Aldl v. Ftfc and Another

FCMC 13698/2013

[2024] HKFC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 13698 OF 2013

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BETWEEN

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DECISION
( Leave to Appeal: Ancillary Relief Judgment )

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1.There are 2 applications before me respectively taken out by the petitioner (“W”) and the 1^st respondent (“H”), both for leave to appeal against the Judgment made by me on 17 April 2024 (Re: Ancillary Relief) (“Ancillary Relief Judgment”).

2.With a view to saving time and costs, I consider that it is appropriate for me to deal with them in the same decision.

3.I would deal with W’s application first and then H’s application.

4.In so far as applicable, I would use the same abbreviations as that in the Ancillary Relief Judgment[1].

Legal principles regarding leave to appeal

5.Section 63A(2) of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

6.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125.

W’s Ground 1

7.This ground raised by W is premised on the success of her intended appeal against the Preliminary Issues Judgment[2]. As I had refused to grant leave to W to appeal[3], this ground has no merit and reasonable prospect of success.

W’s Ground 2

8.Relying on A v B[4], W argued that I should “add back” the value of the Landed Properties[5] on the basis that the purchases were wanton and reckless.

9.I reject this ground as rightly submitted by H that this add-back issue has not been raised in any of the W’s evidence, her counsel’s opening, closing submissions or run at the trial. H was not even asked by W’s counsel at cross examination as to this issue and he had no chance to rebut or defend such accusations by way of filing his affidavit or giving oral evidence to explain at trial.

10.This ground has no merit and reasonable prospect of success.

W’s Ground 3

11.W contended that the value of the estate of H’s late mother for $1.18m should be added back under H’s assets.

12.I accept H’s submission that whether or not this $1.18m was added back, it would make very little or even no difference to the outcome of the Judgment, in view of the fact that W had already received over $12m in 2012 and my order for joint lives periodical payment for HK$260,700 per month against H. This ground has no merit and reasonable prospect of success.

W’s Ground 4

13.W submitted that I ought to have ordered H to pay the maximum possible lump sum with a periodical payment order, which would be adjusted downward proportionally to account for the lump sum. This is a completely new submission, especially the example illustrated in paras. 13 to 15 of the W’s submissions for this application, which was never raised before.

14.In any event, W failed to establish the exercise of my discretion under section 7 of MPPO was “plainly wrong” in failing to make such an order for “maximum possible lump sum”.

15.Furthermore, I have carefully considered all circumstances including the 4 factors mentioned by W such as H’s intention to relocate to Australia etc, and then came to conclude that the security requested by W was unreasonable and unnecessary.

H’s Ground 1

16.I now turn to H’s application for leave to appeal. Under this ground, H argued that I declined to specifically rule on all of the 62 distinct points embedded in H’s closing submissions regarding W’s ME/CFS.

17.According to both experts’ evidence, no one has ever suggested a single NASA Lean test alone is sufficient to support a diagnosis of ME/CFS. When reaching the conclusion that W did suffer from ME/CFS, I had carefully considered all of the 62 distinct points raised by H but I do not think that I had to specifically rule on all the points raised by H. I had certainly guarded against the potential malingering by W and eventually, I found that W’s ME/CFS condition was well supported by other tests including the results made by Dr Bateman and other doctors.

18.I accept W’s submissions that based on the parties’ expert evidence, cognitive impairment is not necessary for a diagnosis according to the IOM criteria.

19.This ground has no merit and reasonable prospect of success.

H’s Ground 2

20.H contended that I failed to assess W’s needs objectively.

21.I am of the view that I am entitled to rely on my own judicial experience and common senses so as to assess W’s needs. As said in para. 79 of LKW’s case, “Baroness Hale stressed that the parties’ needs should be “generously interpreted””. The blanket assertion of H for lack of W’s supporting documents should be rejected. Due to W’s ME/CFS condition, her medical expenses must be assessed generously.

H’s Ground 3

22.H tried to argue that I failed to adjust for overpaid interim MPS. H suggested a reduction of $80,000 per month.

23.This ground has no merit and reasonable prospect of success since the final periodical payment order exceeds W’s MPS[6].

H’s Ground 4

24.H submitted that I inaccurately assessed W’s needs, such as her over-house and her insurance premia not payable after 1 September 2024.

25.I just found in the Ancillary Relief Judgment that W was just a bit but not grossly over-housed. It would be extremely onerous to force W to sell or mortgage her only place of residence at Parc Royale.

26.The issue of W’s insurance premia not payable after 1 September 2024 was not raised in H’s closing submissions[7]. A broad brush figure of $20,000 is appropriate in the light of the parties’ living standard during marriage.

H’s Ground 5

27.H argued that I was “plainly wrong” to refuse to stop maintenance at H’s retirement.

28.H simply cannot establish that my discretion in this regard is “plainly wrong”. As said[8], I found it unbelievable for H to retire in the near future. This ground has no merit and reasonable prospect of success.

Conclusion

29.To conclude, both of W and H have failed to demonstrate any reasonable prospect of success in their respective intended appeals and there is no other reason in the interests of justice why their appeals should be heard. Their applications for leave to appeal should be dismissed.

30.Regarding the question of costs, the usual principle is that costs shall follow event. W and H have lodged their respective statements of costs claiming about $108,364 and $148,192 respectively. However, I consider the costs incurred by them shall be more or less the same. Besides, I would no doubt disallow the certificate for 2 counsel in these application. With a view to saving further time and costs for taxation, I exercise my discretion to order that there be no order as to costs of the applications of W and H for leave to appeal.

Petitioner: Mr Adrian Kwan (for P’s appeal) and Ms Bonnie Cheng and Mr Adrian Kwan (for opposing R1’s appeal) instructed by Chaine Chow & Barbara Hung

1^st Respondent: Mr Azan Marwah and Mr Josh Baker instructed by Tsang, Chan & Woo Solicitors & Notaries