Lyi also known as Yil v. Jj also known as Jj

FCMC 2960/2018

[2023] HKFC 131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 2960 OF 2018

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RULING
(Paper Disposal)

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1.This is the respondent husband’s application for leave to appeal against an Order made by me on 13 March 2023 (“the 13 March 2023 Order”). 

2.By the 13 March 2023 Order, I granted an extension of 12 months until 25 January 2024 for the petitioner to have the parties’ former matrimonial home (“the Property”) sold in an open market.  Despite being served with the application the respondent did not appear in the hearing when the 13 March 2023 was made.

3.By way of background, the sale of the Property is pursuant to a Judgment (“AR Judgment”) given by this court on 16 August 2021.  This AR Judgment resolved the parties’ disputes over their ancillary reliefs and was made after a full trial.  Dissatisfied with the AR Judgment, the respondent applied for leave to appeal.  The application was dismissed by me on 7 October 2021: see: LYI also known as YIL v JJ also known as JJ [2021] HKFC 197.

4.Same as the proceeding leading to trial, the enforcement proceeding has not been plain sailing. Due to the uncooperativeness of the respondent, the petitioner had to come to court for assistance as a result of which the court made the following orders.

5.First, there was an order dated 27 January 2022 to extend the time of sale for 6 months until 26 July 2022 and to authorize the petitioner’s solicitor to execute the Deed of Assignment on behalf of the respondent for the sale of the Property.

6.Secondly, there was an order dated 25 July 2022 that the respondent is to deliver the vacant possession of the Property to the petitioner and that the time of sale be extended for another 6 months until 26 January 2023. 

7.Finally, the 13 March 2023 Order which is the subject of the present application.

8.As I have already set out the legal principles applicable to obtaining leave to appeal in my earlier ruling in LYI also known as YIL v JJ also known as JJ [2021] HKFC 197, I would not repeat the same here. Briefly stated, the respondent is required to show a meritorious ground that allows him a reasonable prospect of success. This is the threshold set out in section 63A(2) of the District Court Ordinance, Cap 336; see also Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012 (Unreported, 29 June 2012) at [8] – [9].

9.The respondent’s Intended Grounds of Appeal are not numbered.  I do not think it is necessary to deal with his Intended Grounds paragraph by paragraph.  In his Intended Grounds, the respondent mentioned he did not know the petitioner was a divorcee and so he was deceived into the marriage with the her.  There are paragraphs that he dealt with the merits of the AR Judgment, specifically, he complains that he received the trial bundle late, that the maintenance he has been ordered to pay is too high and that I did not take his debts owed to his family members into account when considering how the family assets are to be divided. 

10.In my view, all these matters cannot be grounds of an appeal.

11.First, it has to be noted that the 13 March 2023 Order is merely an order extending the time of sale to another 12 months.  This is to facilitate the enforcement of an order for sale made by this court in the AR Judgment.  The decision to extend time is an exercise of discretion on the part of the court after having considered all the evidence and materials before it at the time when the petitioner’s application was heard, ie, on 13 March 2023. On appeals against the exercise of discretion, The Hong Kong Civil Procedure (2023) has the following discussion in §59/0/54.

Appeals against exercise of discretion—There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it be shown that he exercised his discretion under a mistake of law ( Evans v. Bartlam [1937] A.C. 473 ) or in disregard of principle ( Young v. Thomas [1892] 2 Ch. 134 ) or under a misapprehension as to the facts (ibid.); or that he took into account irrelevant matters ( Egerton v. Jones [1939] 3 All E.R. 889 at 892, CA) or failed to exercise his discretion ( Crowther v. Elgood (1887) 34 Ch D 691 at 697) or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible” ( G. v. G. [1985] 1 W.L.R. 647 ; [1985] 2 All E.R. 225 , HL). See also Banque Nationale de Paris v. Chan U Tong [1968] H.K.L.R. 151 , and Fung Tin Keung v. Hong Kong Wah Yuen Investment Co. & Another [1967] H.K.L.R. 650 , and Re SY Engineering Co. Ltd (unrep., CACV 1896/2001; [2002] H.K.E.C. 241 , CA) (appeal against a winding up order)…

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12.On the strength of the authorities, it is evident that the respondent failed to demonstrate there is an arguable case that the discretion was not exercised at all or that I made some errors or mistakes of law in the exercise of discretion or that the decision was plainly wrong.

13.Secondly, it has to be remembered that the respondent’s application for leave to appeal on the merits of the AR Judgment was already dismissed by this court in LYI also known as YIL v JJ also known as JJ [2021] HKFC 197.  The respondent should not be allowed to re-litigate the issues and have the second bite of the cherry.

14.For the above reasons, I do not find any meritorious ground that allows the respondent a reasonable prospect of success. There is also no other reason in the interests of justice why the appeal should be heard: section 63A(2)(b), District Court Ordinance (Cap 336).  The respondent’s application is dismissed accordingly.

15.I have no doubt that the petitioner, who has filed a written submission in opposition, should be entitled to her costs and I so order.  The petitioner’s costs are summarily assessed at $1,000 payable by the respondent forthwith.

LYI also known as YIL, the petitioner, in person

JJ also known as JJ, the respondent, in person