Wki v. Ckw

FCMC 11528 / 2019

[2023] HKFC 190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 11528 OF 2019

----------------------------

----------------------------

--------------------------------------------------------------------

DECISION
(Preliminary Issue)

---------------------------------------------------------------------

Introduction

1.This is a decision on a preliminary issue raised by the judgment debtor (“the husband”) whether interim child maintenance is due and owing to the judgment creditor (“the wife”).

The dispute

2.On 1 April 2021, DDJ M Lam ordered the husband to pay interim child maintenance (“the interim child maintenance”) to the wife, inter alia, with the following undertaking (“the undertaking”),

“AND UPON the Petitioner’s undertaking to produce documentary proof of the increment of the monthly tuition fee of the child to not less than HK$16,000 after 1^st September 2021 within 7 days from the date hereof;

IT IS ORDERED THAT:-

1. ……

2. The Respondent do pay the Petitioner interim monthly maintenance payment of HK$12,000 for the benefit of the child of the family commencing on the 1 May 2021 and thereafter on the first day of each month until the 31 August 2021. Commencing from the 1 September 2021, the monthly payment be increased to HK$14,000 and continues to be paid on the first day of each month until further order of the Court.”

3.Subsequently, on 6 September 2021, DDJ M Lam endorsed a penal notice against both parties with service be dispensed with.

4.It is indisputable that the husband did not pay the interim child maintenance as ordered since the 1^st payment, the wife then took out (i) a judgment summons on 9 November 2021 and (ii) a summons for arrears of interim child maintenance on 1 November 2022.

5.The husband submitted the interim child maintenance is not due and owing to the wife on sole ground that the wife has breached the undertaking. The husband argued compliance of the undertaking is a precondition of paying interim child maintenance.

6.The wife sees it differently by saying that the husband shall pay interim child maintenance as ordered without regard to the undertaking. Having said that, the wife said she has complied with it by providing the husband documentary proof of tuition fees.

7.The wife is confident that she has complied with the undertaking by referring me to her affirmation filed on 1 November 2022, in support of applying for leave to issue judgment summons, that she has duly taken steps, being,

“10. On 2 April 2021, I produced to the Respondent by courier a letter and a copy of the email from [child’s school], on 23 March 2021 proving the increment of the monthly tuition fees of [child] to be HK$15,980 in September 2021 in compliance of the Undertaking. On 7 April 2021, I issued a letter to the Respondent to inform him about the [child’s] monthly tuition fees and my account details for him to settle payment for maintenance.”

8.The wife also explained in her submissions that,

“… The information of the tuition and the new tuition of the next school year is readily available online on the school official web site, and it was as well widely informed to all parents in December 2020 and March 2021 through email. The undertaking was just needed to be printed out and send by mail.”

9.The husband, however, said the wife has not complied with the undertaking by (i) failing to produce documentary proof of increment of school fees to HK$16,000 when the final sum turned out to be HK$15,980 which is HK$20 short of HK$16,000; (ii) failing to serve the notice on him within 7 days from the order; and (iii) failing to state clearly how the notice was served.

My view

10.Having considered the parties’ submissions, I am of the view the husband shall pay the wife interim child maintenance as ordered, in other words, the outstanding amount of interim child maintenance is due and owing to the wife. The undertaking stands on its own.

11.I do not see the new tuition fee being HK$15,980 (HK$20 short of HK$16,000) would affect the husband’s duty to pay.

12.The wife agreed she have failed to serve the notice on the husband within 7 days. Yet practically, even if the wife’s notice could not reach the husband within time, I accept, the husband can check the most updated / revised level of tuition fees on the school webpage. I am not persuaded the husband will be in any way prejudiced. This is not a reason to withhold paying interim child maintenance.

13.To some extent, I agree with the husband that the wife should have applied for further directions from Court when the notice was served out of time. However, instead of doing this, the parties shall focus on main suit of the Petition. This petition was filed on 25 September 2019, the husband defended the main suit by filing an Answer and Cross Petition; the wife likewise defended the husband’s Cross Petition. As at today, which is 4 years from filing of Petition, I am not aware trial on main suit has been fixed.

14.Since the filing of petition, excluding the wife’s judgment summons and summons for leave to appeal applications, the parties came up with more than 10 other summonses[1] for various orders. Some of the summonses are still on foot. The parties shall attempt to narrow down disputes and to avoid unnecessary applications.

15.For reason the judgment summons has not been concluded, I reserved the costs of this decision.

Orders

16.I therefore make the following orders:

(i)  The husband is liable pay the wife interim child maintenance pursuant to paragraph 2 of the Order dated 1 April 2021.

(ii)  The costs of this decision on preliminary issue be reserved.

(iii)  A direction hearing of judgment summons be fixed on 30 October 2023 at 9:30 am in Court 52 with 20 minutes be reserved.

(iv)  Both parties do attend personally.

The petitioner, acting in person

The respondent, acting in person