Lyl also known as Lly v. Lz also known as Zl
|
FCMC 5588 / 2023 [2026] HKFC 24 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 5588 OF 2023 ----------------------------
----------------------------
______________________________________ JUDGMENT _______________________________________ 1.The Petitioner and the Respondent are referred to as the Wife and the Husband respectively. This is the Husband’s application for maintenance pending suit and litigation costs provision by Summons dated 7 March 2025 (“the Summons”). 2.By the Summons, the Husband is asking for the following:
3.The Wife opposes the application. At the substantive hearing, the Wife is represented by Mr Eugene Yim while the Husband by Mr Jeffrey Li. Background of the parties 4.The Husband and Wife are now aged 55 and 54 respectively. They met each other in the year 2000 at Kellogg Graduate School of Management, Northwestern University, USA, where they both received their MBA degrees. Subsequently they got married in Maui, Hawaii in April 2003. They gave birth to two children, namely a son currently 17 years old, and a daughter currently 10 years old. 5.The Wife was a private banker while the Husband was an investment banker. They began to set up their family investment business together since 2016. WS Limited ("WS") is a Caymen Islands company, which the Husband holds 49% shares and the remaining 51% shares are with the Wife. WS holds the entire Management Shares (i.e. the voting and controlling shares) in two Cayman Islands companies (together, the "Funds"). WS also holds the entire issued shares of a Hong Kong limited company, namely RCL (“RCL”). RCL is licensed to perform Types 1, 4, and 9 SFC regulated activities. RCL provides investment management services to the Funds through an investment management agreement. RCL was the major source of income of the parties during their marriage. 6.The Wife petitioned for divorce on the ground of 2-years’ separation in May 2023. In the Amended Petition filed on 11 September 2023, it was pleaded that the Parties separated in August 2020 (i.e. 17 years after marriage). 7.There are two children of the family who are studying in the US. The Wife is taking care of them while defined access has been granted to the Husband. 8.According to the Form E filed by the Wife dated 4 August 2023, the Wife has the net value of the assets of HK$145,843,896. Together with the two children, the monthly expenses was HK$1,259,000. The Husband’s Form E dated 4 August 2023 showed that the Husband’s assets amounted to HK$24,109,797.69. His monthly expenses was HK$279,660. The Husband’s case 9.The Husband contends that during the time when the parties still maintained amicable relationship, the RCL's Asset Under Management (AUM) was roughly HK$200 million, generating income of HK$7 to 8 million annually. RCL has never paid the Husband any salary, but the Husband alleges that he would draw money from RCL, in the form of "advances", as and when he did not have sufficient cash in his personal bank accounts. 10.However, it is no longer viable for the Husband to divert financial resources from RCL to cover his personal living expenses. Since the commencement of the divorce proceedings, the Wife, as alleged by the Husband, has executed a mere handful of trades. This lack of active portfolio management has caused several investors to redeem their investments. With the drop in AUM, the income generated by RCL has decreased substantially. The revenue generated by RCL cannot cover its daily operating expense. Further, the Wife, being the 51% majority shareholder, refused to put in more capital to RCL since March 2024, and the Husband has to use his personal savings to fill the gap between RCL’s revenue and expenses. 11.It is also the Husband’s position that during the majority of the marriage, the Husband received approximately RMB 82,000 per month in rental income from real estate investment properties jointly owned. However, since around June 2022, the Wife has instructed all tenants to remit rental payments directly to her, thereby depriving the Husband of this recurring revenue stream. 12.The Husband submits that his current monthly spending is reasonable. He sets out in his affirmation a table comparing his spending and the Wife’s expenses as mentioned in her Form E: General Expenses
Personal expenses
13.The Husband submits that comparing apple-to-apple, the Husband’s monthly budget is just HK$425,000 (HK$400,000 for himself and HK$25,000 for the children), ie. one-third of the Wife’s expenses. The Wife’s case 14.The Wife argues that there has been material non-disclosure on the Husband’s part, in that, the Husband’s supporting affirmation (filed on 7 March 2025) failed to disclose that on 22 January 2025, the Husband unilaterally took steps to remove the Wife as a director of RCL without the Wife’s knowledge or consent. The Husband has since been in exclusive control of RCL and its assets/ funds. 15.Further, the Wife contends that the Husband fails to establish that he has any immediate and reasonable need of maintenance. The Husband has the qualification, the experience, and the growing ability to earn as an investment banker. He has seized exclusive control of RCL which was a major source of income during the marriage. The Husband has realisable assets under his disposal. Legal principles on maintenance pending suit 16.The court has a discretion to direct either party to the marriage to make to the other such periodical payments for his or her maintenance under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap.192. 17.In the case of HJFG v. KCY [2012] 1 HKLRD 95, Hartmann JA (as he then was) said the following:
Discussions 18.It is the Husband’s case that the financial resources of the parties during marriage comprise three main categories: (1) money from the RCL accounts, (2) rental income of the four properties in the Mainland, and (3) cash and financial investments. I will deal with each of those financial resources in turn below. 1. Withdrawals from RCL accounts 19.The Husband says that it has been the practice and the parties’ mutual understanding that the Husband would draw money from RCL as and when he did not have sufficient cash in his personal bank accounts. 20.The Wife, however, takes issue on the alleged practice and mutual understanding. The Wife’s case is that, at the time when RCL was set up in 2017, the Wife provided 100% funding to RCL while the Husband has 100% stake because the Wife trusted the Husband back then. In about 2021, the Wife demanded to get back the 100% stake interests but the Husband refused. Eventually, the Wife compromised on getting 51 % at the end to avoid conflict. However, as a stakeholder of 49%, the Husband did not inject any capital into the company at all. The Wife was never paid by RCL and she has never drawn money from it. She usually reinvested the income of RCL for future growth. There was no practice or mutual understanding that the parties would withdraw money from RCL for living expenses. 21.The Husband, in reply, says that whilst the Wife attempts to negate their mutual consensus that the Husband would draw cash from the RCL in the form of “advances” to cover his daily expenses, there is no denial from the Wife that the Husband has, as a matter of facts, withdrawn over HK$7.76 million from the family business since 2017. In fact, the Wife, through her solicitors, sent a letter to the Husband’s solicitors on 8 March 2024 accusing the Husband of withdrawing money from RCL since 2017 without her consent. 22.As I see it, as a matter of fact, the Husband did make withdrawals from the accounts of RCL over the years. The real issue is whether the parties have the alleged mutual understanding that the Husband could draw money from RCL to meet his personal need. The Wife is now arguing that the withdrawals were unauthorised and that there is no evidence to suggest that those withdrawals were used by the Husband for his personal use. The issue cannot be resolved without oral evidence and cross-examination of the parties. In the maintenance pending suit application, the Court is unable to make a finding as to whether the Husband would and could draw money from RCL to meet his personal need. As pointed out in the judgment of the Court of Appeal in LPC v. CKHA (MPS and interim maintenance) [2022] HKCA 1190 at §47, maintenance pending suit application is not the occasion for detailed and minute investigation of finances and expenditures, and the Court should refrain from engaging in disputes that cannot be resolved without testing of evidence and full investigation in a trial proper. 23.In the case of CWK v. YCHS and Ors, FCMC 6082/2014 (unreported, 10 December 2015, DDJ Own (as he then was)), the Court awarded maintenance pending suit to the wife upon an established pattern of payment by the husband which he had ceased upon the wife’s filing of the petition for divorce. That case was referred to in SAM v. LCC [2021] HKFC 212 in which the Court could only find scattered payments between the spouses without any specific aim or purpose. The Court also found that the wife was not in need of maintenance pending suit, nor was it fair and reasonable to order the husband to make such payment. Each case, of course, depends on its own facts. The present maintenance pending suit application is not the typical situation where one party stopped making regular payments to the other upon presentation of petition for divorce. There is no evidence of an established pattern of payment by the Wife to the Husband for his daily living before presentation of the petition in the present case. Even if there were withdrawals by the Husband from RCL accounts, we are unable to determine at this interlocutory stage whether the withdrawals were authorised and were used for the Husband’s personal expenses. Any award for maintenance pending suit on the basis of what the Husband is now asking for might be regarded as an acknowledgment that the Husband had the authority to, or there was mutual understanding between the parties that the Husband could, withdraw money from RCL for his personal expenses as alleged. 2. Rental income 24.Further, the Husband contends that, since around June 2022, the Wife has instructed the tenants to make rental payments from the landed properties in the Mainland directly to her thereby depriving the Husband of the recurring revenue stream. 25.On the other hand, the Wife argues that the landed properties were not joint investment. It is the Wife’s case that the rental income was supposed to be transferred to her but the Husband secretly instructed the tenants to transfer the same to him directly. Therefore, the Wife fixed the issue after she discovered that. 26.As a matter of fact, none of the properties involved is registered in the parties joint names. The Guangzhou property is registered in the Husband’s name while the Wife is the sole owner of the other relevant properties in the Mainland. Whether the rental incomes of the properties in the Mainland were intended for the Husband’s personal expenses is again disputed by the Wife. The issue cannot be resolved without oral evidence. 3. The Husband has no financial resources? 27.The Husband says that he has lost his sole sources of income, namely the company drawings and rental income, and have been forced to deplete his personal savings to sustain his financial obligations. The Husband says that at the time of the filing of Form E, i.e. as at 4 August 2023, the total amount of bank savings and stock investment amounted to $12,493,166. However, at the time of the affirmation in support, the total amount has been reduced to $4,056,817.96. 28.The Wife takes exception on the Husband’s alleged drop of personal savings and has requested the Husband to provide copies of the bank statement covering the relevant period. The request was initially refused by the Husband who claimed that the requested documents are irrelevant and unnecessary for the interim maintenance assessment which should only be made on a broad-brush approach. Nevertheless, I was told at the substantive hearing that the Husband did disclose further bank statements and the legal team of the Wife was able to make some analysis thereon. Mr Yim, counsel for the Wife, submits that majority of the funds withdrawn from the Husband’s account were not for living expenses but were used for investment. 29.In any case, it appears that it is not the situation where the Husband does not have any financial resources at all. He has a property in Guangzhou and has the disclosed investment portfolio of about HK$3.5 million as alleged. 30.Ultimately, the Husband is submitting that, throughout the marriage, the Wife has accumulated an abundance of marital assets and liquidity in her sole name. These were the fruits of the parties’ joint effort. It is unfair for the Wife to continue her “high-flying lifestyle”, while the Husband is barely able to make ends meet. 31.However, I agree with Mr Yim’s submissions that the parties’ disparity in wealth under their respective names alone is not a reason for maintenance pending suit application. As pointed out by Hartmann JA (as he then was) in HJFG v KCY [2012] 1 HKLRD 95 at §34, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. 32.The Husband is a holder of MBA and PhD degrees. He has also enrolled an EMBA programme with one of the most reputable business schools in the Mainland. He has been an investment banker before setting up the family business. I agree with Mr Yim that the Husband should have the ability to earn given his qualification, background and experience. 4. Disclosure 33.The wife says that on 22 January 2025, the Husband removed her as a director of RCL by unilaterally filing a Notice of Cessation to Act as Director (Form ND2A) without notifying her. Further, on 6 March 2025, the Husband instructed the bank to revoke the Wife’s access to all of RCL’s online banking facilities. The Wife argues that the Husband made no mention of those important information in the supporting affirmation to the Summons which was taken out on 7 March 2025. 34.Therefore, as argued by the Wife, since early 2025, the Husband has seized the control of the RCL and should have the main income source to support his expenses. 35.In reply, the Husband says that the Wife has unilaterally made a donation of USD 100,000 from RCL’s bank account to a School in the US causing RCL’s Liquid Capital to drop thereby in the breach of the regulatory capital requirement imposed by SFC. The Husband has to inject money into the RCL in order to restore the regulatory capital requirement. Because of the alleged misconduct on the Wife’s part, the RCL board decided to remove the Wife’s directorship. 36.Further, the Husband maintains that because of the Wife’s misconduct in handling the donation and her encouragement of other investors to redeem their shares in the Funds, the damages caused to the Funds and RCL is beyond remedy, and they lost the source of income. 37.There is no doubt that for the purpose of maintenance pending suit determination, the parties are still subject to the duty to make full and frank disclosure. Disclosure must be given in a timely and orderly manner and bona fide. The material disclosed must be correct, complete, clear, comprehensible, and up to date. A litigant who gives obscure, piecemeal, or superficial disclosure, or one who adopts a “wait and see” approach in the hopes the “right questions” will not be asked, falls afoul of these principles: see CYL also known as YLLC or LC v. STN [2025] HKFC 108 at §57. 38.As I see it, the fact that the Wife was removed from the directorship of RCL and that her access to RCL’s bank accounts has been denied are highly relevant and essential which should have been disclosed in the affirmation in support of the maintenance pending suit application. My observations are as follows:
39.I come to the conclusion that the Husband has failed to make full and frank disclosure in the maintenance pending suit application. 5. Sale proceeds of the Shanghai property 40.The Husband’s Form E disclosed, inter alia, that prior to the commencement of the divorce proceedings, the Wife, as alleged by the Husband, has unilaterally sold one of their matrimonial assets, i.e. a Shanghai Property, without the Husband’s consent. The Husband then commenced a civil action in the Shanghai Court for recovery of the proceeds of sale. It was eventually settled by consent that the parties shall share the proceeds on a 50-50 basis. However, the Wife only transferred around HK$7.25 million to the Husband while the Husband argues that the Wife has failed to pay him the outstanding balance of HK$13.76 million. 41.Mr Li submits, on behalf of the Husband, that this piece of information should be considered by the Court to see if it is fair or not for the Wife to withhold the transfer. The Court raised the question of whether enforcement proceedings have been initiated. Mr Li replied that the Husband has commenced proceedings in the Beijing Court but the Beijing Court declined jurisdiction. Mr Li was unable to explain why the proceedings were commenced in the Beijing Court while the settlement was made because of the proceedings in the Shanghai Court. In any event, I consider that this is a matter of enforcement. The maintenance pending suit application should not be used by the Husband to recover any outstanding balance or any part thereof. Conclusion on maintenance pending suit 42.Maintenance pending suit is catered for immediate needs where a spouse is unable to meet by his own means. Burden is on the applicant to make out his case for immediate and reasonable need of maintenance. Having considered all the circumstances, I do not think that the Husband has made full and frank disclosure in the maintenance pending suit application, and he failed to prove to the satisfaction of the Court that there is an immediate and reasonable need of maintenance. I do not consider that it would be fair and reasonable to order the Wife to make such payment at this stage. It is therefore unnecessary for me to go into details of the amount of the expenses of the Husband. Suffice it for me to say, the Husband’s argument that his expenses is reasonable by “comparing apple - to - apple” with that of the Wife is untenable. The Wife has been paying the expenses of the children. The so-called “apple-to-apple” comparison is simply unfair in all circumstances. Litigation funding 43.For legal costs provision, the leading case of Currey v Currey [2006] EWCA Civ 1338 sets out the following conditions:
44.The Husband estimates that the total legal costs up to FDR hearing would be HK$4,129,350 (being counsel fee of HK$2,018,200 and solicitors costs of $2,111,150). Divided by 24 months, the monthly sum would be about HK$172,000. 45.At the substantive hearing, Mr Li submitted an updated Form H3 showing that the costs up to FDR would be adjusted downward to HK$3,225,873. 46.The Wife argues that the Husband should be able to pay legal costs provisions on the ground that:
47.The Husband replies that for Guangzhou property, a forced sale is prejudicial to both parties and a mortgage is not viable in the Mainland. The possible rental income of RMB 6,000 – 7,000 is only nominal. The forced liquidation of the Husband’s investment will incur unnecessary loss. Further, the Husband’s exclusive control of RCL does not facilitate his financial situation since RCL has become a financial burden now. The sum of $7.25 million has been spent on the Husband’s living expenses or for capital injection to the RCL. 48.In the case of LZ v. LY [2019] HKFC 219, the wife, in her application for legal costs provision, argued that her assets either beneficially belonged to third parties falling within TL v. ML spectrum for determination or were “non-matrimonial assets” which were irrelevant to maintenance pending suit applications. The Court did not accept her submissions. The first limb of the “Currey” tests does not provide any qualification as to the ownership of the assets which could reasonably be deployed had to be beneficially owned by the party seeking legal costs provisions. On the basic principle of whoever alleges must prove, the Court could not rely on the mere “say so” of the wife and formed the view, even on a “broad brush” approach, that those funds could not be deployed. 49.In the present case, the Husband says the property market of the Guangzhou Property has taken a steep downturn. It is not practical to dispose of the Guangzhou Property at this time to receive a fair offer, and mortgage loan against old properties as opposed to new properties is much more difficult to obtain in the Mainland, and the interest rate for such loan is higher. This is the Husband’s mere allegation. In normal circumstance, it is unlikely for the Court to expect a party to sell the matrimonial home in order to obtain funding but this is highly fact specific. If it is more likely that a property will be sold at the conclusion of the proceeding, it may well be reasonable to expect a party to charge the interest in it. In the present case, I consider that the Husband fails to demonstrate the assets cannot reasonably be deployed for funding legal services. 50.Further, the disclosed investment portfolio of the Husband adds up to HKD $3.5 million, and the Husband asserts that the remaining securities that he still holds are intended to be long-term investment. Again, the Husband fails to demonstrate why the investment cannot reasonably be deployed for funding legal services. 51.Mr Li for the Husband emphasizes that, the question is whether it is fair and reasonable to require the Husband to liquidate his final asset while the Wife has abundance of liquidity available. With respect, I do not agree with Mr Li’s submissions. Even if there is disparity of wealth between the parties, the Husband still has to satisfy the Court that he has no asset reasonably be deployed for funding legal services. 52.The Husband’s application must be dismissed. Conclusion 53.The Summons is dismissed. There be costs order nisi that the costs of the Summons be paid by the Respondent to the Petitioner with certificate for counsel. 54.If no application for variation of costs order nisi is made, the Petitioner shall submit her statement of costs (limited to 3 pages at font 14 with double line spacing) within 21 days from the date hereof and the Respondent shall submit his lists of objection (limited to 3 pages at font 14 with double line spacing) within 7 days thereafter. 55.Unless otherwise directed, summary assessment of costs shall be determined by paper disposal without oral hearing.
Mr. Eugene Yim instructed by Chaine Chow & Barbara Hung for the Petitioner Mr. Jeffrey Li instructed by Hugill & Ip for the Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment