李 v. 黃 and Another
Read the full judgment text of FCMC 4682/2021 on BabelCite. This Family Court judgment was delivered on 22 February 2023 before HH Judge C.K. Chan.
Striking out – Pleadings – Matrimonial Proceedings – Constructive Trust – Resulting Trust – Irrelevant Allegations – Perjury – Costs – Whether pleadings are scandalous, frivolous, vexatious or prejudicial to fair trial – Mother's Points of Claim contained allegations regarding Wife's conduct and parenting irrelevant to beneficial ownership of property – Wife's Points of Defence contained unnecessary perjury allegations against Husband and Mother – Court struck out irrelevant and unnecessary matter – Costs in the cause of preliminary issue trial
Legal issues: Striking out of Mother's Points of Claim · Striking out of Wife's Points of Defence
Outcome: Wife's summons granted in part (paras 20-22 struck out); Mother's summons granted (paras 8(1) & 11(9) second sentences struck out); Costs in the cause.
Cites 1 case
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FCMC 4682/2021 [2023] HKFC 39 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 4682 OF 2021 ------------------------
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--------------------------- D E C I S I O N (STRIKING OUT) ---------------------------- Applications 1.There are two striking out summonses before me, one from the Petitioner (“the Wife”) and the other one from the 2nd Respondent (“the Mother”), who is the mother of the 1st Respondent. They are:
2.The 1st Respondent (“the Husband”) does not take part in these striking out applications. 3.Although most of the pleadings were drafted in Chinese, I have decided to hand down this decision in English because both counsel’s written submissions were prepared in English. Background 4.The Wife and the Husband were married in 2003. Within wedlock, they have a son who is now 18 years of age. 5.In 2021, the Wife issued a petition for divorce based on behaviour on which a decree nisi was granted on 18 August 2022. 6.One of the main issues concerning ancillary relief was the beneficial ownership of a property located at Yue Shing Building, nos. 28, 28A & 30 Boundary Street, Kowloon (“the FMH”). It was not disputed that the FMH was purchased in the year of 2010 in the name of the Husband. But according to the Mother, all the purchase moneys were paid by her and there was a common intention constructive trust/resulting trust in her favour. Therefore, the Husband was merely holding the FMH as a trustee for her. By the end of 2020, the Mother requested the Husband to transfer the FMH back to her. After such transfer, the Wife took out an application for an avoidance of disposition order under section 17 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”). It was quite clear that whether the FMH should form part of the matrimonial pot would have a huge impact on the Wife’s application for ancillary relief and so the beneficial ownership of the FMH has become the central issue of her application. 7.On 31 August 2022, I gave directions for the beneficial ownership of the FMH to be tried as a preliminary issue and for that purpose, the Mother was joined as the 2nd Respondent. Directions were given for pleadings to be filed. The Mother filed her Points of Claim on 12 October 2022, and the Wife filed her Points of Defence on 9 November 2022. 8.After service, both parties filed their respective application to strike out part of the other’s pleadings. Directions were given for their applications to be decided on paper, of which I hereby do. Legal Principles 9.Both sides rely on O.18 r.19(1) (b) & (c) of the Rules of High Court (“RHC”) which states:
10.There is no dispute that striking out should only be made in plain and obvious cases. There should be no trial upon affidavit. The burden is on the party seeking the striking out to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail: See Hong Kong Civil Procedure 2023 at 18/19/4. 11.The court has a general jurisdiction to expunge scandalous matter in any record or proceeding. Relevance, is an important consideration. A discussion on the exercise of such jurisdiction could be found in the Judgment of Barma J (as Barma JA then was) in Re Linea Trading Co Ltd (HCCW 350/2004, [2005] HKEC 1225), [4]:
12.The expression “frivolous or vexatious” includes proceedings which are an abuse of the process. A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides: See Hong Kong Civil Procedure 2023 at 18/19/7. 13.The mere fact that a pleading contains some unnecessary matter is not sufficient ground for an application for striking out. A statement will not be struck out merely because it is unnecessary, so long as it is otherwise harmless. Similarly, a pleading will not be struck out unless it is clear on the face of the allegations that they are irrelevant. It is no part of the one party to reform the other party’s pleading; but if wholly immaterial matter be set out in such a way that the applicant must plead to it, and so raise irrelevant issues which may involve expense, trouble, and delay, then the irrelevant matter will be struck out, as it will prejudice the fair trial of the action: See Hong Kong Civil Procedure 2023 at 18/19/8. 14.I will bear the above principles in mind when I come to decide on the parties’ respective application. The Wife’s Striking Out Application 15.The Wife applies to strike out paragraphs 20-23 of the Mother’s Points of Claim, which read:
16.The gist of the Wife’s complaints is that paragraphs 20-22 of the Mother’s Points of Claim contain a total of 17 factual allegations directed solely at the conduct of the Wife and the parties’ son. All these allegations, even if true, do not have any bearing on the central issue of whether there was a common intention constructive trust/resulting trust in favour of the Mother on the beneficial title to the FMH. All these irrelevant allegations should therefore be struck out. My Views 17.The first observation to be made is that counsel’s submissions directed only at paragraphs 20-22 of the Mother’s Points of Claim, but nothing was mentioned on paragraph 23. 18.From a fair reading of paragraphs 20-22, the Mother was trying to portrait the Wife as a person who would indulge in mah-jong playing and neglected the proper caring of the son. She had also treated the Mother badly and even refused to cook for her. This had led to many arguments and the eventual separation of the parties. 19.I agree with counsel submissions that all these allegations, even if true, do not have a sufficient connection with the central issue of whether there was a common intention constructive trust or resulting trust in favour of the Mother. 20.In order to prove a common intention constructive trust, the Mother has to prove that she and the Husband had an express agreement or at least a tacit understanding on the beneficial interest of the FMH. In proving a resulting trust, the Mother has to prove that all the purchase moneys were paid by her and those payments were not gratuitous in nature. But what paragraphs 20-22 of the Mother’s Points of Claim sought to establish were that the Wife was not a good spouse, nor a good parent. These are clearly irrelevant materials to the central issue of the beneficial ownership of the FMH. By putting in all these irrelevant materials, it would be unfair if the Wife should not be given an opportunity to refute, which would in turn prejudice or delay the fair trial of the preliminary issue. I am of the view that paragraphs 20-22 of the Mother’s Points of Claim should not be allowed to remain and must therefore be struck out. 21.As far as paragraph 23 is concerned, I could only take that the Wife is no longer insisting on a striking out. After all, by reading paragraph 23 objectively, I am satisfied that it could be regarded as background information to explain why the Mother demanded a transfer back of title from the Husband. Therefore, I am not minded to make any striking out order on paragraph 23. The Mother’s Striking Out Application 22.The Mother applies to strike out the second sentence of paragraph 8(1) and the second sentence of paragraph 11 (9) of the Wife’s Points of Defence, which read:
23.According to these 2 paragraphs, the Wife is saying that the case as pleaded by the Mother was so inconsistent with some of the evidence of the Husband that one of them must be lying and their perjury should be criminally prosecuted. My Views 24.The cases of the Mother and the Husband may, or may not be consistent but that should be a matter for the trial. An averment that one of them must be lying, or that they have committed perjury and should be criminally sanctioned is, in my view totally unnecessary. These averments should not appear in the Wife’s Points of Defence. I have thought of whether this court should simply ignore those pleadings, saving a striking out. But since the court would strike out part of the Mother’s Points of Claim, coupled with the fact that the Husband is currently acting in person, I am convinced that it would only be fair that these two sentences of the Wife’s Points of Defence, being unnecessary and therefore irrelevant, should also be struck out. Orders 25.Based on the above reasons, I hereby make the following orders:
Costs 26.Both parties’ applications are successful either wholly or substantially. I think it is fair for the parties’ costs, including all costs reserved with certificate for counsel to be costs in the cause of the preliminary issue trial. This will be in the form of an order nisi, to be made absolute after the expiry of 14 days from the handing down of this decision.
Representation: Mr. Mui Hoi Tat, instructed by Messrs. S.H. Chan & Co., solicitors for the Petitioner Ms. Isabel Tam, instructed by Messrs. C.L. Chow & Macksion Chan, solicitors for the 2nd Respondent | |||||||||||||||||||||||||||
Cases cited in this judgment