Nckp v. Cmy

CAMP 58/2025, [2025] HKCA 850

On appeal from [2024] HKFC 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 58 OF 2025

(ON AN INTENDED APPEAL FROM FCMC NO 14399 OF 2008)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

Introduction

1.This is the renewed application for leave to appeal against an Order dated 12 December 2024 made by His Honour Judge CK Chan (“Judge”). The application is made by the Respondent wife (“W”).

2.On 15 December 2023, Master June Cheung (“Master”) ordered W to repay a sum of HK$5,600,000 to the Petitioner Husband (“H”) within 3 months (“Master’s Order”) pursuant to section 23 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”). The Master’s Order was made upon hearing the parties on H’s summons dated 12 December 2022 for a repayment order (“H’s Summons”).

3.W then appealed to the Judge seeking to set aside the Master’s Order. That appeal was heard by the Judge on 22 March 2024 (“March 2024 hearing”).

4.On 12 December 2024, the Judge handed down his Judgment (“Judgment”) in which he ordered inter alia (“Order”):

(1)  W do pay a sum of HK$5,600,000 to H forthwith.

(2)  W do, on a nisi basis, pay H’s costs of the appeal including all costs reserved with certificate for counsel.

5.On 24 December 2024, W issued a summons before the Judge for leave to appeal against the Judgment. She also asked for a stay of execution pending her appeal.

6.By a Decision dated 7 March 2025 (“Leave Decision”), the Judge dismissed W’s application for leave to appeal as he was not satisfied that W had any reasonable prospect of success in her intended appeal or there was any other reason in the interests of justice that leave to appeal should be granted. The Judge also dismissed W’s stay application.

7.By Summons dated 19 March 2025, W renewed her application to the Court of Appeal for leave to appeal against the Judgment[1] (“Leave Summons”). In her Leave Summons, W seeks (1) leave to appeal against the Judgment; (2) stay of execution of the Judgment pending appeal; and (3) costs of the Leave Summons be in the cause of the intended appeal.

8.In the draft Notice of Appeal (“NOA”) attached to the Leave Summons, W seeks the following Orders:

(1)  the Judgment be set aside;

(2)  trial directions, and/or other case management directions as the Court may deem fit (including but not limited to directions on filing of pleadings), be given in respect of the further conduct of H’s Summons; and

(3)  W’s costs of H’s Summons incurred below and the appeal therefrom be paid by H.

9.As for the grounds of her intended appeal, they will be discussed in detail later. At the moment, all we need is to set out the following 3 broad grounds (“Grounds of Appeal”) ie:

(1)  The Judge erred in proceeding to determine H’s Summons summarily on affidavit (“Ground 1”).

(2)  Even if it was appropriate for the Court to proceed to finally determine H’s Summons on a summary basis, the learned Judge did not apply the correct approach in his evaluation of the factual disputes involved. In the analogous situation where summary judgment is sought under RHC O 14 or O 28 r 3, the Court should not simply reject the factual allegations put forward by the defendant, unless it is obvious that it is frivolous, practically moonshine, or not capable of being believed (“Ground 2”).

(3)  The Judge erred, as a matter of principle, in ordering that the HK$5,600,000 be paid forthwith (“Ground 3”).

10.Having considered the papers before us, we are of the view that it is appropriate to deal with the Leave Summons on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap 4A.

Salient Background

11.What follows is taken from paras [4]-[11] of the Judgment.

12.At the time of the Judgment, H was aged 72 and W was aged 67. They were married in 1977. Two sons were born within wedlock viz “M” aged 43 and “HN” aged 38. Both sons were living independently.

13.In 2008, H petitioned for divorce. Subsequently a consent order was granted on 12 February 2009 (“2009 Order”). Paragraph [1] stipulated:

“1. [H] do pay [W] a sum of HK$40,000 per month as maintenance pending suit for [W] commencing on the date of decree nisi and subsequent payments to be paid on the 1^st day of each succeeding month until the making of Decree Absolute and thereafter to continue to pay at the same rate as periodical payment during joint lives of the parties or until [W] shall remarry whichever is the shorter or further order of the Court.” (emphasis supplied)

14.From the terms of the 2009 Order, H’s liability to pay under it ceased if inter alia W remarried. As it happened, W remarried on 13 October 2010 in the US. This is not in dispute.

15.H’s case is that he was initially unaware of W’s remarriage and accordingly continued to make monthly payments of HK$40,000 to W until 15 June 2022, when M told him of W’s remarriage. H calculated he had overpaid 140 months’ maintenance totalling HK$5,600,000. He therefore took out H’s Summons under section 23 MPPO on 12 December 2022 for repayment of the said sum from W.

16.The call-over hearing for H’s Summons took place before the Master (then a Deputy Judge of District Court) on 15 February 2023 (“Call-over hearing”). After hearing counsel for H and solicitor for W, the Deputy Judge gave directions for the filing of affirmations without further ordering the filing of pleadings or giving leave to cross-examine the deponents (“Master’s Directions”) and adjourned the summons to 23 June 2023 for oral argument. Time extension for the filing of affirmations were later sought and granted, and the hearing date was re-fixed to 15 December 2023. At the re-fixed hearing, Master June Cheung considered the parties’ affirmation evidence and submissions from counsel. The Master then ruled in favour of H and made the Master’s Order.

17.On 8 January 2024, W issued a Notice of Appeal against the Master’s Order. On 7 February 2024, W applied by Summons for a stay of execution pending determination of the appeal before the Judge. The appeal hearing before the Judge was the March 2024 hearing and resulted in the Judgment handed down on 12 December 2024.

18.What happened next has already been set out in the Introduction section of this Judgment.

The Judgment and the Leave Decision

19.At the 22 March 2024 hearing, W’s primary case was that H’s Summons should not have been determined without a trial.

20.W submitted that the purpose of section 23 MPPO was to empower the Court to control over the recovery claim, instead of easing the claimant’s burden to show his entitlement, or providing any shortcut for making the claim. The Court had to decide whether it would be unjust to require the recipient to repay the full sum, or a lesser sum, or at all. This would require the case to proceed as an ordinary civil case in which the substantive rights and interests of the parties are to be determined. Analogy was drawn to disputes on ownership of matrimonial properties with third parties that formal pleadings should be ordered and the case should not be determined on affidavit evidence alone: Judgment at [20] – [21].

21.Before looking at how the Judge dealt with W’s primary case, we should set out the relevant parts of section 23 MPPO:

“23. Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage

(1) Where—

(a) an order to which this section applies has ceased to have effect by reason of the remarriage of the person entitled to payments under the order, and

(b) the person liable to make payments under the order or his or her personal representatives made payments in accordance with it in respect of a period after the date of such remarriage in the mistaken belief that the order was still subsisting,

no proceedings in respect of a cause of action arising out of the circumstances mentioned in paragraphs (a) and (b) shall be maintainable by the person so liable or his or her personal representatives against the person so entitled or her or his personal representatives; but on an application made under this section the court may exercise the powers conferred on it by subsection (2). (Amended L.N. 145 of 1992)

(2) The court may order the respondent to an application made under this section to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in subsection (1)(b) or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application.”

22.At [24]-[27] of the Judgment, the Judge decided against W’s primary case for the following reasons:

(1)  Apart from section 23(1) and (2) MPPO, there are no other provisions governing the procedure for such a claim. Such simple and straightforward provisions are meant for the matter to be dealt with in a rather summary manner, instead of through an elaborate procedure, including the filing of pleadings and going through all those interlocutory steps as in ordinary civil proceedings.

(2)  Section 23’s simplicity is reflected in the 3 main issues involved in claims under this provision: (i) whether the paying party’s liability to pay maintenance had ceased owing to the receiving party’s remarriage (ii) whether the paying party was under a mistaken belief in continuing with the payments; and (iii) whether it is unjust to order full repayment or any repayment at all.

(3)  The Master had a wide discretion in deciding how the parties’ disputes were to be adjudicated under her case management powers. She was entitled to direct the parties to file affirmation evidence without ordering the deponents to attend court and be cross-examined on their affirmations. Such an exercise of her wide discretion was not to be lightly disturbed.

(4)  After the Master’s Directions on case management given on 15 February 2023, there was no attempt on W’s part to vary them, either (i) after the parties had filed their affirmation evidence when the issues in dispute had been crystallised or (ii) at the date of hearing of argument. There was also no attempt to appeal against the Master’s Directions.

23.The Judge then proceeded to rehear H’s Summons and dealt with the 3 main issues involved at [30]-[42] of the Judgment.

24.First, whether H’s liability to pay maintenance ceased upon W’s remarriage in 2010. The Judge held that by virtue of sections 9(1) and 9(2)(a) of MPPO, which were reiterated in the 2009 Order, H’s liability ended and the maintenance Order ceased to have effect upon the W’s remarriage in October 2010.

25.Second, whether H mistakenly believed he had to continue paying maintenance. The Judge was satisfied on the evidence that H was unaware of W’s remarriage until he was told about it by M. H’s evidence was supported by M and his wife (“A”) to the effect that they were expressly told by W not to inform H as that would affect the maintenance payments by H. On the other hand, there was no direct evidence from W on H’s knowledge of her remarriage. W only suggested that owing to the closeness between H and M, there was no way that H would not have known about her remarriage from M.

26.The Judge found there was no evidence at all that H was aware of W’s remarriage before June 2022. The Judge thus concluded H was not aware of W’s remarriage until he was told by M in June 2022 and that his continuation to pay maintenance after October 2010 and until June 2022 must be under a mistaken belief that his liability to pay maintenance under the 2009 Order was still subsisting.

27.Third, whether it was unjust to order repayment by W. The Judge considered that prima facie H was entitled to a repayment order: section 23(2) MPPO.

28.The Judge then proceeded to consider whether it was unjust in all the circumstances of the case to make a repayment order. The Judge concluded it was not unjust for the following reasons.

(1)  There was evidence that W concealed her remarriage from H by telling M and A not to let H know about it.

(2)  In November 2022, 4 months after H confronted W about the overpayments but before he commenced proceedings under section 23 MPPO, W took a reverse mortgage over a property she received under the maintenance agreement and obtained a lump sum of HK$1,820,000 and a monthly sum of HK$22,509.24. There was no credible explanation why W suddenly needed the reverse mortgage. Nor was there evidence to show where the HK$1,820,000 had gone. The Judge inferred this was W’s attempt to defeat H’s claim for repayment.

29.The Judge then ordered W to repay H forthwith since W’s counsel intimated there should not be an order for payment within 3 months which the Judge took to mean W did not need time to repay.

The Judge’s Leave Decision

30.As noted by the Judge in the Leave Decision at [7], according to Mr Leo Wong for W, there were 3 main grounds of appeal ie:

(1)  The Judge was procedurally wrong in determining H’s summons for repayment based on affirmation evidence alone and without affording W a chance to cross-examine the deponents on H’s side.

(2)  The Judge was wrong in deciding the issues on balance of probabilities instead of a higher threshold as in summary judgment applications.

(3)  The Judge misunderstood W’s position and ordered her to pay within a specified deadline.

31.On the first ground, the Judge pointed out that at the hearing of her leave application, Mr Leo Wong’s emphasis was placed on the court’s refusal to allow oral evidence to be heard with cross-examination before proceeding to determine the merits of H’s claims: Leave Decision at [9].

32.While the Judge accepted the Court had powers to direct viva voce evidence to be given, the exercise of such case management powers was a matter of discretion when the matter came before Deputy Judge Cheung (when Master June Cheung then was) at the Call-over hearing. Even at the hearing of substantive argument before the Master on 15 December 2023, there was still no request for the giving of viva voce evidence. W only made this request at the 22 March 2024 hearing before the Judge: Leave Decision at [10].

33.The evidence on H’s unawareness of W’s remarriage was clear and overwhelming. Viewed in this light, W’s very late request for cross examination after losing before the Master was a fishing exercise hoping that something might turn up in cross examination. Such a request was simply too late to be entertained: Leave Decision at [11].

34.As for W’s contention that H’s claim for repayment was time barred after a lapse of 6 years of her remarriage in October 2010, the Judge’s answer was this: given his findings of fact that H was not aware of W’s remarriage until June 2022 and thus his continual payment of maintenance from October 2010 to June 2022 was under a mistake, the limitation period, if any, simply did not start to run until H had discovered the mistake: Leave Decision at [12].

35.On the second ground, the Judge’s short answer at [15] of the Leave Decision was that H’s Summons was not made under Order 14 which only required a defendant to show a triable issue before the court would grant leave to defend. The Judge therefore held the standard of proof governing H’s claim remained the civil standard of balance of probabilities.

36.On the third ground, W contended the Judge was wrong to order her to pay forthwith. The Judge rejected that contention and took the view that when the Master allowed W to pay within 3 months, it was already an indulgence to her. Further, W was not a person without means and she had not made any reasonable proposal for payment by instalments for the court’s consideration. Lastly, W had by then had 15 months[2] to make arrangements for repaying H: Leave Decision at [17] – [18].

Deliberation

Ground 1

37.Ground 1 of Appeal states:

“1. The learned Judge erred in proceeding to determine H’s summons summarily on affidavit …”

38.Mr Leo Wong explains at para 2 of his Written Statement for W (“W Statement”) that the major issue in the intended appeal is whether it is procedurally appropriate for the Court to determine H’s Summons finally without trial or offering any chance to W to cross-examine the deponents on H’s side.

39.Ground 1 contains a number of sub-grounds which purportedly explain the Judge’s error. We have examined them and find none of them meritorious.

40.In sub-ground (a), W argues that the Judge erred in law in not accepting that section 23 MPPO creates a statutory cause of action in substitution of other common law cause(s) of action which may otherwise be available to the applicant, including e.g. payment by mistake or money had and received. By analogy, a claim under this section is one which determines the parties’ substantive rights and should be “approached as in standard claim of ownership of property” with the formal rules of evidence applied.

41.At para 3 of W’s Statement, Mr Wong refers to The Annotated Ordinances of Hong Kong, Matrimonial Proceedings and Property Ordinance (Cap 192) [23.06] for the proposition that section 23 MPPO is intended to create a statutory cause of action substituting the common law action for money had and received and payment under mistake.

42.At para 4 of W’s Statement, Mr Wong submits that following cases were cited to the Judge in support W’s contention that in relation to H’s Summons, the general law of property should be followed with formal rule of evidence observed: LLC v LMWA [2019] 2 HKLRD 529, §§20-21; TL v ML [2006] 1 FLR 1263, §34; LKW v DD (2010) 13 HKCFAR 537, §§69, 124; Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605, §29. It follows that, as the starting point, the H Summons should not be determined without a trial.

43.To start with, The Annotated Ordinances of Hong Kong, Matrimonial Proceedings and Property Ordinance (Cap 192) [23.06] does not support the proposition put forward by Mr Wong. That paragraph simply says the remedy which, but for section 23 MPPO, would be available in some cases is an action for money had and received to the plaintiff’s use. Even if section 23 MPPO does create a statutory cause of action which either co-exists with or replaces a common law action, how that supports sub-ground (a) is not explained. In our view, it is totally irrelevant.

44.Similarly, the authorities referred to at para 4 of W’s Statement are also irrelevant as they certainly do not support the proposition that, for a claim under section 23 MPPO, the general law of property should be followed with “the formal rules of evidence observed”, whatever that phrase is supposed to mean.

45.LLC v LMWA at [21], Leung Wing Yi Asther at [29], and TL v ML at [34] only decided that, in a matrimonial context, issues of ownership between a spouse and a third party must be decided by the general law of property. Thus in some or even many cases, formal pleadings are required in order to identify the issues for determination.

46.The context of LLC v LMWA can be found at [18]:

“18. We start by making some general observations on the resolution of dispute of beneficial ownership which may involve third party interest in the context of ancillary relief applications. In TL v ML [2006] 1 FLR 1263, Deputy High Court Judge Mostyn QC highlighted the difference between determining a dispute of ownership between a spouse and a third party and the discretionary exercise of determining ancillary relief between spouses. Procedurally, he opined as follows at [36] and [37]:

‘[36] In my opinion, it is essential in every instance where a dispute arises about the ownership of property in ancillary relief proceedings between a spouse and a third party, that the following things should ordinarily happen:

(i) The third party should be joined to the proceedings at the earliest opportunity;

(ii) Directions should be given for the issue to be fully pleaded by points of claim and points of defence;

(iii) Separate witness statements should be directed in relation to the dispute; and

(iv) The dispute should be directed to be heard separately as a preliminary issue, before the financial dispute resolution (FDR)…’”

47.It is in this context that Lam Acting CJHC observed at [21]:

“21. We agree that issues on ownership between a spouse and a third party, insofar as it is necessary to determine the same, have to be decided by reference to the general law of property and in many cases formal pleadings should be required in order to identify the issues for such determination.”

48.Similarly, TL v ML [2006] 1 FLR 1263 at [34] are taken out of context, as can be seen from the following:

“The procedure referable to this claim

[33] It is well established that a dispute between a spouse and a third party as to the beneficial ownership of property can be adjudicated in ancillary relief proceedings…

[34] It is to be emphasised, however, that the task of the judge determining a dispute as to ownership between a spouse and a third party is, of course, completely different in nature from the familiar discretionary exercise between spouses. A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division.”

49.Lastly, in Leung Wing Yi Asther, what Stock NPJ observed (and lamented) at [29] was this:

“29. However, no direction was sought and none given for the filing of pleadings or for the discovery of documents in support of and directed to the preliminary issue. That omission was unfortunate… In this regard, I endorse the practice commended by the Court of Appeal that in the context of matrimonial proceedings for ancillary relief, disputes between a spouse and a third party as to ownership of property should procedurally be approached as in standard claims for ownership of property: in other words, after a direction for trial of the dispute as a preliminary issue and the joinder of the claimant as intervener, by directions for the filing of pleadings on the preliminary issue and for witness statements and discovery relevant to that issue.[3] ”

50.This case is not concerned with disputes of beneficial ownership between a spouse and a third party at all. This is a dispute between ex-spouses as to whether H knew about W’s remarriage and whether it was unjust to order W to repay H’s mistaken periodical payments. They are of entirely different nature.

51.Thus, Mr Wong wholly fails to explain why H’s Summons should not be determined without a trial.

52.Sub-ground (a) is unarguable.

53.Under sub-para (b), W argues that the Judge erred in considering himself bound by the Master’s Directions so that he could not determine H’s Summons other than summarily, in the absence of any variation or appeal. This is because firstly, the Master’s Directions do not purport to prohibit a party from subsequently seeking a direction that the summons be adjourned for trial or directions that the witnesses should attend court for cross-examination, and secondly, the Master’s Directions could not have the effect of excluding the Judge’s power to give appropriate directions as may be required for a fair and just resolution of the dispute.

54.At para 7 of W’s Statement, Mr Wong submits that the appeal before the learned Judge was a de novo hearing in which the Judge is not bound by case management decisions made by the Master, citing Taiping Trustees Ltd v BOSC International Company Ltd [2023] HKCFI 1189 at para 24. However, instead of considering whether live evidence should be taken, the Judge placed heavy reliance on the Master’s Directions.

55.At para 8 of W’s Statement, Mr Wong boldly asserts that seemingly the Judge found himself bound by those directions, and in the absence of variation or appeal, “he could not (rather than should not) determine the matter other than summarily.” Reference is then made to one sentence in the Leave Decision at para 10.

56.It is of course trite law that on an appeal to a judge in chambers, the judge treats the matter as though it came before him for the first time. The appeal is a de novo hearing of the application which led to the decision under appeal: Taiping Trustees Ltd at para 24. But what Mr Wong has again omitted to make clear is that at para 24, Bebe Chu J went on to state the following which is equally trite:

“…Having said this, it is clear that the judge may give weight it deserves to the master’s decision, and if the judge thinks fit, to adopt the master’s reasoning.”

57.As Ms Fiona Chong submits in H’s Statement in Opposition (“H’s Statement”), the Judge was well aware that appeal before him was a de novo hearing such that he was not bound by the Master’s Directions on case management: paras 12 and 25 of the Judgment. The Judge, at para 28 of the Judgment, also correctly took it as one of the considerations that a judge should not “lightly interfere” with case management decisions of a master: X v Dr Hung Cheung Tsui & Anor unrep., HCPI 67/2014 23 May 2017 at para 10.

58.Regarding the Leave Decision, we disagree with Mr Wong that there is anything in para 10 which remotely suggests that the Judge found himself bound by the Master’s Directions and that he could not determine the matter other than summarily. On the contrary, if one properly reads paras 10 and 11 of the Leave Decision, it seems to us that the Judge had exercised his own discretion to reject the late request[4] for cross-examination of the deponents of the affirmations. The reason given was that it was wholly unjustified and unnecessary in light of the state of the affirmation evidence before him.

59.On appeal from a judge in chambers, the Court of Appeal will treat the substantive discretion as that of the judge, and not of the master: Yong Li Investments Ltd v Lee Sing Leung Robin [2018] HKCFI 1711 at para 15.

60.It is well-established that case management decisions are only subject to appeal in rare circumstances. The appellant faces a very high hurdle and must show that the Judge has gone clearly wrong. An appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at para 31.

61.While the Judge has made a passing remark in para 10 of the Leave Decision that “the exercise of such case management powers was a matter of discretion when the matter came before Deputy Judge Cheung (when Master June Cheung then was) at the call-over hearing”, there is nothing inaccurate about that remark itself and there is nothing untoward for the Judge to have made that remark at all.

62.Sub-ground (b) is unarguable.

63.In sub-ground (c), W argues that the lack of objection by W against the Master’s Directions before the substantive hearing did not amount to any binding waiver or estoppel preventing her from seeking trial directions or a chance to cross-examine the deponents subsequently. If a concession was deemed to have been made by W, she should be allowed to withdraw it.

64.To put the record straight, not only was there no objection by W against the Master’s Directions before the substantive hearing, as Ms Chong points out in H’s Statement at para 9, neither party had requested the filing of pleadings or cross-examination of witnesses at the Call-over hearing. In fact, after the Master’s Directions, there was a Consent Order made by Deputy Judge June Cheung dated 14 June 2023 granting leave to the parties to file affirmations and vacating the hearing for argument fixed on 23 June 2023 for it to be re-fixed. There was no such request in that Consent Order either.

65.As can be seen from our discussion on sub-ground (b) above, there is nothing to suggest the Judge rejected the late request for cross-examination of the deponents of the affirmations on the ground of waiver, estoppel or that W was deemed to have made a concession. Nor can we see how the Judge can be said to have erred in proceeding to determine H’s Summons summarily on affidavit just because there was no waiver or estoppel and no concession had been deemed to have been made by W. The one does not follow the other.

66.Sub-ground (c) is unarguable.

67.In sub-ground (d), W argues that the Judge did not expressly address in the Judgment the limitation issues. It is therefore unclear whether the Court accepted that limitation period (which we assume, without deciding, is 6 years) began to run from the time of mistaken payment: Baker v Courage & Co [1910] 1 KB 56, so that prima facie, H’s claim for payments made 6 years before H’s Summons was time-barred.

68.The reference to Baker v Courage & Co is wholly misleading for a number of reasons.

69.First, it was decided on the basis that money had been paid under a mistake of fact which was shared by both the party paying and the party receiving it. That is obviously not the present case – W had made no mistake about her own remarriage.

70.Second, as the learned editors of McGee LIMITATION PERIODS 9^th Ed at para 20.651 explain, Hamilton J in that case held it was necessary to distinguish between cases where both parties were mistaken and cases where only one party was mistaken. In the latter case, time would not start to run until the party seeking to set the transaction aside had knowledge of the mistake. In the present case, that would on the evidence be sometime in June 2022.

71.Third, it was decided long before the UK 1980 Limitation Act on which the Limitation Ordinance Cap 347 (“LO”) was based and the law has since moved on. The learned editors of McGee LIMITATION PERIODS at para 20.652 opine, the relevant section draws no distinction between different classes of mistake - the only question is whether the claimant has discovered or could with reasonable diligence have discovered the mistake. Only when this condition is satisfied will time begin to run.

72.In the present case, the Judge’s clear findings of fact were that H was not aware of W’s remarriage until June 2022. There was no suggestion of any date by W as to when H could with reasonable diligence have discovered it.

73.With the above in mind, we are of the view the Judge has already dealt with W’s complaint adequately in para 12 of the Leave Decision ie given his findings of fact that H was not aware of W’s remarriage until June 2022 and thus his continual payment of maintenance from W’s remarriage until then was under a mistake, whatever the limitation period might be, it did not start to run until H had discovered the mistake.

74.Sub-ground (d) is unarguable.

75.In sub-ground (e), W argues that the 9 affirmations of 5 deponents filed by both sides clearly show this matter involves conflicting factual allegations the difference of which cannot be properly resolved without cross examination. In light of the serious dispute on facts, it is clearly inapt to embark on a mini-trial on affidavits.

76.There is no indication in sub-ground (e) what those conflicting factual allegations are which cannot be properly resolved without cross examination. It is only in paras 16 and 17 of W’s Statement that Mr Wong reveals and submits that (i) the issue about H’s knowledge[5] of W’s remarriage is hotly contested, the resolution of which depends heavily on the credibility of the witnesses; and (ii) the fact that W did not inform H directly did not mean the latter must have no knowledge about the remarriage.

77.We do not agree.

78.As Ms Chong puts it, the dispute as to whether and when H had knowledge of W’s remarriage is in fact simple.

79.At para 11 of the Leave Decision, the Judge was categorical that there was clear and unequivocal evidence from H and his witnesses that H had never been told of W’s remarriage until very recently. On the other hand, there was no evidence from W and her witness that they had, or anyone had, ever actually informed H of W’s remarriage. The evidence on H’s unawareness of W’s remarriage was clear and overwhelming.

80.Sub-ground (e) is unarguable.

81.For the above reasons, we are of the view that Ground 1 has no reasonable prospect of success.

Ground 2

82.Ground 2 of Appeal states:

“Alternatively, even if it was appropriate for the Court to proceed to finally determine H’s summons on a summary basis, the learned Judge did not apply the correct approach in evaluation of factual disputes involved”.

83.Ground 2 contains 3 sub-grounds which purport to explain the Judge’s error. But the main complaint is simply that the Judge ought to have applied the test in applications for summary judgment under Order 14 instead of simply on balance of probabilities. If he had done so, he should have decided against H’s Summons.

84.The simple answer can be found in para 23 of H’s Statement: the Judge was not (nor the Master for that matter) faced with an O14 application. W has failed to establish with authorities why the test applicable to O14 applications would somehow be applicable to the present case. As the Judge held in the Leave Decision at para 15, H’s Summons must be determined on the usual civil standard of balance of probabilities. We are not aware of any other standard which can legally be applied in a civil claim.

85.We are of the view that Ground 2 has no reasonable prospect of success.

Ground 3

86.Ground 3 of Appeal states:

“Further or alternatively, the learned Judge erred, as a matter of principle, in ordering that the $5,600,000 judgment be paid forthwith”. (emphasis in original)

87.Ground 3 contains a number of sub-grounds but the main complaint appears to be set out in para 27 of W’s Statement at which Mr Wong argues that the Judge had misunderstood W’s position. There is no justification for the Judge to exercise his power to impose a deadline for repayment. Instead, the Judge ought to have ordered W to repay HK$5,600,000 to H without adding the word “forthwith”.

88.In our view, that argument completely misses the point. An Order for payment of money does not have to specify a time for compliance and is still enforceable: RDC Order 42 rule 2(2); Hong Kong Civil Procedure 2025 Vol 1 para 42/2/4. Hence, it would not have made any difference whether or not the Judge had added the word “forthwith” in the Order.

89.In any event, as the Judge noted in the Leave Decision at [18], it was almost 15 months ago[6] when the Master’s Order was made. If one counts up to the date of the Judgment, it would still have been 12 months ago from the Master’s Order. Either way, W should have had enough time to make the necessary arrangement for payment. We do not see anything wrong in principle for the Judge to have ordered W to repay forthwith.

90.Ground 3 has no reasonable prospect of success.

Conclusion

91.To conclude, for the above reasons, we are of the view that W has failed to put forward any ground of appeal which has a reasonable prospect of success. Nor has W put forward any other reason why in the interests of justice the appeal should be heard. The renewed leave to appeal application and consequently the stay of execution pending appeal application must be dismissed.

Disposition and costs

92.We hereby dismiss the Leave Summons.

93.As for costs, H seeks a total sum of HK$61,662, including counsel fees of HK$23,000. On a broad-brush approach, we summarily assess H’s costs at HK$55,000 to be payable by W forthwith.

94.As this application is in our view wholly without merits, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, we further order that no party may request under rule 2A(7) that the present determination be reconsidered at an oral hearing inter partes.

Ms Fiona Chong, instructed by M/s Fan & Co., for the Petitioner

Mr Leo Wong, instructed by M/s Joseph M K Chan, for the Respondent