Mypc v. Cwh

FCMC 8147/2014

[2023] HKFC 12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8147 OF 2014

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DECISION
( Stay of Income Attachment Order Application )

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Introduction

1.The Petitioner wife (“W”) has made an application for an Attachment of Income Order (“AIO”) against the Respondent Husband (“H”).

2.H applied to stay W’s AIO application pending outcome of his application for leave to appeal to the Court of Appeal in relation to his unsuccessful application for variation of maintenance.

Background

3.W and H were married in 1996 with 2 daughters.

4.W petitioned for divorce in 2014 and Decree Absolute was granted on 23 October 2014.

5.By consent, it was ordered on 26 August 2014 that joint custody of the daughters be granted to the parties and care and control of the daughters be granted to W with defined access granted to H and H was to pay monthly maintenance to W and the daughters (“the 2014 Consent Order”).

6.H on 27 March 2018 applied for variation downwards of the maintenance payable to W and the daughters.

7.W on 29 June 2018 applied for variation upwards of the maintenance payable to her and the daughters.

8.H since 1 December 2018 unilaterally reduced the total maintenance to W and the daughters and W applied for AIO on 7 December 2018.

9.After trial, H’s application for variation of maintenance and W’s application for variation of maintenance and AIO were all dismissed on 4 December 2020 by DDJ Rita So (“the Judgment”).

10.Both W and H sought leave to appeal out of time against the Judgment on 19 February 2021 and 14 May 2021 respectively but both of W and H’s applications were refused by DDJ Rita So on 29 October 2021.

11.Both W and H applied to the Court of Appeal for leave to appeal against the Judgment.

W’s Second AIO Application

12.On the other hand, W filed a fresh summons for AIO on 16 February 2021 based on the 2014 Consent Order and the Judgment.

13.H was ordered on 28 April 2021 to file a statement of means under Rule 4(2) of Attachment of Income Order Rules, Chapter 13A.

14.H applied to have W’s second application for AIO stayed pending the result of the Court of Appeal’s decision regarding his appeal.

15.H argued that result of his attempt for variation of maintenance would directly affect W’s entitlement under AIO.

Court of Appeal’s Decision

16.On 2 March 2022, the Court of Appeal dismissed both H and W’s applications for leave to appeal against the Judgment.

17.In light of the dismissal of H’s application for leave to appeal, there should no longer be the need for me to deal with H’s application for stay of W’s application for AIO.

H’s Second Application for Leave to Appeal

18.On 26 May 2022, H by summons sought leave to appeal against the Judgment the second time despite the Court of Appeal’s Decision on 2 March 2022.

19.Despite H’s second attempt in seeking to appeal, I am not inclined to consider this a good enough reason for a stay of W’s second AIO application.

20.It is trite that an application for leave to appeal does not act as a stay of execution of a judgment.

21.H already tried but failed in applying for a stay of execution of the Judgement before the Court of Appeal.

22.Further, the Court of Appeal in refusing W’s application for leave to appeal in respect of her AIO application commented that W had already commenced fresh enforcement applications and they should be the way forward instead of pursuing the appeal.

Consent Order in 2022

23.Pursuant to consent summons filed by parties on 9 June 2022, it was ordered on 13 June 2022, amongst others, that W do discontinue her enforcement applications including AIO, Charging Order and Committal of divers dates (“the 2022 Consent Order”).

24.However, the aforesaid AIO application that was discontinued in the 2022 Consent Order was the one filed on 7 December 2018 that had already been dealt with by DDJ Rita in the Judgment, the second summons for AIO filed on 16 February 2021 was not mentioned.

25.Yet it is quite clear that the W’s second application for AIO is no longer a live issue between parties because the 2022 Consent Order was made under W’s acknowledgement and confirmation that H had already paid her HK$1,995,783 in full and final settlement of all sums previously owed and W’s further agreement and undertaking to withdraw and not to proceed with any or all enforcement applications including AIO applications already taken pursuant to the 2014 Consent Order.

26.Up to this date, no further application to dispose of W’s application for AIO filed on 21 February 2021 has been made by parties.

27.It might be an oversight of the parties that W’s summons filed on 16 February 2021 had not been specifically dealt with in the consent summons filed on 9 June 2022 and thereafter.  Be that as it may, W’s second AIO application filed on 21 February 2021 remains procedurally unresolved.

28.Under these circumstances, I would still formally make a decision in this regard for the sake of completeness.

29.In light of the settlement between parties and W’s undertaking under the 2022 Consent Order, W’s second application for AIO ought to be stayed.

30.I hereby make the following orders:

(1) W’s summons filed on 16 February 2021 for AIO be stayed until further order of the Court.

(2) There be no order as to costs of H’s application for the stay of W’s summons filed on 16 February 2021.

Petitioner acting in person at the time of the application

Respondent acting in person at the time of the application