient evidence to support that.

(4)  In other words, the Variation Summonses were dealt with on the basis that the entirety of the payments was applied for the Minor’s maintenance.

19.It is also clear that on the authority of IDC v SSA, supra, any allegation that the 1^st Defendant had similarly misused other payments made by the Plaintiff to the 1^st Defendants pursuant to any other court orders (be it court orders in Hong Kong or overseas) should have been advanced in the trial on 2 and 3 May 2018. Indeed, as explained above, the HKD13,739,168.26 Sum consists of payments made pursuant to the 2013 Order and the orders made by New York Courts. In other words, payments other than those under the 2013 Order were indeed also put in issue before B Chu J. Though apparently in respect of the HKD13,739,168.26 Sum, the focus seemed to be on the whereabouts, the reason for contesting the whereabouts was the Plaintiff’s allegation of the 1^st Defendant’s failure to apply the same for the maintenance of the Minor. In any event, the Plaintiff could and should have put this in issue.

20.I should add that I disagree with the submissions of Mr Ambrose Ho SC, leading Mr Victor Lui for the Plaintiff, that in the 2018 Judgment, B Chu J did not make any finding in the matters set out above and instead, left these open. In a civil claim, where the plaintiff fails his burden of proof of the occurrence of a certain event in or related to an issue, this would effectively mean a fact-finding that that certain relevant event did not occur. Further and in any event, obviously, the plaintiff cannot come back to ask the Court to rule on the matter again on the ground that the Court previously did not make a positive finding that that certain relevant event did not occur but simply a negative finding that the plaintiff failed his burden to prove that that certain relevant event did occur. The plaintiff should have put all relevant evidence (obtained with all the available forensic devices like discovery and interrogatories) before the previous Court for a proper determination of the live issues before it.

21.This brings me to the Henderson abuse of process.

LEGAL PRINCIPLES IN RELATION TO HENDERSON ABUSE

22.There is little dispute between Ms Rattigan and Mr Ho on the legal principles in relation to Henderson abuse of process. In Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at §83, Ma CJ set out the following facets of the Henderson doctrine:-

“(1) The starting point is to recognise that the doctrine is founded on abuse of process… it ought only to be applied when the facts are such as to amount to an abuse: otherwise, there is a danger of a party being shut out from bringing forward a genuine subject of litigation;

(2)…

(3) It must therefore be essential when striking out a claim on this basis (and thus preventing a litigation of that claim) that an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings. This abuse will usually take the form of the other party being “vexed” (or in some cases, the terms “oppressed”, “unjustly harassed” or “unjustly hounded” are used) by the subsequent set of proceedings…

(4) The abuse can also take the form of the administration of justice being brought into disrepute… With the procedural reforms introduced by the Civil Justice Reform in 2009, the courts in Hong Kong must now, when exercising their procedural powers, increasingly bear in mind not just the parties before them in any particular litigation but also the position of other litigants in the court process. RSC O.1A r.1(f) states as one of the underlying objectives of the court’s procedural powers under the Rules to be “to ensure that the resources of the court are distributed fairly”.

(5) In examining aspects such as abuse, the court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice. It is important therefore here to emphasise that when the court is dealing with the Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppel or cause of action estoppel. On the contrary, in considering this type of abuse, the court is required to assess a number of factors and balance competing interests.” (emphases added)

23.In the balancing exercise, the following factors are relevant (as set out by Wilson Chan J in Lo Kai Shui v HSBC International Trustee Ltd & ors [2021] 5 HKC 337 at §117):-

“(1) Whether the impugned claims involve an attempt effectively to overturn or advance a collateral attack on the earlier proceedings…

(2) Whether the causes of action in the two sets of proceedings are based on the same factual matrix…

(3) Whether and to what extent the two sets of proceedings involve the same or similar evidence. In this regard, the fact that the parties to the earlier proceedings were prevented from adducing certain evidence by virtue of the trial judge’s case management powers should not be taken into account…

(4) Whether the relief sought in the two sets of proceedings is similar…

(5) Whether the party raising the impugned claims was involved in or had knowledge of the earlier proceedings…” (emphases added)

24.In respect of (3) above, I add that the same applies (even more strongly) to a situation where the parties were not prevented by case-management decisions from requesting discovery of evidence but for whatever reasons, the parties chose not, or failed, to make such requests.

25.Another consideration is identity of parties. In Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748, Thomas LJ (with whom Longmore and Wall LJJ agreed) held at §26 that:-

“… there is no rule of law that there cannot be abuse of process unless the defendants who are sued in the further action have a sufficient identity with the defendants in the original action, it is none the less a factor that the original action was brought by the claimant against one part and the second being brought against completely different parties.” (emphases added)

ANALYSIS

26.In the present case:-

(1)  The starting point must be that the Plaintiff should be permitted to litigate unless there is abuse – it is his right to access the Courts, and it is the burden on the 1^st Defendant to prove that it is plain and obvious the Plaintiff’s claim is such an abuse.

(2)  As I have observed above, the 1^st Defendant’s Misuse Allegation is the operative allegation, which all the causes of action in the present Action stands (and falls with). However, in the 2018 Judgment, B Chu J already found that there was no or no sufficient evidence to satisfy her that the payments made by the Plaintiff to the 1^st Defendant were misused. For the present Action to succeed, inevitably, the Plaintiff will have to mount an attack, direct or collateral, on her Ladyship’s such finding and/or adduce evidence which he should have adduced before B Chu J.

(3)  Further, the 1^st Defendant’s Misuse Allegation, and in fact the whole Action here, are based on the same factual matrix as that in the 2018 Judgment in respect of the Plaintiff’s allegation there that the Plaintiff’s maintenance payments were misused.

(4)  In the 2018 Judgment, B Chu J noted that while having previously said that he would apply for discovery of documents in support of his allegation that the JP Morgan Account was beneficially owned by the 1^st Defendant, the Plaintiff eventually did not do so. There has been no explanation before me why the Plaintiff did not do so. I would also add that in any event, there would be no inconsistency between the JP Morgan Account being owned by the 1^st Defendant and absence of misuse of the payments by the 1^st Defendant.

(5)  While the 2^nd Defendant in the present Action was not a party to HCMP 489/2013, I do not see how the 2^nd Defendant’s participation or lack thereof would affect the finding as to whether or not the 1^st Defendant misused the Monies. At the very most, one may argue that by joining the 2^nd Defendant, he would then have to give evidence as to the ownership of the JP Morgan Account as well as any loans advanced by him to the 1^st Defendant. However:-

(a)  These do not affect the issue whether or not the 1^st Defendant misused any part of the Monies. Whether or not she misused them is a matter mainly concerning her. The 2^nd Defendant’s evidence would assist little.

(b)  Further and in any event, the 2^nd Defendant did, through the 1^st Defendant, produce emails in HCMP 489/2013 on these issues. Although he could not be subjected to cross-examination, one can see from the 2018 Judgment that B Chu J found his emails unsatisfactory in any event. In other words, even though the 2^nd Defendant’s was not well received by B Chu J, her Ladyship still made the findings as set out above.

(6)  Deployment of judicial resources for this present Action which effectively amounts to an attack (direct or collateral) on the Court’s previous finding would be unfair to other litigants and bring the Judiciary into disrepute.

(7)  If, or insofar as, there is any suggestion that the Monies or HKD 13,739,168.26 Sum in the Action here do not completely overlap with the Plaintiff’s payments mentioned in the 2018 Judgment, but include payments under the New York court orders, such allegation of misuse of the Monies or any part of them could and should in any event have been advanced in the trial in May 2018 because this would be relevant to the Variation Summonses in the 2018 Judgment, especially when the whereabouts of the HKD 13,739,168.26 Sum had already been raised as an issue for determination there and the factual matrix relied upon here in the Action are essentially the same as that in the 2018 Judgment.

27.Balancing the above factors, I conclude it is plain and obvious that the present Action as against the 1^st Defendant is a Henderson abuse of process. My conclusion is sufficient to dispose of the 1^st Defendant’s present application, and thus there is no need for me to deal with the 1^st Defendant’s other arguments including that of no reasonable cause of action in the Plaintiff’s claim itself.

28.As an aside, since the present application to strike out is taken out by the 1^st Defendant only, I do not have to form any view as to the Action as against the 2^nd Defendant.

CONCLUSION AND ORDER

29.In the circumstances, I order, as between the Plaintiff and the 1^st Defendant, that the Amended Statement of Claim be struck out, and the Action be dismissed. I make a costs order nisi that the Plaintiff do pay the 1^st Defendant costs of the Action (including the striking out application) to be summarily assessed on paper on an indemnity basis, with certificate for two counsel, with directions that upon the costs order becoming absolute, the 1^st Defendant do lodge and serve the statement of costs within 3 days and the Plaintiff do lodge and serve a list of objection within 3 days thereafter.

30.Lastly, I hope that the Plaintiff and the 1^st Defendant would have in mind the Minor’s interests as their consideration of the utmost importance and highest priority, and would also bear in mind that any endless acrimony between them (rather than at least any minimal cooperation between them for the Minor), as well as the possible publicity arising from any (or any satellite) litigations (especially those outside the Family Court, which are in general, open to public), would do no good to the Minor.

Mr Ambrose Ho, SC and Mr Victor T S Lui, instructed by Li & Partners, for the plaintiff

Ms Mairead Rattigan, SC and Ms Terri Ha, instructed by Rita Ku & Ser, for the 1^st defendant