Ttk v. Nps
Read the full judgment text of FCMC 1889/2021 on BabelCite. This Family Court judgment was delivered on 9 April 2025 before His Honour Judge I Wong.
Matrimonial Causes – Sale of Property – Appeal Against Master’s Decision – Extension of Time – New Evidence – Outgoings Responsibility – Consent Order – District Court Ordinance – RHC – Husband granted extension of time to appeal – Application for new evidence refused – Appeal allowed regarding outgoings responsibility – Husband to bear outgoings initially with half deducted from wife's share – No order on costs of appeal
Legal issues: Leave to appeal out of time · Leave to adduce new evidence · Outgoings responsibility
Outcome: Appeal allowed in part; extension of time granted; new evidence application refused
Cited by 1 case · Cites 4 cases
|
FCMC 1889/2021 [2025] HKFC 68 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 1889 OF 2021 ------------------------------ BETWEEN
---------------------------
-------------------- JUDGMENT (Appeal Against Master’s Decision) (Sale of Property) -------------------- 1.This appeal concerns certain directions/orders made by a Master on how an order of sale is to be carried out. 2.The petitioner is the wife and the husband is the respondent in the present proceedings. For the ease of reference, I shall continue to refer to the petitioner as “the wife” and the respondent “the husband” notwithstanding that they have already divorced in October 2021. Background 3.At all material times, both parties are primary school teachers. They married in November 2018. 4.This marriage was a childless and short-lived one. In March 2021, the wife petitioned for divorce on the ground of husband’s unreasonable behaviour. 5.The husband did not contest the main suit. Decree nisi was granted on 22 July 2024. 6.It appeared that the main dispute in ancillary relief was over a property (“the Property”) which I believe was the parties’ former matrimonial home. The Property was purchased in the sole name of the husband a few months before the marriage. The parties were soon able to settle the ancillary relief when they appeared on 10 September 2021 before Deputy Judge R Chow who made a consent order (“the Consent Order”) disposing of the ancillary relief matters. There are two main provisions in the Consent Order only. The first is the husband is to pay the wife a nominal maintenance. The second is the husband shall, within 6 months after the grant of the decree absolute, have the Property sold at its market price. The net proceeds of sale (after deduction of outstanding mortgage, outgoing and expenses) are to be shared equally between the husband and the wife. 7.Decree absolute was granted on 21 October 2021. Hence, according to the Consent Order, the Property should have been sold by 20 April 2022. That, however, did not happen. 8.On 28 September 2022, pursuant to the wife’s application under Order 45, rule 6(1), RHC, Deputy Judge Jacqueline Lee made an order (“the Order dated 28 September 2022”) that the husband was to have the Property sold according to the Consent Order within further two months and if the husband failed to so, the wife’s solicitors be appointed to sign and execute the relevant agreements and deeds pursuant to Section 38A of the District Court Ordinance Cap 336. 9.Thus, accordingly, the Property should have been sold by 28 November 2022. This, again, did not happen. As a matter of fact, the Property remained unsold when this appeal was heard. 10.There was then a lapse of around 18 months. On 5 June 2024, the wife took out a summons (“the Wife’s Summons”) returnable on 9 July 2024 to enforce the sale of the Property. The husband was absent at the hearing. After having heard submissions by the wife’s counsel, Master Chak granted the orders (“the Order dated 9 July 2024”) prayed for by the wife with costs against the husband. I set out the relevant provisions:
11.It is significant to note that the Order dated 9 July 2024 does not impose any time limit within which the wife has to sell the Property. 12.There was then a lapse of more than 3 months. It was not until 28 October 2024 that the husband lodged a Notice of Appeal seeking to overturn paragraphs (f) and (g) of the Order dated 9 July 2024. He also seeks leave to adduce new evidence as contained in his Affirmation dated 25 October 2024 (“the Husband’s Affirmation”). The Husband’s Appeal 13.It is not in dispute that the Master had the jurisdiction to make further directions on how the sale is to be conducted. Jurisdiction can be found in section 6A, Matrimonial Proceedings and Property Ordinance, Cap 192 or on the court’s power to make a supplemental order: see Hong Kong Civil Procedure 2025 Para 20/11/6; and LSL v MCH, FCMC 12904/2010 (date of judgment: 26 March 2013). 14.By the time of the appeal hearing before me, the husband had delivered vacant possession of the Property to the wife for the purpose of sale. It is agreed that the delivery date was 2 November 2024. 15.As I pointed out at the hearing, the Consent Order made no provision on who is to be responsible for the monthly mortgage repayments, management fees, rates and government rents (“the Outgoings”). The husband has no objection to the order that he has to settle the Outgoings prior to the delivery of vacant possession. As the husband was in occupation of the Property, it is perfectly logical that he had to be responsible for these expenses. 16.The husband, however, objects to the order that he has to be solely responsible for the Outgoings after he had delivered vacant possession. He submits that as the parties are going to share the sale proceeds equally, it is only fair that they are to share these payments equally, too. That said, he agrees to bear these payments initially with half of the wife’s share to be deducted from her share of net proceeds. This is the first point of contention. 17.The second point of contention is this. The husband considers it is unfair if he is to be solely responsible for all the Outgoings while at the same time the wife is to have the conduct of sale without any time limit as when she needs to have the Property sold, even if there is any undue delay. This would eat into the distribution that the husband is entitled to after the sale of the Property and give no incentive for the wife to sell the Property as soon as possible. Post-hearing Development 18.On 25 March 2025, the court was informed that finally a provisional agreement for the sale and purchase of the Property had been entered into on 21 March 2025 for a consideration of $4,585,000. The completion of sale is scheduled to take place on 20 June 2025. With this new development, the husband’s second point of contention has been overtaken by the event. What remains is the husband’s first point of contention. Master’s Appeal 19.Master’s appeal before a Judge is by way of actual re-hearing, and the Judge treats the matter as though it came before him for the first time: Order 58, rule 1, RHC. The judge in chambers is in no way fettered by the previous exercise of the master’s discretion. The judge, however, is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself; by so doing the judge does not fail to exercise the discretion confederated on him: see Hong Kong Civil Procedure (2025), at para 58/1/2. Hurdles for the Husband 20.There are 2 hurdles for the husband. The first is that he has to seek leave to appeal out of time and the second is he has to obtain leave for adducing further evidence by way of the Husband’s Affirmation. Leave to Appeal Out of Time 21.The Order was dated 9 July 2024. An appeal should have been lodged within 14 days, ie by 23 July 2024: see: Order 58, rule 1, RHC/RDC. Yet, his appeal was only lodged on 28 October 2024, a delay of more than 3 months. 22.The court has a discretion to grant enlargement of time to appeal: see Order 58, rule 1(3), RHC and Order 3, rule 5, RHC. In considering whether to extend the time to appeal, the court has to consider all relevant factors, particularly:
See: Hong Kong Civil Procedure (2025), para 58/1/9; and Postwell Limited v Cheng Kap Sang [2004] 2 HKLRD 355. The Length of Delay 23.As mentioned above, the husband was absent at the hearing when the Order dated 9 July 2024 was made and there was a delay of more than 3 months in taking out his Appeal. The husband accepts the length of delay is substantial. Reasons for the Delay 24.The husband’s explanation is that he was unaware of the Wife’s Summons and its hearing returnable on 9 July 2024. 25.According to the undisputed evidence, the Wife’s Summons was duly served by her solicitors by ordinary post on 6 June 2024 at the Property’s address and that at the material times, the husband was living at the Property. That was in compliance with the requirement under Order 65, rule 5, RHC. 26.The husband is a primary school teacher. He said at the relevant time in June and July he was extremely busy at work. He needed to prepare for examinations, mark examination papers, organise Extra-curricular activities and meet parents before the summer holiday. He even said, “These days hardly anything would be sent to me through hardcopy ordinary mail so it was not my habit to check the mail box in any regularity. Under these circumstances of my busy work schedule, I (sic) did not occur to me to check the mailbox during the period”. Therefore, he was not aware of the Wife’s Summons and did not appear at the hearing. He eventually came to its notice when he checked the mailbox in late July at which point it was too late. 27.The husband accepts the service of the summons was regular, it follows that any judgment or order by default obtained will also be perfectly regular: see Hong Kong Civil Procedure (2025), at para 65/5/4. The husband did not affirm to where the mailbox was located. Common sense tells me that normally the mailbox would just be a few steps away at the lobby. If I am wrong, he is the only person to blame. In my view, the husband’s explanation is a mere say-so and unsupported by any evidence such as his work schedules or activities, etc. If what the husband said about not checking the mailbox were true, it appears that he could, in his day-to-day routine, dispense with the use of it for a substantial period of time. One wonders if it means it was not necessary for him to check the mailbox for essential bills such as water charges and demand for management fees, etc? Only the husband himself knew what he said were true or not. The husband lived at the Property at the material time. Nobody knew if he had gone to the mailbox, got the Wife’s Summons and chose to ignore. Nobody knew whether he was really so busy that he could not afford even a short moment to check the mailbox. In my judgment, the husband’s explanation is unconvincing and unbelievable. I have great doubts over the veracity of his explanation. 28.Further, the evidence is that the husband was legally represented as from 31 July 2024 and he received notification on 12 August 2024 of the contents of the Order dated 9 July 2024 but it was not until more than two months later on 28 October 2024 that he filed the Notice of Appeal. 29.I agree with Mr Chan, counsel for the wife, that the delay is inexcusable. The Husband’s Application to Adduce New Evidence 30.I will deal with the husband’s application to adduce new evidence at this juncture before turning to the merits of his appeal. 31.Order 58, rule 1(5) RHC provides that, “No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.” 32.It is well settled that the phrase “special grounds” requires the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 to be satisfied: see Hong Kong Civil Procedure (2025), at 58/1/3. The Ladd v Marshall conditions are:
33.All the 3 conditions must be met. 34.At issue is the Husband’s Affirmation. Paragraph 26 of the Husband’s Affirmation is on his financial pressure when he has to shoulder the Outgoings of the Property while at the same time he has to pay his own rent for the new accommodation after he has vacated the Property pursuant to the Order dated 9 July 2024. These are post-order matters and are not caught by the Ladd v Marshall conditions. At the hearing, the husband informed the court (not disputed by the wife) that the monthly mortgage repayment of the Property is $18,000 and his current monthly rental is $9,000. 35.The rests of the Husband’s Affirmation are on explaining his absence, the factual background and what happened regarding the sale exercise. Essentially, he referred to matters and facts in support of his contention that he should not be solely responsible for the delay in the sale. As I mentioned above, I have great doubts over the husband’s reasons for absence. Further, obviously these matters could have been easily obtained and presented before Master Chak; these matters are simply not evidence that could not have been obtained with reasonable diligence for use at the hearing below. 36.For the reason that the husband fails to meet the first condition, it is unnecessary to deal with the 2nd and the 3rd conditions. The husband’s application to adduce new evidence must be refused. 37.I shall therefore proceed to deal with the merits of the husband’s appeal on the basis of the wife’s affirmation dated 30 May 2024 (“the Wife’s Affirmation”) in support of the Wife’s Summons and para 26 of the Husband’s Affirmation. The Merits of the Proposed Appeal 38.I have heard submissions on the merits of the husband’s appeal on a de bene esse basis (ie the court would hear submissions from both parties on the Appeal against the order but would reserve decision until the court’s decision on whether to grant extension of time). The Husband’s Case 39.The husband’s case is that the failure to sell the Property earlier was not solely his responsibility. The wife was also responsible for this. At one point on 18 November 2022 the wife demanded that the Property should not be sold for less than $6,010,000 and that he must seek her consent before signing any agreement. The Wife’s Case 40.The wife’s complaint is about the husband’s uncooperative attitude in allowing potential buyers to view the Property. She said in the Wife’s Affirmation that:-
41.At one point, in reliance upon some WhatsApp messages adduced in the Husband’s Affirmation, Mr Chan went so far as to say that the husband might have another property and this matter went to the affordability of the husband in shouldering the Outgoings. He indicated that the wife would need to adduce evidence on this. I do not think the issue of affordability, or to be more accurate, the husband’s financial situation, is relevant at all. The parties have long divorced with no financial obligations owed to each other and the wife is not seeking to vary-up the nominal maintenance or to have the Consent Order set aside for the reason of non-disclosure. Even allowing for one moment that the issue of affordability is engaged (which is not my view), it is only fair that the court should be able to consider the financial situation of both parties. Lastly, it is evident that the stake involved in the present appeal is not substantial; the parties should have proper regard to proportionality of costs. Discussion 42.It is all along the wife’s complaint that the husband delayed in the sale, had no intention to sell and at all times, he was living there. He did not cooperate or respond to estate agents in allowing viewing of the Property. 43.The WhatsApp communications between the husband and the estate agents adduced by the wife show the husband did not put the sale at a very high priority. It is difficult to understand why this was the case. The husband’s monthly rental for his new accommodation is just $9,000 while the monthly mortgage repayment of the Property is $18,000. That being the case, as far as arithmetic goes, apparently he did not gain any benefit by staying at the Property. Be that as it may, on evidence, I find the husband did not have much incentive to have the Property sold. 44.As for the wife, despite what she said about wanting to have the Property sold as soon as possible, from the Order dated 28 September 2022 up to her taking out the Wife’s Summons in June 2024, there was a long lapse of 20 months. It strikes me that during this period the wife took no action to enforce the sale. Except at para 16 of the Wife’s Affirmation where she mentioned having contacted the husband in November 2023 (the means of contact was not specified) questioning whether he was really minded at having the Property sold, there is no other evidence such as WhatsApp messages, letters or actions chasing the husband. There was only one letter dated 18 November 2022 issued by her solicitors (10 days before the 2 months’ extension granted under the Order dated 28 September 2022 expired) but that was not on chasing him to act fast. The letter was to impose a floor price of $6,010,000 and the husband must have obtained her consent before signing any agreement for sale.[1] With respect, it was not so provided in the Consent Order or the Order dated 28 September 2022. Bearing in mind that it was upon the wife’s own application that the Order dated 28 September 2022 extended a short period of 2 months only, it is difficult to understand why the wife had allowed the matter to have gone to sleep for such a long period of time. 45.Taking all these matters in the round, in my view, if vacant possession had been delivered to the wife and she is in control of the sale, the husband has a strong ground seeking to have the Outgoings being shared between the parties. It would be unfair to the husband if there is no time limit as to when the wife needs to sell the Property while at the same time the husband has to bear all the financial consequences of any undue delay. I have therefore come to the conclusion that there is merit in the husband’s appeal. Prejudice to the Wife 46.As I see it, for the reasons that I have said regarding the husband’s merit, there is no conceivable prejudice to the wife, especially when the husband is to shoulder the Outgoings before completion of the sale, subject to deduction from the wife’s sale proceeds. 47.Considering the matter in the round, I grant extension of time for the husband to appeal. Should the Husband’s Appeal be Allowed? 48.The length of delay and the reasons for it (or the lack of it) are only two of the factors to be taken into account in the exercise of my discretion. As I mentioned above, according to the Consent Order, the Property should have been sold by 20 April 2022. Parties are approaching the end of the third year. I am relieved to see that finally procrastination has ended with a provisional agreement for sale and purchase having been concluded. 49.I bear in mind it is incumbent on the court to give effect to the underlying objectives of the Rules of the High Court when exercising any of its powers: Order 1A, rules 1 & 2, RHC. In particular, the court must always recognise the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties as set out in Order 1A, rule 2(2), RHC: see Hady v Bazar [2012] 3 HKLRD 29, at para 46. In the present case, what the court should do is to ensure the Property be sold according to the Consent Order in a just and fair manner. As noted above, the Consent Order made no provision as to who is to be responsible for the Outgoing; and considering that the husband has already surrendered vacant possession to the wife who has the conduct of sale and that there is no conceivable prejudice or injustice to the wife, I consider that in fairness the husband’s appeal against paragraph (f) ought to be allowed. The husband should bear the Outgoings as from 3 November 2024 initially with half of the wife’s share be deducted from the sale proceeds she shall receive. 50.There are about 8 months from 2 November 2024 when the husband vacated the Property up to 20 June 2025 when the completion of sale will take place. I reckon the Outgoings are around $20,000 per month. It means the parties each would have to share around $80,000. 51.As the husband’s appeal against paragraph (g) has been overtaken by event, I make no order in this regard. Costs 52.The husband’s absence in the hearing of 9 July 2024 is of his own making. Whatever the real reason for his absence, he is the only person to blame. I would not disturb the costs order made by Master Chak that the husband is to bear the costs. 53.As for the costs of appeal, it is true that the husband is successful in his appeal. However, I am sure his reasons presented before me could have been brought to the attention of the Master for her consideration if he had responded to the Wife’s Summons. For this reason, I am satisfied that the proper order is no order as to costs of the appeal, and I so order by way of an order nisi.
Mr Jack CHAN, instructed by Cheng & Ng, Solicitors, for the Petitioner Ms Tiffany TSE, instructed by Ng & Co., Solicitors, for the Respondent | |||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under FCMC 1889/2021