Chan Cheung Hing v. Chan Tang Lan

HCMC000035/1981

BETWEEN

_______________

Coram: Hon. Power, J.

Date of Hearing: 13, 14 & 17 February 1984

Date of Delivery of Judgment: 12 March 1984

___________

JUDGMENT

___________

1. In this matter the husband, on the 25th May 1981, filed a petition under the Matrimonial Causes Ordinance, Action No. 35 of 1981, in which he sought a decree of dissolution from his wife on the ground that the marriage had broken down irretrievably and that the parties had lived apart for a period of two years. As part of his ancillary relief in that action he asked for orders that:

2. The husband had, on the 20th November 1979, an application some eighteen months before he commenced Action No. 35 of 1981, taken out under the Married Persons Status Ordinance asking for a declaration that the four properties and the proceeds of sale of another property were the joint property of the husband and the wife. This application was consolidated with Divorce Action No.66 of 1979 which action was later withdrawn and replaced by Action No.35 of 1981. On 31st October 1983 the consolidated action came before this Court and a decree nisi was granted. The Court did not proceed to deal with the ancillary relief as the parties had not filed affidavits of means. The Court did, however, on the application of Mr. Eddis, who appeared for the husband, and without objection from Mrs. Bokhary, who appeared for the wife, proceed to deal with the application under the Married Persons Status Ordinance. At the conclusion of the hearing the Court ordered that the property at 14-20 Wah Wing Industrial Building, 8th floor, Workshop Unit C, Kwai Chung, be sold and that the proceeds be divided equally between the parties. As to the other three properties (the three remaining properties), the Court found that, although they had been purchased from the family fund, to which the husband and wife had equal entitlement, he was debarred, on equitable grounds, from giving evidence which would have established that his wife purchased those properties with money from that fund and entitled him to a declaration that she held them in trust for herself and for him.

3. The husband now proceeds with his application for ancillary relief. Mr. Eddis, in this application, has asked the Court to act upon the findings of fact made in the decision under the Married Persons Status Ordinance. Mr. Chan, who now appears for the wife, has not sought to suggest that the husband was not entitled to rely upon those findings. Rather than set out the matters canvassed and decided in that decision I repeat and adopt what was said therein. Mr. Eddis asked for only a nominal order of $1 as a periodical payment but asked, upon the basis of the findings of fact referred to above, for as order that the three remaining properties be sold and that the proceeds be divided.

4. By the time of this hearing, both husband and wife had filed affirmations of means.

5. The wife, who gave her address as 78 Un Chau Street, Flat F, 2nd floor, said in her affirmation, that she was not gainfully employed. She said that she owned the four properties and was joint owner with her son, of a property on the 22nd floor of 404-412 Reclamation Street, Mongkok. She said that she had approximately $22,000 in various bank accounts and had shareholdings in 3 companies.

6. She said that she owed $200,000 to a Miss Fung but gave no details as to the way in which the debt had been incurred or as to how it was to be repaid. She said that she was liable for half of the outstanding mortgage on the Reclamation Street property which stood at $140,000.

7. She said that her monthly expenses amounted to $13,650. $4,000 of this sum was apportioned to "Worship Expenses" and $4,000 was apportioned to medical expenses.

8. The husband in his affirmation said that he had been unemployed since October 1983 and was presently occupying a bed space in his friend's premises for which he was not required to pay rent. He said that since August 1978, when he left the matrimonial home, he had had periods of unemployment and had had to borrow $45,800.

9. He said that he was presently spending about $1,600 on food, clothing and miscellaneous expenses and that he had bank accounts containing several hundred dollars.

10. He said that his wife was residing with her son in the property in Reclamation Street.

11. Mr. Eddis pointed out that since the parties had separated in 1978, the wife had had the benefit of rental payments from the four properties in an amount of more than $200,000 per annum. He pointed out also that in November 1979, as she was now prepared to admit, she had purchased the Reclamation Street premises as joint tenant with her son, Chan Ying Lun. He submitted that, given the finding that this Court had already made that the wife had administered only one fund, the Court must be satisfied that the monies put forward by the wife for the purchase of those premises had come from that fund. He did not seek to cross-examine the wife upon her affidavit of means but he submitted that, given her conduct and the view the Court had taken of her as a witness, it should look with particular scrutiny at the claims she was making therein. He was particularly critical of her claim that she spends $13,650 a month maintaining herself. I am satisfied that this was, on its face, a grossly inflated figure. I refer particularly to the claim for $4,000 for worship expenses and and to the claims for $3,000 expenses for Chinese medicine and $1,000 expenses for doctors. I also have grave reservations as to the claim for 3,000 a month for food.

12. A valuation made on 25th October 1983, Exhibit 2, in the earlier proceedings, set out the values of the properties as follows :-

13. Mr. Eddis submitted that the Court, taking into account that she had had the benefit of the rentals for more than five years and that she had been able to purchase another property at Reclamation Street from the family fund, should order that the three remaining properties be sold and that, at least, three-quarters of the proceeds of sale of the Fat Tseung Street property, which was valued at $1,000,000, be paid to the husband and that half of the proceeds of the other two properties be paid to him.

14. Mr. Chan did not suggest that (under s.6 of the Matrimonial Proceedings and Property Ordinance) the Court had no power to make an order of the type sought by Mr. Eddis. What he sought to argue was that given the husband's earning capacity, needs and age he had not established any entitlement to an order under that section. His basic argument was that the husband had not shown any needs which would justify the Court exercising its power. He went on to submit that, if the Court did see fit to order that the properties be sold, the most that could properly be awarded to the husband was one-third of the proceeds of the sale.

15. He asked the Court to examine the husband's application in the light of s.7 of the Ordinance submitting that the husband had not given any reason why he was unemployed and that he must be taken to have the same earning capacity as he had formerly enjoyed. Mr. Chan submitted that this must be contrasted with the nil earning capacity of the wife. I take into account that the husband has some earning capacity as a knitting worker, but I also bear in mind that he is 56 years of age and that he is presently unemployed. Mr. Chan submitted that the wife's requirements as set out in her affidavits were reasonable. I am afraid I cannot take that view. I am satisfied, as I have already indicated, that her claim for monthly maintenance was grossly exaggerated. Mr. Chan submitted that the wife was entitled to enjoy the standard of living which she had formerly enjoyed as the wife of a factory proprietor. This is so but the other side of the coin is that the husband is also entitled, as far as funds available will allow, to enjoy the same standard of living. Mr. Chan submitted that the wife is 7 years older than the husband and that this must be taken into consideration and I do give weight to this factor. Mr. Chan also asked that the wife's physical disability be taken into account. There is no evidence in her Affirmation of Means as to any physical disability although there is evidence that she spends a considerable amount of money on doctors and medicine. She does not seem to suffer from any mental disability as she has shown considerable acumen in her property dealings over the years. Mr. Chan also asked me to bear in mind, and I do, the wife's uncontested evidence that she is presently indebted to the extent of $200,000. As to the contributions made by the parties to the welfare of the family, it is true that the wife has built up her assets by her management thereof but, as I have already found in the other action, her assets were purchased from the family fund in which the parties were entitled to share equally. Indeed it was really this aspect of the matter upon which Mr. Eddis relied most heavily. His submission was, in essence, that the husband was entitled to his share of the family fund which overall had arrived at a value of about $2,000,000. He submitted that this was more than enough to support both parties in the sort of style they had been accustomed to during their marriage.

16. Mr. Eddis, as I have indicated, submitted that the husband should be held entitled to more than half of the proceeds of sale because the wife had had the benefit of the rental payments and was a half-owner of the Reclamation Street property.

17. The first question to which I must address myself is whether I have any power to make the order for sale and distribution sought by Mr. Eddis. Both counsel appear to have accepted that there was power under s.6 to make the order sought. However I am satisfied that I have no such power. Under the Matrimonial Proceedings and Property Ordinance the Court only has power to order a transfer of property; there is no power to order a sale as there is under the Married Persons Status Ordinance.

18. If I had not already made an order for sale of the property situated at 14-20 Wah Wing Industrial Building, 8th floor, under the Married Persons Status Ordinance, I would have considered the proper order to make would be that the wife transfer the premises at 2 Fat Tseung Street to the husband and that she be left with the other 3 properties. Given the existence of that order, I consider that the proper order is that the wife transfer a half interest in each of the 3 remaining properties to her husband.

19. I have not lost sight, when making this order, of Mr. Eddis' submission that the husband should be entitled to a greater share in the properties than the wife. However, bearing in mind all of the facts, and particularly that the wife is older than the husband and that her only earning capacity lies in her business acumen which she may well not retain with advancing years, I am satisfied that it is the proper order. I do not consider that it would be appropriate to make any order for the payment of even nominal maintenance.

20. The wife is ordered to pay the husband's costs of this application limited to the appearance on 13th and 14th January 1984. There will be no order as to the costs of the appearance on 15th January 1984 when I recalled the parties to indicate that I had no power to make the order being then sought.

Representation:

Mr. F. Eddis (Director of Legal Aid) for Petitioner.

Mr. Chan (Kwan & Kwan) for Respondent.