Read the full judgment text of FCMC 15990/2017 on BabelCite. This Family Court judgment was delivered on 29 October 2021 before His Honour Judge G. Own.
Matrimonial causes – Joinder of party – Order 15 rule 6 – Section 17 application – Delay – Prejudice – Bona fide claim – Joinder granted – Costs order. The Petitioner, the Wife, filed a divorce petition relying on one year separation and consent. Decree Nisi was granted in 2018. The Petitioner subsequently filed a composite Summons seeking joinder of the Respondent's mother, the Proposed Intervening Party, as the second respondent. The application also sought to set aside dispositions of three landed properties made by the Respondent to the mother in 2010. The properties included one in Singapore and two in Hong Kong. The mother argued that the properties were held on trust for her and that joinder was delayed and prejudicial. The Court applied the principles from KCMA v ABC [2019] HKFLR 548 and LLC v LMWA [2019] 2 HKLRD 529 regarding joinder of non-parties. The Court held that the test for joinder is whether there is a bona fide claim and a proper question to be tried which is necessary or just and convenient. The Court found that the mother's presence was necessary to determine the dispute over beneficial ownership of the properties. The Court rejected the submission that delay of 2.5 years disentitled the Petitioner, noting litigation was ongoing and the delay was not inordinate. The Court found no prejudice to the mother despite her age of 81, as she was legally represented and capable of making an affirmation. The Court held that the contention of no bona fide claim should be tested at the substantive trial of the Section 17 application and not at the joinder stage. The mother was joined as a party limited to ancillary reliefs. The Respondent and the mother were ordered to pay the Petitioner's costs of the joinder application. A certificate for counsel was granted. The costs order was made nisi. The Court emphasized that the joinder application was distinct from the Section 17 application regarding the setting aside of dispositions. The Court noted that the disposals occurred within 12 months of the same year and at undervalue. The Court considered the marital relationship breakdown timeline which diverged between the parties. The Court concluded that joining the mother would facilitate conducting a three-party FDR. The Court dismissed the mother's challenge regarding jurisdiction over the Singapore property as it was no longer pursued. The Court found that the mother's affirmation demonstrated her capability to understand allegations against her. The Court held that the 3-year statutory presumption did not affect the right to join the mother. The Court granted the joinder application. The Court noted that the mother was the disponee of all three landed properties and fully supported the Respondent's case. The Court found that the dispute concerned whether the third party had any beneficial interest in the property. The Court held that the presence of the party would be necessary even though she was at advanced age. The Court found that the gap of delay counted from the preceding proceedings was reasonable given negotiations. The Court held that the prejudice tipped the balance in the Petitioner's favour. The Court found that the mother's memory and capability of recalling past events were sound. The Court held that the Court retains a discretionary power to refuse the order or to impose terms. The Court found that the object is to ensure all issues in dispute be effectively adjudicated upon. The Court held that the plaintiff is entitled to choose the person against whom to proceed. The Court found that the court has power on the application to add or substitute a defendant. The Court held that the court can on such terms as it thinks just give leave for a person to be joined as a defendant. The Court found that the mother was able to make her affirmation contesting the Petitioner's Joinder application. The Court held that the mother overcame the age issue. The Court found that the geographical issue and the age issue could be easily resolved. The Court held that the mother should be joined a party in these proceedings in respect of ancillary reliefs.
Legal issues: Joinder application test · Delay and prejudice · Bona fide claim
Outcome: Joinder application granted; M joined as 2nd Respondent; Costs ordered against H and M