Hannelore De Lasala v. Ernest Ferdinand Perez De Lasal
Read the full judgment text of HCMC 14/1970 on BabelCite. This High Court CFI judgment.
1. I gave an immediate ruling on the issues in this case as it seemed to be in the interests of the parties that I should not reserve judgment, as I would have liked to do. I gave an outline of my reasons but said that I would deliver full reasons in due course.
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HCMC000014/1970 IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 14 OF 1970 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 14th February 1976. ----------------- RULING ----------------- 1. I gave an immediate ruling on the issues in this case as it seemed to be in the interests of the parties that I should not reserve judgment, as I would have liked to do. I gave an outline of my reasons but said that I would deliver full reasons in due course. 2. By a summons dated 1st August 1975, a wife, to whom a decree absolute of divorce was granted on 30th May 1970, applied to set aside or vary a consent order dismissing her prayers for financial provision for herself and a child of the marriage and also applied for orders for such financial provision. On 19th January 1976 the summons was, by leave, amended to include an application for variation of the financial arrangements contained in three deeds. This ruling is concerned with objections to my jurisdiction to hear any of these applications. 3. For present purposes it is necessary to record only part of the history of what has transpired between the parties. The wife lodged a petition for divorce in which she made allegations which the husband indicated he would contest. In a letter dated 11th December 1969 his solicitors further indicated that, if the custody and financial arrangements which they set out were acceptable to the wife and if she would petition for a divorce solely on the ground of adultery, the husband would not defend that petition or cross petition. The wife was agreeable and on 16th January 1970, by consent, Briggs, J. (as he then was) gave leave to file a further petition and to implement the financial arrangements, which were then contained in a Deed of Arrangement exhibiting two draft Trust Deeds. Pursuant to the leave granted a second petition was presented on 23rd January 1970, the prayers, including those for financial provision, being identical to those in the first petition. On 25th March 1970 the first petition was dismissed by consent and on 23rd May 1970 Briggs, J. granted a decree nisi of divorce on the second petition and adjourned into chambers the matter of the maintenance and welfare of the child. On the same day the judge, by consent, made orders for custody and access, approved the Deed of Arrangement and ordered that upon the payment of the moneys agreed to be paid by the Deed of Arrangement and upon the two Trust Deeds' coming into force the prayers for financial provision should stand dismissed. The moneys were paid, and the Trust Deeds came into force on 30th May 1970, the date on which the decree of divorce was made absolute. 4. Mr. Jackson seeks to avoid the express terms of the agreements in various ways:
5. The substance of the first argument is that an agreement by a wife not to make a further application for maintenance was void and that Briggs, J. had no jurisdiction to make a consent order dismissing the prayers for maintenance as part of such a compromise. As I understand this argument it invited me to treat the order of dismissal as a nullity, but I think it was also suggested that even if the order was not a nullity it was not a bar to a further application. This is a distinction which may have some importance. The basic rule was laid down in Hyman v. Hyman 1929 P. 1 that a separation agreement which provided that the wife would not compel the husband to allow her any alimony or maintenance further than a specified weekly sum did not bar a claim for permanent maintenance after a decree nisi of divorce had been pronounced. Lord Hanworth, M.R. said at p.28:
What is now s.14 of the Matrimonial Proceedings and Property Ordinance was enacted to save any financial terms in a compromise agreement, while confirming that a term which purported to oust the jurisdiction of the court should be void. The equivalent English provision is not mentioned in the report of L v. L 1962 P. 101 and that is one factor upon which Mr. Jackson relies for submitting that that case, which he admits is directly in point, was wrongly decided. In addition he cites Australian cases which point to an apparent weakness in the reasoning of the Court of Appeal in L v. L and invites me to follow them. We are, of course, enjoined to follow the decisions of the Court of Appeal in England in the interpretation of colonial statutes which are identical to Acts of the Imperial Parliament: Trimble v. Hill (1879) 5 App. Cas. 342. Whilst I have said before that we should not follow that court's decisions blindly (CHAN Wai-keung v. Reg. 1965 H.K.L.R. 815), where the interpretation of a statute depends, as it does here, upon the context of that statute in a pattern of relevant legislation and practice which is similar in Hong Kong and in England the decisions of the English courts are of special value, whilst the interpretation of an identical statute in another jurisdiction may be positively misleading. It must be remembered that by virtue of s.6 of the Supreme Court Ordinance the English practice is followed in Hong Kong in the absence of local provision which conflicts with it. However, assuming for the moment that there is substance in the Australian judges' criticism of the reasoning in the English case, I think Mr. French is right when he submits that that does not destroy the basic principle on which the decision was founded but only an alternative ratio decidendi. The first line of reasoning has clearly been established as good law in England. 6. In L v. L the facts were that a prayer for maintenance under the Matrimonial Causes Act 1950 was by consent dismissed. Subsequently the wife sought an order for maintenance and it was held by the Court of Appeal that there was no jurisdiction to entertain a fresh application. The substantial ground was that only one application was contemplated by the Legislature. Wilmer, L.J. said at p.117:
At that time the application had to be made "on making a decree", which was interpreted as meaning at the same time as the granting of the decree or within a reasonable time thereafter: Mills v. Mills 1940 P. 124, 129. It follows that if an application were dismissed that put an end to any right to claim maintenance, whilst if an order for maintenance was made it could always be varied. That led to the practice in England of making orders for a nominal sum instead of orders for dismissal, so that the right to claim should be preserved. In the State of Victoria the legislation allowed more than one application to be made and a dismissal was therefore not final. Subsequently the words "or at any time therefore" were added to the English provision, but it was held that that did not permit a second application but merely extended the time within which a single application could be made. That was so even where a first order was made under the equivalent of our s.4(1)(c) for the payment of a lump sum despite the fact that that paragraph expressly referred to "a lump sum or sums": Coleman v. Coleman1973 Fam. 10. Barnard v. Barnard (1961) 105 Sol. J. 441 was also relied upon by Mr. Jackson, but I do not think it assists the wife here. It was held that, although, since the addition of the words "or at any time thereafter", it is no longer necessary to make an order in a nominal sum to preserve a wife's right to apply for maintenance, it was not wrong to make such an order and where one was made it would not be set aside. In my view it does not follow that where an application has actually been dismissed a further application may be made. The alternative to making an order in a nominal sum is to indicate "No order". That is what Karminski, J. would have preferred to do in R v. R (No. 2) (1967) 111 Sol. J. 926. In that case the wife was herself a successful and highly paid member of the threatrical profession and the proposed consent order made no provision for the wife's support. In the event the judge made the consent order sought, by which a claim for maintenance was dismissed, but added "that there was nothing in the wife's conduct which should preclude her from applying for maintenance hereafter and no evidence before the court that the husband had provided for her support in some other way". It does not appear from the brief report what effect he thought that addition might have: he may, as has been suggested, have doubted whether L v. L had been rightly decided, or he may have thought that it could be distinguished on the ground that there had been no provision for support at all and that the addition therefore made the order of dismissal equivalent to the making of no order. I do not think that I should assume that he thought the case had been wrongly decided: it was a decision binding upon him. Even if that case be distinguishable from L v. L the present case is not. 7. The second argument which found favour with the Court of Appeal in L v. L was that, where a spouse has agreed as part of a compromise that a lump sum will be accepted in full and final satisfaction of any claim to maintenance which has been made or might be made in the future, then, provided that the agreement is sanctioned by the court, it is enforceable and the court has no jurisdiction to entertain a claim: the effect of the court's sanction is to get out of the way the rule in Hyman v. Hyman (supra). In L v. L the judges adopted a dictum of Denning, L.J. in Bennett v. Bennett 1952 1 K.B. 249, 262:
and the observation of Jenkins, L.J. in Russell v. Russell 1956 P. 283, 295:
It is this view, that although the parties cannot by themselves oust the jurisdiction of the court the court can, in effect, enable them to achieve that object by sanctioning the agreement, which is questioned by the majority in Kitchin v. Kitchin 1952 V.L.R. 143. In that case the court was asked to make an order by consent dismissing a wife's claim to "alimony" upon the payment to her of $1,500 and the proposed order not only recited that that sum would be accepted in full satisfaction of all claims to alimony but also recited (i) an agreement by the wife to make no further claim or demand for alimony, with an undertaking to that effect, and (ii) an undertaking by the husband not to apply for a reduction of the agreed sum. There were alternative applications for an order for permanent maintenance and such further orders as to the court might seem fit. It was decided that there was no objection to the making of an order which recited payment of an agreement to pay a lump sum and the acceptance of that sum in full satisfaction of all maintenance present or future and which then dismissed the claim, but that it was wrong to accept an undertaking from a wife that she would make no further application for maintenance or for any increase of maintenance. It was entirely logical that, if, as the judges held, the relevant statute permitted a succession of claims, the dismissal of one should not bar the others, but it was in the light of that that the court said that the superimposition of the sanction of the court on what was a void agreement (Hyman v. Hyman) did not get rid of the illegality. Although at first sight I was attracted by the argument that this was applicable here and, in effect, that nought plus nought was still nought, I now think that the matter is not as simple as that. What was agreed in Hyman v. Hyman was that the wife would not go to the court. What was agreed in the present case was that the parties would go to the court - and they did go and they obtained an order of dismissal. If, as in the State of Victoria, there could be repeated applications for maintenance then any agreement providing that a party should at any time be prevented from applying to the court would be void, but in Hong Kong an agreement that once a claim had been dismissed no further application would be made would not be void but merely unnecessary: it would be the dismissal and not the agreement which restricted the right to make a further application. However, Wilmer, L.J. said in L v. L that even if he were wrong about the power to make successive orders the sanctioned agreement itself would none the less be binding. When Jenkins, L.J. said in Russell v. Russell that Hyman v. Hyman was satisfied by the approval of court he did so not only in the context of an undertaking by the husband not to apply to reduce an order made by justices in favour of a wife but also in the context of legislation which allowed of only one application in the High Court, and, with respect to Wilmer, L.J., it seems to me that Hyman v. Hyman could only be satisfied by the approval of the court in the latter context. I do not see how the court in, say, 1970, could, by dismissing a claim then before the court, in effect dismiss a future claim which had not yet been made. I agree with O'Bryan, J. (1952 V.L.R. 149) that:
I would go further and say that in my view the fact of the previous compromise would be a very strong factor indeed, but it would not be conclusive. I appreciate the desirability in general of permitting parties to divorce proceedings to settle their differences on terms, provided always that the court is able to satisfy itself that any compromise is a proper one, but I think the Australian judges were on strong ground when they held that, the Legislature having provided for the possibility of new circumstances which would justify further applications, it was not open to the courts to refuse to hear a further application or to the parties to agree not to make such an application. Whether the argument of convenience is sufficient answer I will consider when I come to deal with the claim under s.5 in respect of the child. 8. The next submission with which I shall deal is that the consent order was a nullity because Briggs, J. did not have before him the fundamental information which was necessary before he could be satisfied that it was proper to dismiss the prayers. In my view it is neither necessary nor appropriate for me to inquire whether the order should have been made: I am satisfied that there was jurisdiction to make the order and any attack upon it - and, indeed, upon the consent order of 16th January 1970 - should have been either by way of appeal or, possibly, of a separate proceeding. Mr. French concedes that the information laid before the judge might have been more full, but that is nihil ad rem. 9. Next I will deal with the third of Mr. Jackson's main contentions as set out at the beginning of this judgment, namely that there is jurisdiction to make an order under s.6 of the Matrimonial Proceedings and Property Ordinance even if there is no jurisdiction to make any order under s.4. The substance of the argument is that s.6, which did not come into force until 1972, created a new jurisdiction and that as it was not a jurisdiction which existed at the time of the consent order that order could not bar the present claim. Mr. French was content to assume that in this Court, although I was not absolutely bound by a decision of the English Court of Appeal, I would think it proper to follow the decision in Chaterjee v. Chaterjee 1975 The Times, December 3 to the effect that the equivalent of our s.6 was retroactive in the sense that an order could be made under it although the marriage was dissolved at a time when no such order could have been made. However, he invited me to record the fact that he desired to keep the point open for consideration should this case go further. I express no view as to the effect this may have. Mr. French's answer to the main argument is that "the jurisdiction" which the Court exercises is a jurisdiction to order maintenance, or, in the modern terminology, financial provision, and that s.6 merely provides new "machinery" available to the court in the exercise of that general jurisdiction. He relies upon Doherty v. Doherty 1975 2 All E.R. 635. What happened there was that the wife gave notice of four different claims: (i) for a declaration that she had an interest in a named property (a claim which should in the circumstances have been made under the Married Women's Property Act 1882); (ii) for a transfer to her of that property; (iii) for such further order which the court might see fit to make; and (iv) for "maintenance". Nowhere was a lump sum mentioned. The husband having sold the property, the wife wished to claim a lump sum, but as she had by then remarried she was not entitled to make a new application for financial provision in her favour or for a property adjustment order: s.28(3) of the Matrimonial Causes Act 1973. The issues were, therefore, whether the claims before the court were sufficient, without amendment, to enable the court to order payment of a lump sum and, if not, whether the applications could and should be amended. On all these issues the Court of Appeal held in favour of the wife. Mr. French relies particularly upon the words of Ormrod, J. at p.640e:
(The English s.23 is in substance a combination of our ss.4 and 5, while s.24 is substantially the same as our s.6). Buckley, L.J. gave a judgment to the same effect and I cite only a brief extract from p.642g:
In my view these passages strongly support the husband's contention in the present case. Moreover it is significant that if an order had been made under s.4(1)(a) or (b) or under s.5(2)(a) or (b) previously it could not be varied so as to include an order under s.6: see s.11(5). On the other hand, Wachtel v. Wachtel 1973 Fam. 72, which is relied upon by the wife, is not inconsistent with the view that the "jurisdiction" is that to make financial provision. The actual decision in that case is irrelevant for our purposes, but there are dicta to the effect that the equivalent of our legislation was "not in any sense a codifying statute" but was "a reforming statute". With respect I do not think that is the same thing as saying (to use Mr. Jackson's words) "the new legislation is a completely new code: there was not just new machinery": it would be more accurate to say "the new legislation is a completely new code. It includes new machinery". The legislation was designed "to facilitate the granting of ancillary relief", part of which relief has always been the making of financial provisions. Although one now has to approach the making of financial provision in a new way it is still the same "jurisdiction". It could be, and in the absence of a change of circumstances would be, unjust that an order for financial provision which was made under the old law on the basis that there was no power to order the transfer of property should have superimposed such an order upon it. If the order of dismissal in the present case had been made on or after 1st July 1972 it would have barred a new claim under s.6 and in my view the fact that it was made before that does not make the order any the less of a bar. 10. I turn now to the contention that the jurisdiction relating to the child is subject to special considerations. Here I think there are two separate and distinct issues, (a) whether the consent order of 23rd May 1970 was a nullity because the child was not separately represented and (b) whether the rule in L v. L applies equally to a claim under s.5 on behalf of the child as it does to a claim under s.4 on behalf of the wife. 11. I can dispose of the first of these points very shortly. It was contended that even if a judge does have jurisdiction to dismiss a child's claim once and for all he should not, and could not, do so unless the child is separately represented. I am not persuaded that separate representation is necessary and it is, therefore, unnecessary for me to decide whether the absence of separate representation would (had it been required) have gone to the jurisdiction of Briggs, J. to make the order of 23rd May 1970. No doubt there may be cases where the interests of a wife and a child conflict and, if in such a case (i) the judge does not appreciate the existence of the conflict and in consequence does not direct separate representation and (ii) an order is made which is prejudicial to the child, it is possible that the order could be set aside on the ground of mistake, but so long as it subsisted the order would be valid and binding. The requisite power to direct separate representation is given by r.108 of the Matrimonial Causes Rules but no obligation is expressly placed upon the judge. Rule 72, on the other hand, as a general rule requires separate representation upon an application for a variation of settlement order, i.e. an application under s.6(b) of the Matrimonial roceedings and Property Ordinance. Whether a failure to comply with that rule would affect the jurisdiction of the court, as distinct from providing of itself a ground for setting aside an order, is doubtful. 12. The second point is more difficult. Mr. Jackson sought to persuade me that on the face of it Trust Deed A failed to make adequate provision for the child. Indeed, he went so far as to suggest that the judge could not have read that deed (or, presumably, the draft deed) or he would never have made the orders he did. Mr. Jackson complains in particular of Clauses 4(c), 7(11) and 9, but I do not think it is necessary to set these out. The substance of the complaint is that the trustees are empowered, but not bound, to pay from the trust fund for the maintenance of the child, that they are empowered to hold the fund uninvested and that in paying or applying income to or for the use of the child the trustees may pay to either parent. As I indicated at the time of my ruling I have been disturbed by the fact that the trustees offered the wife for the maintenance of the child no more than $250 a month under and above medical expenses and school fees - an offer which in my view was justly described as "derisory" - and by the fact that in a letter dated 20th April 1972 the trustees asserted what is conceded by the husband's advisors to have been a wrong basis for assessing the payments which ought to be made. I shall revert to these matters hereafter but for the purposes of the present argument I am prepared to assume that the provision made was inadequate so that, if jurisdiction existed, the court might see fit to make a different order. 13. The material parts of s.5 of the Matrimonial Proceedings and Property Ordinance are as follows:
Section 10 inter alia limits by reference to the age of a child the orders which may be made in his favour. In particular sub-s.(2) provides that the term for which by virtue of an order under s.5 any payments are to be made shall not normally in the first instance extend beyond the date when the child attains the age of sixteen. Mr. French argued that ss.4 and 5 were so alike that the principles of L v. L must apply equally to both. At first sight they are alike and I confess that the extent of the difference between them was not apparent to me when I gave my ruling. Although Mr. Jackson had pointed out that under s.5 a claim could be made "from time to time", I had in mind that s.4 allowed a claim "on the granting of a decree or at any time thereafter" and that that had been held not to allow a plurality of claims. It was suggested that the word "while" in sub-s.(5) of s.5 presents difficulty in interpretation because of the words "subject to the provisions of s.10" in sub-s.(1). If "while" means, as it usually does, "for as long as" then it introduces a tautology and the first part of sub-s.(5) would have been better expressed: "The court may exercise the power conferred upon it by sub-s.(1)(a) from time to time". I accept that that is so, but I do not think anything turns upon it. The reason for dividing sub-s.(5) into two parts was this difference between the times for making application under para. (a) and (b) of sub-s.(1). A first order under para.(a) may be made at any time but one under para.(b) must be "either forthwith or within a reasonable time after the dismissal" of the proceedings. If sub-s.(1) stood alone it would, on the authorities, have permitted only one order under the sub-section, as does s.4. The object of sub-s.(5) was to override those authorities and to allow a succession of applications. It follows, I think, that the court can now make a number of orders under sub-s.(1)(a) for periodical payments, covering different periods, so long as a child is within the age limits prescribed by s.10. It may make further orders under the section where proceedings for divorce, nullity or judicial separation have been dismissed after the beginning of the trial, provided that the first order has been made forthwith or within a reasonable time after the dismissal. That being the position I now think there is great force in the argument that the dismissal of a claim brought under s.5(1)(a) on or after 1st July 1972 (or, before that date, under the predecessor of that provision) could no more bar a further claim in 1975 than could an order made on or after 1st July 1972 that instalments be paid until 1975. I appreciate that, if dismissal be no bar, then an unsuccessful applicant could repeatedly vex the other spouse with new applications, but the courts have adequate power to protect the respondent in such circumstances. As against all this it would not appear that Wilmer, L.J. in L v. L thought there was in this connection any distinction between a claim on behalf of a wife or a claim on behalf of a child, for he remarked arguendo at 1962 P. 111:
It must be remembered that the section which then governed the maintenance of children was s.26 of the Matrimonial Causes Act 1950 which enacted in sub-s.(1) that
and in sub-s.(3) that
The power of review to which Wilmer, L.J. alluded was presumably the power granted by sub-s.(1) to make provision "from time to time". Did he mean to suggest that the dismissal of any claim under that sub-section was a bar to all future claims or merely that it was a bar to future claims based on the same facts, i.e. unless there had been a change of circumstances? In the context it would seem to be the former and when giving my ruling I certainly so understood it. It may be that there is a more fundamental distinction between an order for dismissal of a claim under s.5(1)(a) and a limited order for periodical payments under the same paragraph than appears on the surface. By making a limited order the court impliedly reserves its power to reconsider the situation when the time limit has expired: an order of dismissal contains no comparable implication. If I understand the situation aright, Sir Jocelyn Simon, P. (as he then was) in M v. M (No. 2) 1967 P. 313, 323 was of opinion that the wife could effectively agree
although at the end of the report he is recorded as saying
I assume that the wife had made claims to maintenance for herself and the children and that the intention was that these were eventually to be dismissed. (In R v. R, to which I have already referred, there is no mention in the report of any claim for the maintenance of the children of the marriage and the claim in respect of the wife herself was under s.16 of the Matrimonial Causes Act 1965, which allowed only one claim). I was referred to Raydon on Divorce (12th Ed.) 790 (111) which still asserts that, "if a covenant [not to apply to the court] is based on a suitable settlement, approved by the court and recited in an order, it is binding" but the authority cited is Bennett v. Bennett and I have already dealt with the matter on the basis of the covenant: I am here concerned directly with the order of dismissal. It seems to me that formerly an order of dismissal was properly held in England not to be objectionable because there was in fact no ouster of the jurisdiction of the court, the jurisdiction being to make only one claim, but there is strong ground for holding that now that the jurisdiction includes power to make a succession of orders a dismissal which purports to bar all future claims does constitute an ouster and to that extent is contrary to the intention of the Legislature and could be held to be void. However, this does not appear to be the view adopted by the English courts, where, as I understand it, the argument of convenience has in practice continued to be given the greater weight: if the party proposing to make financial provision cannot be assured of finality he will be less willing to reach a settlement at all, which is not in the public interest: the court will be very slow to make an order which bars a further claim whatever may subsequently transpire, but when it does that order will be enforced. If the matter were res integra I would have been disposed to take the contrary view because, as I have already indicated, the court could always achieve substantial justice by treating the existence of a compromise as a generally overwhelming factor, although accepting that a case might conceivably arise which would justify a new order. However, as I understand the continuing English practice to be that the court will in a proper case dismiss a claim on behalf of a child where provision has been agreed, I think the Hong Kong courts should follow that practice unless and until the Privy Council directs otherwise or the English practice is altered. It may be that it would be open to a judge to adopt the device used by Karminski in R v. R and to direct that the dismissal should not bar a future claim if exceptional new circumstances should arise. 14. An alternative argument in the event of the consent order's being held to be valid was that it could be set aside on the basis that the wife was induced to consent by a mistake or mistakes. There now seem to me to be two matters to be considered here, although it was not plain to me when I gave my ruling that they were separate and distinct and I confused them: (1) whether there is power to vary a consent order under s.11 of the Matrimonial Proceedings and Property Ordinance and (2) whether there is an inherent jurisdiction to set aside the order. On the second of these issues it will again be necessary to consider separately those parts of the consent order which concern the child and those parts which concern the wife. 15. It is true that the summons did ask for "an order ... varying the consent order", but, although it was argued that I did not have jurisdiction to vary under s.11, I have no note that Mr. Jackson suggested that I had. Whether he did or not, I agree that an order of dismissal is not an order within the terms of sub-s.(2) of s.11, for it was not made "by virtue of" any of the provisions specified. The other contention is founded upon the power of the court to control interlocutory orders and it is necessary to enquire whether the order of dismissal was an interlocutory or a final order. It was decided in Salter Rex & Co. v. Ghosh 1971 3 W.L.R. 31 that the answer depends upon the nature of the application and not upon the finality of the order actually made: it is a matter of practice and practitioners were advised in each case to consult the practice books. The result in the present case must be that the order dismissing the prayers for financial provision was an interlocutory order because Guerrera v. Guerrera 1974 1 W.L.R. 1542 makes it clear that according to the English practice, which is applicable to Hong Kong, appeals against property adjustments or financial arrangements in divorce proceedings are interlocutory appeals. It is therefore necessary to ask whether the power of the court to control interlocutory orders is as wide as is contended on behalf of the wife. 16. Mr. Jackson relied upon Brister v. Brister 1970 1 W.L.R. 664 where a consent order based on calculations containing errors which were apparent was varied on appeal. I noted Mr. French as having said that the consent order in that case provided that it was "until further order" but I think I must have misunderstood him for on reading the whole report I find nothing to indicate that that was so. However, at p.669 Ormrod, J. said:
I do not read that as suggesting that a consent order can be varied as readily as any other order for maintenance: the judge went on to cite a dictum of Lord Jessel, M.R. in Mullins v. Howell (1879) 11 Ch. D. 763, 766:
That dictum was cited in the Hong Kong case of IP Cheng-tong v. LIU Yiu 1972 H.K.L.R. 46 - which binds me in this court - where, upon a summons for judgment under 0.14 of the Rules of the Supreme Court, the defendant had by consent been given leave to defend conditionally upon his paying money into court within a specified period. He defaulted. He then applied for leave to pay the money into court out of time and the plaintiff renewed his application for judgment. The judge in chambers ruled in favour of the defendant. On appeal the Full Court reversed the decision of the judge on the ground that the court does not have a control over interlocutory orders which extends to altering the terms of any compromise agreed between the parties to litigation where it was not proved to have been made under a mistake. It has been argued here that a consent order dismissing a prayer for maintenance is somehow more inviolate than a consent order granting maintenance, but in my view, where what is in question is the inherent jurisdiction of the court to prevent injustice, that cannot be right. In Brister v. Brister, as I have said, the mistake was apparent. Before me there was some discussion of the adequacy of the provision made for the child and it was, I think, suggested that this was indicative of mistake. I have also indicated that in spite of all that Mr. French said about the propriety of the trustee's actions I am disturbed by the inadequacy of the provision actually made for the child. However, even assuming inadequacy of the provision made I do not think that that could by itself be evidence of mistake, though it might make one suspect the possibility of a mistake and I would hesitate, in the light of what has transpired, before saying that there was no prima facie evidence, doubtful as I might be that her application would eventually succeed. Nevertheless, so far as the child is concerned it is conceded that the sum provided was reasonable and should not be varied on the ground of mistake, even though it was at one time suggested that the wife was mistaken about the return which could be obtained on the moneys settled on the child: what is complained of is that the wife thought (and she now says mistakenly thought) the trustees could be compelled to reimburse all the expenses incurred by her on behalf of the child subject to submission of accounts. To that the substance of the reply, as I understand it, is that the trustees have ample powers, without variation of the order, to release funds for all reasonable requirements of the child and that the court has ample power to compel such release. I think there has been a danger here of confusing jurisdiction and a sufficiency of proof, but perhaps the dividing line is not altogether clear cut. I suppose Mr. French would say that as a matter of law the allegation of relevant mistake can be shown to be misconceived and that the wife cannot therefore establish the jurisdiction: the mistake alleged must be of such a kind that if proved by evidence it might arguably justify that variation. I am satisfied that there are ample powers in the trustees and in the court to ensure the proper maintenance of the child and that there is no mistake alleged which could be proved and which could justify varying the order in so far as it affects the child. In the event, therefore, despite my anxiety about the administration of the trust so far (part of which may stem from the wife's own lack of co-operation with the trustees) I think the objection taken is valid. So far as the wife is concerned, in her affidavit she makes a number of complaints against her former advisers, e.g. that she received no advice in writing and that she was not advised about her tax situation. The latter complaint is to some extent contradicted by her own statement that she was advised by someone who was introduced to her as a tax expert. Again, she says that had she known all the facts to which she deposes and had the conseouences and effects been properly explained to her she would not have consented. However, the question is not whether she was properly advised but whether she consented to the order of 23rd May 1970 under a mistake. Although they are not as clearly stated as they might have been, the mistakes alleged seem to be: (1) that in 1970 a house of the kind described in Trust Deed B could be purchased in England or in Germany for approximately £27,500 or its equivalent: (2) that a gross return of something in the region of 13% could be obtained on the capital sums settled on the wife: (3) that the wife's liability to pay tax would be less than appreximately 50% of the total income arrived from the investment and the capital sum of $850,000 and (4) that in November and December 1969 the husband was "in circumstances of acute financial difficulties and embarrassment" and "he incurred certain contingent liabilities regarding a venture in Alaska, which had collapsed". The wife also says she believed she ran the risk of getting nothing if the husband's previous offer of $75,000 for herself and $5,000 for the child, with provision of a furnished house, was not accepted, but that seems to me to be irrelevant. At the same time, however doubtful I may be about the prospect of the wife's eventually succeeding upon her application to set aside the order on the basis of mistake, I think the jurisdiction does exist. I ruled against her because I confused the application to set aside with the application to vary and failed to distinguish between that part of the consent order which dismissed the claim of the child from that part which dismissed the claim of the wife. In the result my reasoning was wholly fallacious and I must confess that as now advised I should have held in favour of the wife on that one point. 17. It was originally in relation to the application to vary the agreements under s.15 of the Matrimonial Proceedings and Property Ordinance that I had the greatest doubts, for that section presents several difficulties of interpretation. In the event I felt constrained to uphold the preliminary objection on technical grounds, but it may be desirable that I give some indication of my views on the other matters argued. 18. I understood it to be common ground that r.100 of the Matrimonial Causes Rules requires that a claim under s.15 shall be made by originating summons and that as the present claim is made by a judge's summons it is defective. Mr. Jackson not unnaturally invites me to have regard to r.3 of the Matrimonial Causes Rules, 0.2 r.1 of the Rules of the Supreme Court and s.9(g) of the Supreme Court Ordinance and to treat this defect as a readily curable irregul rity. I would certainly have done so if this had been the only defect. There were two much more serious matters. First, the application was not in the form prescribed - Form 16. That again could readily be treated as a mere irregularity were all the information which that form requires to be given contained in the papers served on the husband, even if it were not so conveniently set out as it would have been in the form. Mr. Jackson submits that all the information is in the papers, but in fact there is one important omission - the applicant has not stated the variations which she seeks to have made in the deeds but has merely said that she wants the court to make such variation as it shall think fit. At first sight that might appear to be an omission of little consequence, but it is related to another objection - Mr. French submits that the application should have been made to the District Court. As I see it he is right as things new stand, although it might transpire hereafter that the application was properly brought in the Supreme Court. Section 10B(b) of the Matrimonial Causes Ordinance provides:
Then s.10E reads:
However, the powers of the District Court under s.15 of the Matrimonial Proceedings and Property Ordinance are limited by sub-s.(5) of that section:
It has been pointed out that the word "resident" is not there limited, as it is in sub-s.(1), by the words "for the time being". Sub-section (1) says:
I must return to that sub-section in a moment. The purpose of leaving with the District Court jurisdiction to make orders for periodical payments seems to me to be that a spouse shall be able with a minimum of formality to obtain financial support during a period of residence in the Colony. It is unlikely that the Legislature had in mind a person who might come here for a stay of a few days or even weeks. There is now evidence that the wife reswore an affidavit in Hong Kong on 19th January 1976 but none to show how long she had then been in the Colony and how long she intended to remain. However, she now deposes to what is in part a matter of fact and in part a matter of law, namely that she is "for the time being resident in Hong Kong and now residing in the Hilton Hotel". Certainly the wife cannot be heard to say in the face of that that she is not resident to an extent which would give the District Court jurisdiction. When it comes to the other limitation on the powers of the District Court to entertain applications under s.15 we are in this difficulty, that unless an applicant states what variations are sought, as Form 16 requires, the court cannot tell whether the application is or is not one which the District Court can entertain. Of course this is another difficulty which could be cured but I have come to the conclusion that it would be more convenient, if this remedy is available at all, that there should be a new claim in proper form. 19. Yet another technical objection has been taken: Mr. French has suggested that even the words "resident for the time being" in sub-s.(1) import something more than actual presence in the Colony in residential accommodation. Again I have had second thoughts since giving my ruling and have been more impressed by the fact that the limitation 'for the time being' applies to "domiciled" as well as to "resident". There is inevitably some degree of permanence involved in domicile and when residence and domicile are being considered as alternative qualifications it is not unreasonable to regard the same element of permanence as involved in both. I said when I gave my ruling that clearly a passenger in transit was not within sub-s.(1) but (and this was with some hesitation) that the period of presence might be something less than was required by sub-s.(5). I based that view mainly upon the purely verbal distinction between the sub-sections and I preferred to give the benefit of any doubt I had to the wife and the validity of her process. I now incline to think that that distinction is of less importance. Although the wife was not alleged to have been resident in the Colony on 1st August 1975, when this summons was taken out, she was alleged to be so resident on 21st January 1976 when the summons was amended and the application under s.15 was added. Yet we still do not know the length of her intended stay and the objection to the jurisdiction should probably have been upheld on that ground also. 20. As to the more fundamental objections, the first raises the questions whether there is a "maintenance agreement" within the meaning of s.15 and, if so, whether it is subsisting. Maintenance agreement is defined for the purposes of s.15 by s.14(2) which reads:
Mr. French makes two points here: (i) that there was never an agreement "between the parties to a marriage" and (ii) that the section is concerned with "extra-judicial" agreements and not those which have been approved by the court. First, however, one must enquire what is the "agreement in writing"? There have been three agreements in writing - the Deed of Arrangement, Trust Deed A and Trust Deed B. The summons treats them as a composite agreement. Originally I thought that it might be said that the two Trust Deeds were a composite agreement but I accepted Mr. French's argument that the Deed of Arrangement was no longer subsisting and therefore could no longer be part of such a composite agreement. It is true that parts of the Deed of Arrangement were spent once the Trust Deeds were executed but it is that agreement which contains the covenant by the wife to make no further claims, and that is still subsisting if it be right to say that it was enforceable. Be that as it may, the Trust Deeds were both the product of "financial arrangements" between the husband and the wife and were related through the Deed of Arrangement. Accordingly I think it matters not that the wife was not a party to Trust Deed A. Mr. French, however, relies on the fact that the Hong Kong & Shanghai Bank Hong Kong (Trustee) Ltd. are party to both Trust Deeds and he says that prevents there being an agreement "between the parties to the marriage". In Young v. Young (1973) 117 Sol. J. 204 there was a deed of separation to which the husband's brother was made party. The reason for that was that the deed gave the wife the use of a house which was the joint property of the husband and the brother. The wife covenanted with both of them to keep the house in repair whilst the husband agreed to make periodical payments for the wife's maintenance. The husband sought to vary that part of the agreement relating to the periodical payments but it was held that, as the agreement was not solely between the parties to the marriage it did not come within the contemplation of the equivalent English statute. Mr. Jackson reasonably contends that that case could be distinguished on the ground that there the brother was the beneficial owner of a share in the house, whereas here "the bank trustee" has no beneficial interest. What then was the ratio decidendi? So far as appears from the short report it was that the brother could enforce the covenant to repair against the wife: the deed was indivisible and therefore he might be affected by any variation. Hollings, J. said that the Matrimonial Proceedings and Property Act 1970 did not contemplate agreements "between husband, wife and a third party". The bank trustee is a third party in the present case - and, indeed, the second party to Trust Deed A. No doubt it could not be so seriously prejudiced by a variation as could the brother in Young v. Young, but it would have forced upon it a term to which it had not agreed and (remote a possibility as this may be) to which it might not have a reed. However, that is, I think, enough to take our case outside the ambit of s.15. 21. The second argument also has great attraction and it would not have surprised me if s.15 had been expressly restricted to extra-judicial agreements. However, the definition of "maintenance agreement" seems to me sufficiently wide to include an agreement which has been approved by the court and I would hold accordingly. 22. Whether the two Trust Deeds are properly to be regarded as "an agreement" or whether they ought to be treated as entirely separate and distinct, they are clearly "subsisting". 23. Finally Mr. French submitted that a claim under s.15 would in any event be barred by the alternative ratio decidendi in L v. L the wife having agreed by the Deed of Arrangement that she would "make no further financial claim or demand against the Husband either on her own account or on behalf of the Child". For the reasons I have given I would have been disposed to overrule that objection. 14th February 1976. Representation: |