Lo Tong-kai v. Lo Lai-bing

CACV000087/1978

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Coram: Huggins, J.A., Leonard and Li, JJ.

Date of Judgment: 24th November 1978.

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JUDGMENT

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Huggins, J.A.:

1. This is an application for an injunction or other relief pending appeal against the refusal of an injunction pending hearing of the actions.

2. There are two actions, one by the Husband to prevent the Wife's entering shops which the Husband says are his and one by the Wife under the Married Persons Status Ordinance in which she claims an interest in the shops. The Wife has come direct to this court without first making an application to the learned Chief Justice and does so for two reasons, (a) that the learned Chief Justice when delivering his decision expressed the opinion that the application for relief pending hearing of the action should not have been brought, so that he was likely to be prejudiced against granting relief pending appeal; and (b) that the Chief Justice was leaving the Colony for about ten days. The first of these reasons was insufficient because the material considerations relating to the two matters were different. The second reason was questionable, but we were willing to assume that the application could not have been put before the learned Chief Justice before he left the Colony and accordingly we were willing to assume jurisdiction.

3. Two matters have to be considered: (i) whether there was at least a reasonable prospect that the appeal might succeed; (ii) whether the relief sought was necessary for the protection of the Wife and whether the balance of convenience was in favour of granting such relief.

4. It is argued that we are being asked to give relief which the Chief Justice has already decided ought not to be granted. Although superficially that may appear to be so, it is not so in fact: the substance of the relief would be the same but the duration would be different and, as I have already said, the material considerations are different. The contention on behalf of the Wife is that the property in dispute ought to be preserved in order to ensure that if the Wife succeeds in her action she will not be left with an empty judgment. We are told that the Chief Justice made some reference to "maintenance" in the course of the hearing before him and it is suggested that the failed to appreciate the true nature of the Wife's claim. It is pointed out that in the papers before him the title of the consolidated action was not properly set out and did not refer to the Wife's action. The Chief Justice is very experienced in matrimonial proceedings and I would be slow to conclude that he was not fully aware both of the existence, and of the nature, of the claim. Nevertheless he appears not to have given reasons for his decision and we do not know why he felt so strongly that the action before him was misconceived.

5. The land in which the Wife claims that she originally had an interest has been sold and she therefore is now seeking an order aimed at the proceeds of sale. She accepts that some of the proceeds may have been disbursed legitimately, but argues that it is for the Husband to establish such disbursement and that the only way in which she can be protected is by an order that the Husband bring money into court. There is no doubt that the land in question was bought in the Husband's name. He says that he bought it, with the help of a mortgage, during a period of desertion by the Wife. He sets out various alleged liabilities which, he says, constituted the reason for his having to sell the land and also indicates other payments that he has made. The total of these sums is little short of the amount of the proceeds of sale. However, it is contended by the wife that at least one of the sums mentioned as a reason for the sale was an alleged loan to her, for which the Husband would not be liable and which she denies in any event, and she suggests that this raises doubt as to the bona fides of the Husband.

6. The Wife's case will be that she was the sole proprietress of the business carried on in the premises sold and that she "contributed to the business". In her Counterclaim in the Husband's action she alleges that her contribution was the payment of arrears under a mortgage of the shop premises, but her affidavit of 1st December 1977 says that she started the business in other premises with moneys from the profits of the two other businesses and that when the business moved to the premises in question she paid the first instalment of the purchase price with money obtained from the sale of her jewellery, the remaining (monthly) instalments being paid from the profits earned by her three shops. She goes on to say that $290,000 of the purchase price was provided by way of mortgage, and I take it that what she means is that only the balance of the purchase price was to be paid by instalments. She agrees that the land was assigned to the Husband alone, but does not give any satisfactory reason why that should have been. The Wife relies heavily upon the fact that some of the disbursements alleged by the Husband were made at a time when, in effect, a conditional order which had been made for the discharge of an injunction against her was in the balance: the injunction was in fact discharged for want of fortification of an undertaking as to damages. This, she says, indicates an intention to defeat her claim.

7. There is strong reason to believe that that was the Husband's intention. We cannot decide now whether she has a just claim, but she clearly has an arguable case under the Married Persons Status Ordinance. If the Husband disposes of all the proceeds of sale she may be prejudiced. He has set out his reasons for selling the property but has not told us if, of how, he has disposed of the proceeds. Looking at the evidence as a whole I think it would be just that he should, pending the hearing of the appeal or further order, give security to the satisfaction of the Registrar in the sum of $200,000 in respect of any judgment which may hereafter be given in the Wife's favour in the consolidated actions. Subject to anything which counsel may say I think that costs of this application should be costs in the appeal.

24th November 1978.

Representation: