Mcyp v. Cwyw

FCMC 11432/2018

[2022] HKFC 221

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11432 OF 2018

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

Dates of Submissions:  9 August 2022

Date of Decision:  10 October 2022

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DECISION

( Leave to Appeal )

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Background

1.The Respondent (“the Wife”) sought leave to appeal against my decision (“the Decision”) made on 26 July 2022 dismissing her application for third-party discovery by the companies (“the Third Party”) that the Petitioner (“the Husband”) has interests in.

2.In the Decision, I refused to accept the notes prepared by the expert of the Wife (“the Expert”) for non-compliance of O.38 r.37C of the Rules of High Court and found that the Wife had failed to demonstrate the necessity for seeking third-party discovery on most of the documents sought.

Draft Grounds of Appeal

3.The Wife has 4 draft grounds of appeal.

4.Ground 1 is that I erred in refusing to accept the Expert’s notes exhibited to the Wife’s affirmation by reason of non-compliance of O.38 r.37C of the Rules of High Court and argued that the evidence of the expert could have been admissible by reason of O.38 r.2(3) and r.36 and s.47(1) of Evidence Ordinance (Cap. 8). Alternatively, even if there was procedural irregularity, the proper approach was to nevertheless admit the expert’s evidence for the purpose of the interlocutory application.

5.Ground 2 is that I erred in adopting an overly restrictive approach to assess “necessity” of the third-party discovery and the Husband and the Third Party should not be permitted to deny the necessity or what the expert deemed were necessary documents for the purpose of compiling his expert report for the Wife unless they could show that the specific discovery was clearly and plainly irrelevant or oppressive.

6.Ground 3 is that I erred in misunderstanding and misreading the Expert’s evidence.

7.Ground 4 concerns costs, the Wife argued that the Third Party should not be awarded costs when they acted unreasonably and strenuously argued against the third-party discovery application. As far as the Husband was concerned, the Wife argued that he failed to discharge his on-going full and frank disclosure obligation, costs should have been awarded against him.

Discussion

8.S.63A(2) of District Court Ordinance (Cap. 336) provides that leave should not be given unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

9.It is trite that a reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”. (KNM v HTF, HCMP 288/2011)

10.As I am unable to say the prospect of success of the Wife’s appeal is no more than fanciful, I will grant the Wife leave to appeal.

11.By reason of the foregoing, I make the following orders:

(i)  Leave be granted to the Respondent to appeal against the Decision of Deputy District Judge R. Chow made on 26 July 2022 per the draft Notice of Appeal annexed to the Respondent’s Summons filed on 9 August 2022;

(ii)  Costs of the Respondent’s Summons filed on 9 August 2022 be in the cause of the appeal.

Withers, Solicitors, for the Petitioner (Husband)

Ms Anita Yip, SC and Ms Lily Yu instructed by Chaine, Chow & Barbara Hung, Solicitors, for the Respondent (Wife)

Deacons, Solicitors, for the Third Party