Yeung Wong Yuen Wah v. Yeung Ying Wing
Read the full judgment text of FCMC 477/1972 on BabelCite. This Family Court judgment before Mr. Registrar Barnett.
Civil law – maintenance order – variation – Matrimonial Proceedings and Property Ordinance – one-third guideline – changed needs – District Court – Petitioner entitled to apply for variation if needs changed – Maintenance increased to $180,000 p.a. – No costs order for unrepresented Petitioner
Legal issues: Variation of maintenance order · Quantum of maintenance
Outcome: Application granted; maintenance order varied.
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FCMC000477/1972 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 477 OF 1972 -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers. Date of Judgment: 31st December 1977 Petitioner in person. Patrick Woo (P.C. Woo & Co.) for Respondent. ----------------- DECISION ----------------- 1. The Petitioner applies to vary the terms of a maintenance order (which I shall call the Order) made by Mr. Registrar Silke dated 20th September 1974. 2. It is important to note that the Order was made after there had been several adjournments for the Respondent to file detailed evidence of his financial position by way of affirmations; that there was full argument, and that the Petitioner was then represented by leading counsel. The terms of the order were:-
3. As I understand her, the Petitioner advances 2 grounds for variation of the Order. First, she relies on para. (f) of the Order, the liberty to apply provision, and the wording of paras. (a) and (b). The Petitioner says that the Order only allowed for the then existing needs of herself and the children, that these needs have changed and that consequently she may apply for variation. As to this the Respondent relies heavily on the following sentence in the Order: The Petitioner says that this was in relation to the type of payment rather than the amount. With this I agree. 4. Then Mr. Woo places reliance on S.7 of the Matrimonial Proceedings and Property Ordinance wherein a duty is placed on the court to have regard (inter alia) to the financial resources and needs the parties are likely to have in the foreseeable future. He says Mr. Registrar Silke must be deemed to have considered these matters and, further, that it is now but 1977 which must be surely the foreseeable future. To accept the Petitioner's contention would be to allow her more bites at the cherry than is normally the case with maintenance orders. Nonetheless, to agree with Mr. Woo would be to fly in the face of the unusual but plain words of the Order, particularly as the amounts awarded were exactly those stated by the Petitioner to be required. I am of the opinion that, upon the terms of paras. (a) and (b) of the Order, the Petitioner is entitled to apply for variation of the Order if her and the children's needs have changed, notwithstanding that such changes could have been foreseen and allowed for. Para. (f) of the Order is, of course, irrelevant. 5. Secondly, the Petitioner generally argues that there has been a considerable change in the circumstances of all parties, that while she and the children are worse off, the Respondent is disposed of assets now revealed to be worth substantially more than was stated in the Order. 6. I have to deal with Mr. Woo's submissions on this ground because much of what he said goes to quantum. Besides relying again on S.7 of the Matrimonial Proceedings and Property Ordinance, Mr. Woo goes on to say that in effect the Petitioner is seeking a reassessment of maintenance rather than variation and that the authorities make it plain that, unless the Order can be impugned in some way, then it must be taken as the starting point upon which to base a variation. Since the Petitioner was represented upon the making of the Order, since there was no appeal against the Order and since there is still nothing to show that the Respondent made less than a full and frank disclosure of his assets, then the Order cannot be attacked. In support, Mr. Woo cited Foster v. Foster [1964] 3 All E.R. p.541 and Wilkins v. Wilkins [1969] 2 All E.R. p.463. 7. Dealing with the increase in the Respondent's assets, Mr. Woo suggested that this point raised by the Petitioner is a red herring. He concedes that certain of the Respondent's properties have been sold for considerably more than their estimated value in the Order. I set out the details:
8. It might, I suppose, be argued that in view of this considerable difference in values the Respondent was less than frank in 1974. I would only remark that it would not have been impossible for the Petitioner to have obtained an independent valuation of the properties. 9. Anyway, Mr. Woo says that this is a red herring because the Respondent's accountant has satisfactorily shown that these amounts were received, that they have been reinvested in shares and that from his shareholdings including the shares which the Respondent holds as director of a private company, the Respondent will receive a projected annual income of $260,000. Thus, the total annual amount of the Order, $138,000, can now be looked at in its true context, and be seen to be over half of the Respondent's income. When the Order was made, it was based on the Petitioner's requirements rather than the Respondent's means as it was clearly beyond the Respondent's ability to pay. 10. Upon the authorities, Mr. Woo reminds me that the one-third rule is still the proper guideline. 11. The Petitioner is living rent free in a flat provided by the Respondent in Robinson Road, the rent for which could not be less than $3,500 per month. 12. Finally, Mr. Woo points out that the Respondent is now living with another woman by whom he has a child and that his moral obligations to them have to be taken into consideration. 13. For her part, the Petitioner has produced detailed calculations, supported by a wealth of documentation, of her own and the children's current requirements. I set them out:
14. I do not propose to examine these figures in detail. Suffice it to say that some are for non-recurrent items which must be discounted at once, others are for items to which no countenance was given in the Order and to which none can be given now. For example, the Petitioner considers that both she, Tessa and Andrew should be entitled to annual vacations abroad including all expenses. It is only those expenses and requirements allowed for in the Order and which have now increased that may form the basis of any variation. Nonetheless, it is plain that expenses have increased particularly those relating to the children's schooling. 15. In all the circumstances, I consider the Order should be varied. At present, the Petitioner receives $66,000 p.a. which is only a fraction short of one quarter of the Respondent's projected income. I think I can disregard the flat where the Petitioner is living as it is an asset over and above those which produce the Respondent's income. 16. I am of the opinion that, bearing in mind the one-third guideline, it would be proper to increase the monthly payments to the Petitioner to $7,000. 17. As to the children, I think separate orders are now necessary. I consider that the overall monthly payment should be increased to $8,000, divided as follows:-
18. Total payments will now be $180,000 p.a. leaving the Respondent $80,000 p.a. I am not unmindful that he already pleads difficulty, but that has not prevented him indulging his taste for exotic and expensive cars. Further, it is accepted that at the beginning of the marriage the parties lived rather better than in the years prior to the dissolution, thanks to the Respondent's mother who controlled the family purse strings. No doubt the same position will, rightly, obtain in respect of the Respondent's new household. 19. I would only add that the Petitioner needs to be reminded of two things. First, that once a marriage is over, things will never be as they were before financially. Secondly, as Mr. Woo rightly stressed, the Petitioner knows exactly how much she has to live on and must budget accordingly by trimming expenses. 20. I do not vary any other terms of the Order. Upon reflection, I still consider it appropriate that all payments are made to the Petitioner. I did remark during the hearing that perhaps Timothy should be made the direct responsibility of the Respondent but I now think it better to preserve the status quo. 21. As the Petitioner was not represented, I make no order as to costs unless the Petitioner seeks any particular out-of-pocket expenses, in which case she has liberty to apply. 22. Liberty to apply to both parties in respect of any matters requiring clarification or for the working out of this Order, but not otherwise. 23. The Petitioner may collect all her documents from the Registry. 24. Dated this 31st day of December 1977
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