Asha Harkishin Premsingh v. Harkishin Isarsingh Premsingh Kishinani

HCMP003436/2000

HCMP 3436/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3436 OF 2000

(ON APPEAL FROM FCMC NO. 10800 OF 1999)

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Coram: Hon Woo JA and Burrell J in Court

Date of hearing: 3 November 2000

Date of handing down of judgment: 9 November 2000

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J U D G M E N T

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Hon Woo JA (delivering the judgment of the Court):

1. This is an application for leave to appeal out of time against the order made on 7/4/00 by Deputy District Judge Chainrai ("the Judge").

History of proceedings

2. The parties are an ethnic Indian couple. The wife petitioned in matrimonial proceedings in the Family Court, being FCMC 10800 of 1999 ("the HK petition") on 6/11/99 for divorce on the ground of the husband's behaviour. The husband opposed the HK petition. He had taken out a petition in the Family Court of Mumbai, India on 29/9/99, being MJ Petition No 3390 of 1999 ("the Mumbai petition") for divorce on the grounds of behaviour and adultery.

3. There were a number of applications before the Hong Kong Family Court, as follows:

(a) the wife's summons dated 8/11/99 seeking maintenance pending suit;

(b) the wife's summons dated 24/11/99 for an order that the disposition of a property in Hong Kong made by the husband dated 6/11/98 to Ipson Properties Limited be set aside;

(c) the husband's summons dated 22/2/00 for an order that the proceedings arising from the prayer for dissolution contained in the HK petition be stayed; and

(d) the wife's summons dated 23/2/00 for an order that the husband be restrained from proceeding with the Mumbai petition.

4. The summonses were heard on 25/2 and 26/2/00 by the Judge. By order dated 25/2/00, the wife's summons dated 24/11/99 (item (b) above) was adjourned, and the husband was ordered to file an affidavit of means. The Judge delivered her ruling on 7/4/00 and made the following order, namely, the husband do pay the wife maintenance pending suit in the sum of HK$21,000 per month, the first payment to be made on 15/4/00 and thereafter on the 15th day of each succeeding month until further order, and that such payment to be made by direct credit into the wife's bank account, namely the Hong Kong and Shanghai bank account no. 181-4-084438 Wayfoong House branch, Kowloon. Although not made the subject of a formal order, in her ruling of 7/4/00, the Judge also dismissed both the wife's application to restrain the husband's proceeding with the Mumbai petition and the husband's application to stay the HK petition.

5. By another summons dated 10/4/00, the wife applied for an order that a penal notice be endorsed to the order dated 25/2/00 that the husband do file an affidavit of means within the next 28 days. On 25/4/00, the Judge made an order that the husband do file and serve an affidavit of means within 28 days of that date exhibiting thereto a certificate of earnings, copies of statements of all bank accounts for the past two years, copies of business accounts, if any, including balance sheets for the past two years and a list of assets and liabilities with details of any change during the last two years; and that a penal notice be attached to the order and there be personal service of the penal notice on the husband.

6. By summons dated 26/6/00, which was amended, the husband sought leave of the Hong Kong Family Court to appeal against the Judge's order of 7/4/00 out of time and a stay of execution of the order as well as all further proceedings in the action pending the determination of the appeal. On 7/7/00, the Judge dismissed the summons. By summons dated 13/7/00 taken out in HCMP 3436 of 2000, the husband applied for the same relief from the Court of Appeal. Mayo VP refused the application on 28/7/00. By summons dated 2/8/00, the husband has applied to this court again for the same relief. This is the application before us.

Mayo VP's reasons for refusing leave

7. It is pertinent to note why Mayo VP refused the husband's application. He gave his reasons as follows:

"I have considered this application with some concern. The main problem which arises is the fact that in my view no satisfactory explanation has been given for the considerable delay which has occurred namely from the middle of April until very recently.

In this connection it has to be observed that the husband has been receiving legal advice and was represented at the February hearing.

Also no satisfactory explanation has been forthcoming for the failure of the husband's legal advisors to call in aid the medical evidence relating to the husband's physical condition. In this connection it is in my opinion significant that no doctor has given an opinion that the husband would be unable to travel to Hong Kong in his present condition. It is further to be noted that the husband has in the not too distant past travelled extensively and it is by no means apparent that there has been a significant decline in his physical condition recently.

Although I consider that it is likely that leave to appeal would have been granted if the applicant had made the application timeously I am not persuaded that having regard to the matters I have referred to it would be right to accede to this application."

The applicable tests

8. It is well settled that the appropriate tests in the consideration whether leave to appeal out of time ought to be given are the length of the delay, the reasons for the delay, the chances of success of the proposed appeal, and the extent of prejudice that would be caused to the other side if leave is granted: see Norwich and Peterborough Building Society v Steed [1991] WLR 449, followed by Birkenhead Properties & Investments Ltd v Leung Yiu & Ors [1998] 1 HKLRD 527.

9. Order 59, rule 13 of the RHC provides that except so far as the court below or the Court of Appeal or a single judge may otherwise direct, an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below. The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal: World Trade Centre Group Ltd & Anr v Resourceful River Ltd & Anr, Civ App No 70 of 1993 (Litton JA; 12 May 1993, unreported). That hurdle is higher than that of chances of success for considering whether leave to appeal should be granted.

Chances of success of the appeal

10. Mayo VP seemed to be satisfied that there are reasonable grounds for appealing against the Judge's order by saying that "it is likely that leave to appeal would have been granted", and having perused the ruling of 7/4/00 and the proposed grounds of appeal, we tend to agree with him. We shall revert to this aspect later.

11. However, the Vice-President refused leave because of the "main problem" that he was not satisfied that there was reasonable explanation for the delay from about the middle of April until very recently in seeking to appeal. The reasons for the delay were closely connected to the husband's alleged ill health. As the Vice-President refused to grant leave to appeal out of time, he did not have to resolve the question whether stay of execution should be granted.

The husband's ill health

12. Since Mayo VP's refusal of the husband's application for leave to appeal out of time placed reliance on the absence of medical evidence on the husband's alleged ill health and his inability to travel to Hong Kong, those representing the husband now seek to place before us a number of medical reports prepared by various doctors: 2 made in 1994, 1 in 1995, 1 in 1998, 1 in 1999 and 3 in 2000. The last two reports in 2000 were not before Mayo VP. They have also prepared a draft Notice to Adduce Additional Evidence on Appeal which evidence is the medical evidence now put before us. Ms Irving, for the wife, objects to this evidence being adduced on the ground that it has not satisfied the criteria laid down in Ladd v Marshall [1954] 1 WLR 1489. However, Ms Irving is very fair to draw our attention in her list of authorities to the case of Po Kwong Marble Factory Ltd v Wah Yee Decoration (No 2) [1997] 3 HKC 509 which held that the rule in Ladd v Marshall did not apply where there had not been a trial or hearing on the merits, and that in an appeal against the refusal of an application for extension of time to file a defence, the defendant should be given a chance to explain why there was a delay. We consider that the situation in the present case can be likened to the Po Kwong Marble Factory case. There is an interlocutory appeal, and the rights of the parties have not been finalised decided by the Judge or by Mayo VP. The issue before us is whether the husband should be granted leave out of time to appeal. Moreover, it is common ground that the health of the husband is a matter that is to be regarded under s 7 of the Matrimonial Proceedings and Property Ordinance, Cap 192 relating to the consideration for the court to make orders on financial provisions, transfer of property and sale of property under respectively ss 4, 6 and 6A of that Ordinance. If the evidence of the husband's health is not allowed to be admitted now, they are bound to be admitted for future proceedings in the matrimonial suit. This would lead to a dichotomy, which is hardly satisfactory. It also highlights the fact that this is an interlocutory appeal where the parties' rights and obligations arising out of the marriage have not been finally determined.

13. Ms Irving also challenges the veracity of the medical evidence. She stresses that the evidence, especially those medical reports that were dated before the hearing on 25/2 and 26/2/00 before the Judge, was obviously available but was not presented to the Judge. She submits that the husband's ill health described in those reports is therefore unbelievable. However, there is another side of the coin, the fact that the medical evidence was not made available previously highlights either the difficulty in retrieving those reports as old as in 1994, 1995 and 1998 or that time was needed to search for or obtain a copy of those old medical reports. The two medical reports in October 2000 were obtained by the husband from a doctor after an offer was made by his solicitors to the wife's solicitors by letter of 2 August 2000 that the husband should be examined by a medical practitioner mutually appointed by both parties but the offer was rejected. This must to some extent take away the strength of the point made by Ms Irving. In all the circumstances, we think it is a proper case to admit the evidence for our consideration.

14. The major health problems and diseases suffered by the husband in the past 12 years are succinctly set out in the report dated 25/10/00 made by Dr Sanjiv Sharma, as follows:

(a) He underwent coronary artery by-pass surgery for his coronary artery disease on 19/10/87 in London.

(b) Hypertension.

(c) Brain stem ischaemia, for which he was admitted to hospital on 19/7/94. He was kept there for 12 days and was discharged with oral medication of warferin TICLOPIDINE 250 gms which continued for more than a year.

(d) Persistent problems of Vertibro-Basilar insufficiency and vertigo.

(e) Uncontrolled hypertension and mental stress.

(f) In June 1998, he consulted the doctor for an acute attack of mental stress and palpitation, due to alleged problems at home where he was allegedly under severe mental stress.

(g) On 3/11/99, the doctor rushed to see him at home for a severe fall in the bathroom. The injuries from the fall, being soft tissue injuries and sub-coetaneous bleeding, kept him invalid for more than 2 months.

(h) In 2000, he kept falling sick mainly with difficulty with walking due to old injuries from the fall, vertigo, chest pains and dyspouea on exertion, for which he was asked to consult a cardiologist.

(i) The doctor denied permission sought by the husband to travel abroad, because he was totally unfit to travel, and if he did there was a serious chance that he would suffer either a stroke or a heart attack.

The length of delay

15. There is no provision in the Matrimonial Causes Rules made under the Matrimonial Causes Ordinance, Cap 179 dealing with the procedure regarding an appeal in the situation obtained in this case. Resort is therefore made to the District Court Ordinance, Cap 336, section 63 of which, before it was amended by 28 of 2000 (with effect from 1 September 2000), provided as follows:

(1) If any party to any proceedings in the Court is dissatisfied with a determination or direction of a judge in point of law or upon the admission or rejection of any evidence or on any question of fact, the party aggrieved by the judgment, direction, decision or order may, within 28 days thereafter, apply to a judge for leave to appeal, or, if such judge refuses leave, within a further 14 days from the date of such refusal to the Court of Appeal.

(2) ...

(3) ...

(4) On any such application, the judge or the Court of Appeal, as the case may be, may in his or its discretion grant leave to appeal on such terms as to costs, payment of money into court, giving security for the prosecution of the appeal or otherwise as he or it may think fit.

(5) A judge or the Court of Appeal may, at any time, and notwithstanding that the time for an application for leave to appeal may have already expired, extend the time for applying for leave to appeal.

16. The period of delay to seek leave to appeal the order of 7/4/00 was therefore from 5/5/00 (the 28th day after 7/4/00) to 26/6/00, the date when the husband's summons to seek leave from the Judge was filed. However, the husband's solicitors first wrote on 19/6/00 to the solicitors for the wife to seek consent to an extension of time for applying for leave to appeal. The wife's solicitors refused on 26/6/00. While waiting for that reply, the husband's solicitors took out the summons of 26/6/00 to apply for the leave from the Judge. We are of the view that it was proper for the husband's solicitors to first write to seek consent before taking out the summons, and therefore it is just to consider that the delay was only for the period from 5/5/00 to 19/6/00, about 11/2 month.

The reasons for delay

17. The explanations for the delay in bringing appeal proceedings are summarised in the 2nd Affirmation of Manek Bharati Savjibhai, of Messrs B Manek & Co ("Manek & Co"), solicitors now acting for the husband. The husband lived in India and came to know of the 7/4/00 ruling of the Judge through his former solicitors around the middle of April 2000. He was suffering from ill health and was unable to travel to Hong Kong. In or about May 2000, the husband's adult son from a previous marriage came to Hong Kong to seek legal advice on the merits of an appeal. However, as he had not lived in Hong Kong for many years, it took him sometime to search for a suitable firm of solicitors to act in this matter. It was on about 19/5/00 that the son consulted Manek & Co on the possibility of appealing. Papers were then forwarded to counsel for advice. When detailed instructions were being sought, the son, who did not have personal knowledge of all matters pertaining to this action, had to refer back to the husband and his lawyers in India to obtain details. The obtaining of instructions by the solicitors turned out to be a time consuming matter. Moreover, all draft documents had to be sent to India for approval. Upon receipt of the documents back from India, the same had to be perfected and again sent back for affirming. As said above, the solicitors then wrote on 19/6/00 to the solicitors for the wife to seek consent and the refusal came on 26/6/00. Before knowing the refusal, the husband's solicitors had taken out the summons of 26/6/00 to apply for leave from the Judge.

18. It is clear that as from 19/6/00, there has been no further delay in the husband's attempt to prosecute an appeal. Mayo VP said in his judgment that there was no reasonable explanation for the delay as from the middle of April. We will examine the explanation in the light of all the circumstances.

19. The husband had been represented by a firm of solicitors, Messrs Wong Shum & Co, who accepted the service of the HK petition on his behalf. Thereafter apart from being served with the wife's summonses, those solicitors took out the summons of 22/2/00 on behalf of the husband, seeking to stay the HK petition. Mr Wong of that firm also represented the husband to make submissions to the Judge at the hearing on 25/2 and 26/2/00. The firm also appeared for the husband at the hearing before the Judge on 25/4/00 when the Judge ordered an affidavit of means to be filed by the husband, subject to a penal notice to be personally served on him. It was only on 25/5/00 that the husband affirmed an affirmation of means pursuant to the 7/4/00 order of the Judge. That affirmation comprising 31 pages was affirmed by the husband in Bombay and was filed by his present solicitors, Messrs B Manek & Co with the Family Court. A further affirmation was made by him on 12/6/00 in Bombay, consisting of 33 pages, though a large part of the contents was repeating what was stated in the 25/5/00 affirmation. It was not until 19/6/00 that Manek & Co sought the consent of the wife's solicitors in respect of the proposed appeal. However, the 25/5/00 affirmation which was filed on 1/6/00 mentioned in its first paragraph that the affirmation was made "to set aside, oppose and or vary the said Order [of 7/4/00] for interim maintenance made against me and to oppose the Final maintenance application filed by the Petitioner against me". It was therefore obvious to both sides' solicitors and everyone concerned with the proceedings in about early June 2000 that the husband was seeking to set aside the 7/4/00 order regarding maintenance pending suit. The first paragraph of the 12/6/00 affirmation stated that "I make this affirmation to adduce evidence in support of my appeal against refusal of the learned deputy judge [the Judge] to stay the proceeding instituted by the Petitioner in Hong Kong and to set aside the order for maintenance pending suit which has not been served on me ...". Indeed, at the hearing before us, Mr Clough for the husband, without objection from Ms Irving, reads out a letter of 19/5/00 sent by the husband's solicitors to the wife's solicitors, stating that the husband intended to appeal. It seems to us that there was no reason in view of the quoted part of the first paragraph of the 25/5/00 affirmation why no attempt was made to seek leave to appeal out of time against the interim maintenance order on that very day or shortly thereafter. The almost irresistible inference is that Manek & Co failed to put his wish into effect expeditiously. The easiest way to prevent time from running against the interest of a client was to put in a summons seeking leave to appeal in the circumstances, but that was not done. Similarly, as the husband's 12/6/00 affirmation mentioned his intention to appeal against the refusal of the Judge to stay the HK petition, there is no reason to believe as at that date that the husband did not wish to launch that appeal. We do not think it reasonable to attach any blame to the husband for the delay as from 25/5/00 (see Gatti v Shoosmith [1939] 3 All E R 916 and Johnson v Johnson [1978] 1 FLR 331).

20. Regarding the delay between 5/5/00 and 25/5/00, a period of 20 days, it seems to us that the husband was suffering from the ill health that he described in his 25/5/00 affirmation as repeated in his 12/6/00 affirmation and Manek's 2nd Affirmation. The son was sent to Hong Kong to handle the proceedings. The son had been living in England and he came to Hong Kong first to understand the defeat of his father in these proceedings and the reasons for the defeat, probably from Messrs Wong Shum & Co and then he approached Manek & Co. The husband's 25/5/00 affirmation (substantially repeated in the 12/6/00 affirmation) states:

"I am now aged 72 years. ... I am not gainfully employed in any capacity due to reasons of old age and ill health. I suffer from various ailments as particularised below in paragraph 3 and require regular medical check-ups, treatment and am no longer able to lead a normal life due to constant dizziness, weakness, etc. caused by my medical condition. I have been advised by my doctors to take a complete bed rest and for these reasons I have been unable to travel to Hong Kong for the purpose of these proceedings in the court below or to adequately instruct my legal representatives in Hong Kong. As such my legal representative WONG TAK SHING, Solicitor was unable to place these facts and evidence before the court below. [added on 12/6/00: I now seek leave of the honourable court to adduce this Affirmation in evidence in support of my appeal against the said Ruling and Order of the learned deputy judge.] Furthermore I am still unable to travel to Hong Kong on advice of my doctors. ..."

21. Referring to his ill health, the husband affirmed that he had a by-pass operation in 1987. Thereafter he had persistent bouts of chest pain culminating in a stroke in 1994. In 1995, he suffered a haemmoragic attack while in Hong Kong and was hospitalised. On 24 November 1999, he sustained injuries from a fall and was advised to rest for a month. At the beginning of January 2000, medical examination revealed that he was suffering from hypertension and due to his pre-existing heart disease and previous stroke, he was advised to take complete and strict bed rest for one month. Even after the month of bed rest he continued to suffer from hypertension and persistent chest pains with episodes of dizziness. He has been advised by his doctors that, hypertension and ischaemic heart disease being the likely cause of strokes, the possibility of occurrence of further paralytic strokes cannot be excluded. He has also been advised by the doctors not to unduly exert himself physically or mentally for such exertion could trigger another stroke. In any event, he has been considerably weakened both physically and mentally as a result of the said illnesses. He has therefore been unable to travel to Hong Kong to defend this action in Hong Kong or to comply with the order to file an affidavit of means. Due to his medical condition and distance, he was unable to adequately communicate with and instruct his lawyers in Hong Kong or to attend court proceedings. In fact the husband presents the above circumstances as his ground for submitting that Hong Kong is forum non conveniens. He continues:

"As a matter of fact, instructions for these proceedings were handled by my son who normally resides in London at great expense and inconvenience to him. It is undesirable and unacceptable that I should have to put other members of family to such trouble to defend myself in legal proceedings."

22. What is stated in the 25/5/00 and 12/6/00 affirmations about the husband's physical condition is, in our view, confirmed by all the medical reports, especially those written in October 2000 that had not been made available to the Judge or Mayo VP. What he says about how instructions were given to Manek & Co, and through his son, is consistent with what Manek has affirmed in his affirmations in support of the application for leave to appeal out of time. Indeed, as early as 19/5/00, when Manek & Co wrote to the wife's solicitors, they mentioned the husband's intention to appeal. The details of the husband's means and his medical conditions and the respective lengths of time that he and the wife stayed respectively in India and Hong Kong are shown in his affirmations of 25/5 and 12/6, which were absent when Messrs Wong Shum & Co were representing him in these proceedings. We accept that there must have been some difficulty in giving advice and receiving instructions at a distance, especially when the husband, a 72 year-old man, has not been enjoying the best of health and should not exert himself unduly so as to avoid a stroke or heart problem. Then there was the problem of Manek & Co not acting swiftly enough to put the husband's intention to appeal into effect so as to minimise the delay after the time for seeking leave from the Judge had already expired on 5/5/00. It had taken them a month after 19/5/00 (when they notified the other side of the intention) to start to seek consent for applying for leave to appeal out of time. They could have well preserved the situation by issuing a summons, which would not be costly or difficult to prepare, to seek leave on 19/5/00 had they been vigilant. Manek & Co did not take steps to achieve the aim to appeal so clearly stated in the 25/5 and the 12/6 affirmations of the husband until their writing to the wife's solicitors on 19/6 to seek consent.

23. The 25/5 affirmation is a lengthy document containing a lot of details regarding the various dates of the husband's medical history with medical reports dating back to 1994. It also refers to his financial position and supporting documentation. All these would have required considerable time to remember, gather and compile, even with diligence. In all the circumstances, we think it will be unreasonable to attach too much blame to the husband for not lodging the appeal from 5/5 to 19/5, because the default was more likely to be due to the distance in communications and his ill health than his playing delaying tactics. We have already come to the view that the default after 19/5 laid more probably with his legal representatives than him personally. Subject to the question of prejudice suffered by the wife caused by the delay, we are not disposed to penalise the husband by depriving him of a chance to appeal for the delay of a fortnight in bringing the appeal.

Prejudice to the wife

24. Ms Irving, for the wife, urges upon us about the prejudice suffered by the wife that cannot be compensated for by costs: the wife cannot proceed with obtaining the dissolution of the marriage that both she and husband wish to see dissolved. The dissolution has been sought by the wife from our Family Court by her petition on the ground of unreasonable behaviour on the part of the husband. The husband has made known that he opposes the petition because he has been relying on the behaviour and adultery of the wife in his Mumbai petition. It is quite unreal to say that the wife cannot proceed with obtaining the dissolution; rather it is that her wish to have the marriage dissolved is delayed because of the husband's attempt to appeal. Had the husband sought leave to appeal within the time limit on 5/5/00 from the Judge, and when he failed sought leave from a single judge of this Court and failed again, the present situation would be the same. The delay for which the husband should personally be responsible is the 14 days mentioned above. Even taking into account the total period of delay as reasonably calculated, from 6/5/00 to 19/6/00, it is a matter of six weeks. We do not think that in view of the explanations given by the husband for the delay, he should suffer the fate of not being allowed to appeal.

25. Another conceivable prejudice caused by the appeal to the wife is that the order providing her with maintenance pending has not been complied with so far. The key reason for that, in our view, is not because of the proposed appeal, but rather because the husband is overseas and he has simply failed to comply with that order. Mr Clough points out that even if that order has been performed, only $4,800 of the ordered amount of $21,000 per month would reach the wife who is legally aided because of the Director of Legal Aid's first charge against the sum, as provided by s 18A(5)(a) of the Legal Aid Ordinance, Cap 91. Even accepting this submission of Mr Clough, the wife has still not been able to receive $4,800 each month after 15/4/00, the date when maintenance pending suit was ordered to commence. Ms Irving also fairly notifies the Court that the wife's application to the Director to waive the first charge had been refused. Notwithstanding, we are of the view that although the wife's financial position is bound to be affected by the first charge of the Director, had the husband complied with the order, her liability towards the Director would have been reduced month after month. Giving indulgence to the husband to appeal out of time without making provision for his payment of the ordered amount is to allow him to benefit from the delay that cannot in any sense be said to be the fault of the wife. We will bear this in mind in the exercise of our discretion.

The parallel proceedings

26. Mr Clough for the husband draws our attention to the proceedings that are afoot both in the Mumbai and our Family Court. The two different courts may grant orders in the matrimonial proceedings before them affecting the parties' status, their property disposition and obligations to make payment and enforcement of orders, etc. Mr Clough submits that this is most disadvantageous to both parties. We see merit in this submission and wonder why on 7/4/00 the Judge dismissed the parties' respective applications in effect to stay the proceedings in one of the courts or the other, while making an order for maintenance pending suit. As the husband was not restrained from proceeding with his Mumbai divorce proceedings, there is likely to be orders made by the court in that jurisdiction and our Family Court that may conflict with each other. That is, to say the least, undesirable. This was one of the reasons addressed to Mayo VP when he said that leave would likely have been granted but for the delay. We are of the view that this feature of the case warrants it to be dealt with by this Court. We see the benefit of having the present matter determined by this Court once and for all. In case we grant leave to the husband, it is advisable for the wife to bring a cross-appeal against the order dismissing her application to restrain the husband from proceeding with his Mumbai cause.

Conclusion-appeal out of time

27. Now that we have seen the most recent medical reports on the husband, we have the advantage that Mayo VP did not when he dismissed the husband's application on 28/7/00. For all the reasons we have stated above, we grant leave to the husband to appeal the order of 7/4/00 out of time, subject to certain conditions. One of the conditions is that he must first pay into the Family Court all the arrears of the maintenance pending suit in compliance with the order, ie, $21,000 per month from 15/4/00 to 14/11/00 in the total sum of $147,000, and thereafter to continue to pay such an amount of $21,000 on the 15th day of each month until the determination of the appeal. This is the power we have under s 63 of the District Court Ordinance when granting leave. We think this is just fair, so that any prejudice caused to the wife by the delay would not affect her livelihood on the basis of the ruling of the Judge which has not yet been reversed. This means that there will be no stay of execution of the order, the reason for which is stated below.

Conclusion-stay of execution

28. We are not disposed to grant a stay of execution of the order for maintenance pending suit. It has never been seriously denied by the husband that the wife is not entitled to any maintenance pending suit. The only issue argued before Judge was the amount. Mr Wong of Messrs Wong Shum & Co submitted on behalf of the husband that the sum should be $10,000 per month. The Judge ordered $21,000 per month. The husband has so far not paid a cent. This is inexcusable, despite his wish to appeal against the order. Looking at his affirmation of means of 25/5 and the part of his affirmation of 12/6 dealing with means, we do not see any sufficient reason for his refusal to pay, pending the determination of the intended appeal. There is little doubt that he is financially able to do so. Moreover, we are not persuaded that his grounds of the intended appeal are so strong that there should be a stay of execution of this interim maintenance order. If he eventually succeeds on the appeal, the sums that he shall have paid pursuant to the order can, and certainly will, be taken into account in future proceedings. Accordingly, the application for stay of execution is refused.

Conclusion-stay of further proceedings in the HK suit

29. On the other hand, if the husband is successful in his appeal to stay the HK suit, any further proceedings under that petition would be rendered futile and a waste of time and money. In the circumstances, we are amenable to the application to stay such further proceedings pending the determination of the appeal, and we so order.

Costs

30. Since the husband is seeking indulgence from the court, that the medical evidence allowed to be adduced before us supporting his inability to travel to Hong Kong was not made available to the Judge or Mayo VP, and that no blame can be attached to the wife for the delay, we consider it just that the husband should bear the costs of this application. We make an order nisi for costs of this application to be borne by the husband in any event under Order 42, rule 5B(6) of the RHC.

Orders

31. We make the following orders:

(1) The husband do have leave to appeal out of time against the order dated 7/4/00 made by Deputy Judge Chainrai subject to the following conditions:

(a) a notice of appeal shall be filed within 7 days from today;

(b) the husband shall pay into the Family Court of the HKSAR all the arrears of the periodic payments pending suit in the sum of $21,000 a month for the period from 15/4/00 to 14/11/00 totalling $147,000 within 7 days from today; and

(c) he shall pay a sum of $21,000 into that Court on or before 15/11/00 and thereafter pay into that Court such a sum per month on or before the 15th day of each month until the determination of the appeal or until further order.

(2) In default of filing a notice of appeal within the time in (1)(a) above, the leave be revoked.

(3) In default of compliance with (1)(b) or (1)(c) above, the appeal, if lodged, do stand dismissed without any application being made by the wife and without further order.

(4) The wife be at liberty to apply for payment out of the sums paid into court by the husband pursuant to (1)(b) or (1)(c) above.

(5) The application for a stay of execution of the said order of 7/4/00 be dismissed.

(6) There be a stay of further proceedings in FCMC 10800 of 1999 pending the determination of the appeal either generally or pursuant to (2) or (3) above, or until further order.

(7) An order nisi that the costs of this application be borne by the husband in any event.

Representation:

Mr Neal Clough and Ms Mahinder M Panesar, instructed by Messrs B Manek & Co, for the respondent husband

Ms Frances M Irving, instructed by Messrs Haldanes, for the petitioner wife