H v. H

HCA000053/1980

Action No. 53 of 1980

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

Coram: Hon. Mantell J. (In Chambers)

Date: 22nd June, 1983.

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JUDGMENT

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1. This application comes before me as a result of a consent order made by Mr. Justice Fuad on 18th May 1981. That consent order came into existence alongside the pronouncement of a decree nisi in favour of the petitioner. The decree nisi was made absolute sometime in June the same year. The order was intended to dispose finally of any dispute there might have been or might be between the parties in relation to matrimonial property and assets. On the face of it, the order appears to be entirely clear in its terms. But difficulties have arisen in giving effect to it and, therefore, the matter comes before me, under the provision for liberty to apply in order that I might express my view as to the meaning of the order and give any necessary consequential directions because it is said in the application and contended by the petitioner in this case that the respondent has, in certain respects, failed to comply with its terms. At one time, I was a little concerned as to the propriety of my dealing with the matter rather than having the matter referred to Mr. Justice Fuad whose order it is, even bearing in mind the difficulty arising from Mr. Justice Fuad's translation to the Court of Appeal. It seems to me that it might have been possible to have the matter brought before Mr. Justice Fuad for him to give such directions as he thought fit in the light of the order being his. But I have been persuaded by counsel in this case that it is proper for me to deal with the matter taking into consideration that this was a consent order and that the learned judge was presented with a draft which he simply was asked to and did approve.

2. It is necessary to look a little more closely at the order, but I do not intend to read it through. The document, of course, is there for anyone who wishes to examine its full terms. Various undertakings were given upon which the order depended. One of them was by the petitioner to vacate the matrimonial home in Deep Water Bay Road; another by the respondent to pay a sum of money forthwith upon the matrimonial home being vacated; a third, that the respondent would make no claim against a certain limited company or the petitioner's interest in that company; another, that the respondent would permit the petitioner to go back into the matrimonial home to take from it such articles of a personal nature which belonged to her or the children; and thereafter, the petitioner undertook collaterally to make no further claim in relation to any articles may have remained in the matrimonial home. The respondent further undertook in relation to certain articles which had been in store in New York to pay all reasonable costs and expenses incurred by the petitioner in shipping those goods from New York to Hong Kong and that is a undertaking which, it will be necessary for me to look at a little more closely because it forms one of the issues before me under this application. There was a further undertaking by the petitioner to withdraw certain allegations which she had made, and the petitioner undertook to make no further claim against the respondent's estate after the implementation of the order. And both parties agreed not to invoke any previously made order for costs in earlier hearings or proceedings. Upon those undertakings, the order by consent was that following Decree. absolute, the respondent would pay to the petitioner by way of lump sum payment the sum of HK$25,000,000 with credit be given to the respondent for the sum earlier mentioned which he was to have paid upon the petitioner vacating the matrimonial home. That sum was to be in full and final settlement of all the petitioner's claims against the respondent for financial ancillary or property relief and further directions were given in the order as to the manner of payment. No issue arises on this application as to the payment of that very substantial sum of money. It has been paid and I dare say upon reflection those who were charged with advising the parties in this matter might have wished that the whole of the agreement between the parties had been expressed in monetary terms. If a single sum, had been agreed, it would have simplified matters considerably and perhaps avoided the parties and their advisers, to say nothing if the court, being troubled with the application which I have been listening to over the past two to three days. But as frequently happens when negotiations of this sort are taking place, the parties were not content, and I am not criticizing anyone for this, to leave matters in that very simple straight-forward way; and further orders were agreed upon and were made. The second such order was that the respondent "do transfer or caused to be transferred to the petitioner free of all charges and encumbrances the furniture furnishings, fittings and chattels at Morgan Brothers aforesaid (set out in. the warehouse inventory annexed hereto). The petitioner or her agent being authorised to inspect the same before shipment of all or any thereof from New York to Hong Kong as aforesaid." (Morgans is a warehouse in New York) and that together with the undertaking to which I referred and will now read in full really does give rise in substance to this application and, what I may say, has been a very acrimonious dispute between the parties.

3. The undertaking was, and I simply indicated its nature earlier, that "the respondent will pay all reasonable costs and expenses incurred by the petitioner in shipping from New York to Hong Kong all or any of the furniture furnishings, fittings and chattels at present in store at Morgan Brothers Manhattan, New York aforesaid referred to in paragraph two of the order." It will be seen now why I read the order first and then the undertaking. There were further parts to the order which I refer to briefly; that the respondent transfer to the petitioner a Mercedes Benz motor car; that an order for maintenance pending suit made previously be forthwith discharged and that upon payment of the sum of HK$25,000,000 and upon completion of the various transfers of property referred to in the order i.e. the furniture or articles in store in New York and the motor car, all claims by the petitioner for financial ancillary or property relief will stand dismissed. There was no order for costs. Liberty to apply was given, under which the present application is made.

4. It is necessary to look at the Notice of Application. It is dated 15th January 1983. In fact, it picks up exactly in its terms, an application which was made but not proceeded with much earlier, I think, I am right in recollecting in September 1981. I hope that I am right to saying that in all respects it is similar in its terms. To that extent, it was thought, certainly, by me, and, I think in the event by Mr. Mills-Owens also, to be inappropriately worded because it is dated before events reached the stage which they now have reached and consequently, it expressed itself in terms which would not seem to be appropriate to the state of affairs as we now know them to be. It was necessary, therefore, for an application to amend to be made and leave was, in fact, given. Mr. Rodway, as he put it himself, "winged" a little, but did not claim that he was prejudiced in any way by lateness of the application because, of course, subject to one matter I have to refer to, the issues appear clearly from the affidavit evidence in the case.

5. What the application comes down to is a request for directions as to the respondent's failure to comply with the Order dated 18th May 1981. The failure to comply is more particular identified in other parts of the application but I think it is only necessary for me to consider the first paragraph of the application. It seems to me to embrace everything that the petitioner is asking for and is sufficient to allow me to make such orders as are asked for if I think it is right so to do. I mention the fact that the Notice of Application was amended because that may or may not be relevant to any question of costs which may arise subsequently. And I mention now the other matters which, perhaps, made the issues less clear than they might have been on the affidavits. At one stage, perhaps provoked by something which had been said in affidavit on the other side, the petitioner made the point that there was still a number of valuable items of her own of which the respondent remained in possession. It was possible to read the affidavit evidence in such a way as to think that she might be claiming those items in the course of making this application. Well, at the very beginning, Mr. Mills-Owens made it plain that that was not the case. But subject to that, as I think I said earlier, the issues between the parties were reasonably plain on the affidavits as they existed at the beginning of this application.

6. Now, having looked at the terms of the order and of the notice, let me come to the events which have given rise to the application. And may I say that in dealing with the evidence, it is not my intention to scrutinize the affidavits. If conclusions of fact which I arrive at are to be criticised, they can, of course, be compared with the affidavit evidence which is there to be seen. So, how does it come about that the petitioner complains in her application that the respondent has not complied with the undertaking, which I have read, and with the terms of the order which I have read and have indicated form the basis of the dispute. Well, it appears that in happier times the parties had a flat in New York. The time came when the flat was disposed of, as I understand it, and I do not think it matters that I should know the details of how that came about. But in 1978, for whatever reason, it became necessary to move the furniture which had been in that flat into a store in New York, the name of which is Morgans. The articles involved were miscellaneous, some furniture, some articles of domestic utility, some soft furnishings and more particularly, a desk which has figured considerably in this hearing. The desk had been purchased in 1977. It now appears from the affidavit evidence and it is not disputed, it was bought as a gift from the petitioner to the respondent and it was, I find, always regarded as the respondent's personal property. I call it a desk, it is more accurate, I think, to call it a writing table. It is an antique writing table, a George III writing table, and it is valuable. US$4,750 were paid for it in 1977 after discount. As I say, that was in happier times. Between 1977 and the date of the order 1981, it appears that the marriage fell apart. I know nothing of the circumstances of that nor is it necessary that I should.

7. In 1979, the respondent arranged for all the goods then in store at Morgans to be removed to another place for storage, also in New York, a warehouse called Hahns. At some stage, I think, also in 1979, but it matters not, I find that because the respondent was concerned for the welfare of his valuable desk, it is being common knowledge that warehouses or furniture stores are not ideal places in which to maintain valuable pieces of furniture in good condition, gave the desk to a Mr. Lessor, who is, I think, a lawyer in New York. It was removed from the store for that purpose and I find on the evidence before me that the petitioner was not told about it at the time nor did she get to learn of it until after the making of the order in May 1981. Various other articles were, from time to time or perhaps all at one time, removed by the respondent or on his instructions, (I do not suppose, for one moment, that he went himself to the warehouse to remove articles of furniture) which he allowed children of the family to use in their fiat, also, I believe, in New York. I find on the evidence before me, all of which is contained in affidavits that the petitioner knew nothing of the removal of those articles at the time nor did she get to learn of the removal of any of them until some stage during the discussions which took place between solicitors when it was made known to the petitioner's solicitors in a letter of 2nd March 1981 that certain articles had been removed. They were not specified in any great detail. Their general nature was indicated and it is, perhaps, as well if I refer to that letter now. What was said following the inquiry by solicitors for the petitioner was this:

"So far as the goods installed in New York are concerned, our client instructs us that everything is still there apart from two lamps, some kitchen ware and some linen, together with one mattress. These items were at the suggestion of the decorator of a flat rented by him for the children, put in that flat. We think in any event that your client has a list of these items."

If it were right that the petitioner had a list of the items at that stage, then, of course, my conclusion of fact is that she know nothing about their removal before the receipt of that letter or before discussions were entered into would be wrong. However that may be, discussions continued. Principally as one might imagine to be the case, I find that they were directed towards the agreement of a cash or money settlement. I think, it will be readily appreciated by everyone that I have had no difficulty in finding that attention was directed to the HK$25,000,000 principally and only incidentially to the other items such as the motor car and the furniture at store. But those items were not neglected and obviously, so it appears to me, the petitioner though that they were important. Hence, the correspondence, part of which I have referred to, relating to the items which have been removed. It will be noted that there was nothing said in the letter about the desk. I find that this matter was raised, as it must have been, between the respondent's solicitors and the respondent himself following inquiries made by the petitioner's solicitors and that the respondent had simply overlooked the fact that the desk had been taken out and given away, probably because being his property he would not have considered that it would be an item of interest to the petitioner. If that proves to be a costly oversight, I think, so far as the financial consequences are concerned, it is one which the respondent will be able to sustain.

8. As 18th May approached, the respondent was anxious to bring matters to a conclusion as it was his intention to leave the jurisdiction, which he did, I think I am right to say, on 14th May 1981. He understood that the agreement which was to be reached on his behalf, so far as financial settlement was concerned, was accurately set out in a letter written by the respondent's solicitors to the solicitors for the petitioner dated 14th May. Of the matters concerning the furniture in New York, this is what was said:

"Such of the furniture now stored in New York as your client may select to be shipped to your client in Hong Kong as soon as possible at our client's expenses."

At that stage, there was no question of the furniture in New York being further identified. But Mr. H. having departed Hong Kong on 14th May, further discussions took place between solicitors for the parties, Mr. Glynn for the petitioner and Mr. Taylor for the respondent. That agreement was, as I find, crucially modified because paragraph E became, instead of as I have just read, the same with this added "Our client acknowledges that all the items on the said schedule shall. henceforth be your client's property". Now, the "said schedule" was an inventory which had been raised at the time the goods had been put into store in 1978. It was an out of date inventory but it was one which was still in the possession of the petitioner. It was not complete for some reason which I find to be insufficiently explained, a bit have been excised from the bottom meaning that certain items were not shown on the inventory which appeared on the original and also a reference to keeping certain items to the front was, somewhat, obscure. Now, I do not think that there is anything sinister in that. In my view, if that inventory is important at all in reading and understanding the order which Mr. Justice Fuad made, it must be looked at, not at in its truncated version but in its original version. Neither solicitor appears to have read through the items in the inventory, otherwise they have noticed that it had been truncated. What was being done, it seems to me, in that agreement and what was intended to be done was to identify the items in which property was to he passed by reference to the original inventory. But, of course, it must not be forgotten that earlier, the respondent through his solicitors made it plain that certain items had been removed, and although no reference is made to that in a letter of 15th May, I take it and, I say, read it as meaning that it was agreed between solicitors that those items referred to in the letter of 2nd March, though, perhaps, insufficiently identified were to be excluded. That agreement or that letter which is really in the form of an offer was accepted by a letter from the petitioner's solicitors dated 16th May. I am not sure but, I think, 16th May may well have been a Saturday because the hearing on the 18th, I believe, was on the Monday and it was that agreement, as I find, contained in the offer of the 15th accepted by the letter of the 16th which was sought to be translated into the consent order made on the 18th.

9. Now, without looking at that agreement and on simply reading the order baldly as it appears, I would have said that the order was intended to mean that the respondent should only transfer such of those articles as were in store at the date of the order i.e. 18th May 1981. I read the words, "furniture furnishings, fittings and chattels at Morgan Brothers aforesaid (set out in the warehouse inventory annexed hereto)"as being words limiting the application of the order to those goods which were both at Morgan Brothers and on the inventory. And that is how I would have found but for the letters which, as I find, embodied the agreement actually reached between solicitors. Now, it so happens that there had been removed from Morgans not only the desk which does appear on the inventory, both in its complete and truncated version, but also certain other items, as I find, which could not be covered by the letter of exclusion of 2nd March 1981. That is what gives rise to the trouble. I read the order taking into account, what I think on high authority has been called, "the matrix of fact", as being an order or agreement on the part of the respondent to transfer all the articles on the inventory save for those which have been expressly excepted by the solicitors' letter dated 2nd March. Nothing turns on the goods being at Hahns rather than Morgans because it is agreed by both covaisel that for Morgan Brother, I should read Hahns. Of course, this difficulty arose, in the first instance, so soon as the petitioner discovered after the making of the order when she sent her agent to look at the goods that the desk as missing and complained. Not surprisingly, perhaps, her complaint about the desk rather irriated the respondent and his attitude with regard to other matters hardened and so it is that leading counsel. have to argue these matters in front of me. For anyone unfamiliar with matrimonial litigation, it might seem strange that people who have been able to come to a settlement involving HK$25,000,000, a not insubstantial sum, and who, in any other circumstances, I believe, behave in an adult reasonable and civilized manner. should now squabble over articles of furniture and household utility, the value of which can hardly equal the interest receivable weekly on the lump sum settlement. It might seem strange to some one uninitiated, as I say, and it might even seem silly. But to any such person who might be tempted to think in that way, let me say, that he or she does not appreciate the strength of sentimental attachment for such articles that develops in the minds of people who are engaged in divorce proceedings or who have recently been divorced and still less do they appreciate the single-mindedless of purpose which some people are able to bring to bear in establishing a point of principle. Every practising lawyer will tell you that there is no more laudable motive for litigation than to establish a point of principle. It is believed, though not by me, that some solicitors and barristers pray nightly that their client's resolve to establish points of principle will be sustained. However, that may be, and it may not he the case that that is what concerns these parties, what this matter now boils down to is what should happen with regard to those articles which have gone missing from store. Strictly applied, I suppose, all that can be achieved under the order are some directions relating to the delivery of those articles. But it has been agreed by counsel that, if I find as I have indicated that I intend to, that without argument being addressed to me on the matter, I should have power and I think, in any event, I have, to accord values to the articles which it is no longer possible to deliver or may be no longer possible to deliver and thus, give effect to the order in that way. I congratulate the parties on reaching that agreement and I would not wish it to be thought that anything I have said is by way of disparagement of them. I also must bear in mind that one of the objects which I understand from counsel on both sides was in their minds is to achieve finality in this matter. I wish it for them both. Having listened to this case for two or three days now, I am not hopeful.

10. If it is not impertinent to. say so since the order on its face has clearly expressed, if follows that having, construed the order as I do, certain directions must follow. It must follow that those articles on the list which have not been expressly excluded must either as to themselves or their value be transferred or given to the petitioner. Difficulties have arisen over identifying the missing articles. I look at one of the schedules attached to one of the several affidavits sworn by the petitioner. It is at page 221 of my bundle. Since it is only approximately half way through, it should give an indication of the time and trouble expended on this matter even before it came to me. I look at that page together with the schedule at page 214 and I indicate my findings now only in relation to the furniture and goods that had been in store. The antique writing table is one such item. In the course of the hearing, I expressed some sympathy with Mr. H. over what, by that time, I thought was likely to be my finding in relation to the writing table and it was, perhaps thought that any sympathy was misplaced. I do not think so. It is certainly true that there was a failure of communication. It is very difficult to attribute the blame for it as between Mr. H. and the solicitors. If anyone is at fault, it is probably Mr. H. himself for failing to mention it and the result is as I have indicated. Therefore, I do feel some sympathy for him because I am quite sure that had he remained in the country and had it been specifically brought to his attention, the desk would not have formed part of the settlement. But we cannot criticize Mr. Taylor. He was dealing purely on the basis of his instruction and he had authority to enter into the agreement which, I find, he did. But that must go to the petitioner. I value it at US$7,000. I do not want there be any ambiguity, I have indicated that with regard to other sums of money, I am going to express my order in terms of Hong Kong dollars and I mentioned the rate of conversion which I think to be appropriate. Of course, in relation to the desk, other considerations apply. What we are talking about is current value and I direct that in order to comply with the order made by fir. Justice Fuad, the respondent must either deliver the desk to the petitioner, or he must give, what I find to be on the evidence before me, its value which is US$7,000 or the equivalent amount of Hong Kong dollars converted at today's rate and I give the respondent the option. I am told that delivery in New York will suffice and I so direct that such will amount to sufficient compliance with the order. I must say as to by my valuation that it is bound, to a certain extent to be a guess, the best estimate I can make on insufficient evidence. There is evidence from the original retailer of the desk which suggested US$18,500. That was a figure he originally gave o the petitioner's agent in New York and, I imagine, he has found it very difficult to depart from that figure when asked again. But I notice that in his affidavit he was not found it possible to say what price he would give for the desk if he were buying it in for resale. Obviously, that would be at a lower price than its retail value. The evidence, however, from two famous auction houses, Christies and Sothebys puts the desk's value at between US$3,000 and US$6,000 variously at the lower and upper end of its value. I do accept that evidence and reject that of the New York retailer. Perhaps being more generous than I should to the petitioner, I put the value, as I say, at US$7,000.

11. I leave the question of the desk and go on to look at the schedule on page 217 which really itemizes the petitioner's claim. The next items, and it is difficult to believe that I am actually saying this in the course of my judgment ,are a pail, a tray, a clock and a gym mat. I do find, after some hesitation, that those items were properly put in store and have been removed. The value put upon them is US$125. There must be some allowance made for fair, wear and tear, once again, perhaps, being over generous to the petitioner. I have decided to deduct in this case as in every other case where I find that articles are missing and ought to be delivered one-third of the amount claimed. Of course, in order to comply with the order, the respondent has the option of supplying the goods or substitutes if he can acquire them more cheaply then the value I have put upon them and provided, of course, that they are the same goods.

12. The third item I deal with can be seen under the third sub-heading "C - Replacement items not yet purchased" relating to some sliver missing from a boxed set or, so it is said. I am not satisfied on the evidence that those missing articles were ever put in store. I cannot imagine, in what possible circumstances, a fork and. a spoon or the like would be removed from a set. and, therefore, I make no order in relation to the silver claimed. There is a cylinder table, whatever that might be, gone missing, so it is said. I find that it was put in store. I find that the respondent is bound to deliver it to comply with the order or give its value which is assessed at US$412. Once again, one-third is to be deducted. I have made it plain that I am leaving the arithmetic to counsel or to their instructing solicitors. I cannot imagine that there will be any difficulty over that I make a similar order in relation to two Regency benches. I am not satisfied that two speakers were missing from store. I am satisfied that a vacuum cleaner was but I am not satisfied in relation to the blankets or the books claimed. In each case, when I say that something was missing, I make the same order as I have made in relation to the other matters.

13. Now, the petitioner has bought certain items which she says were missing. That comes under the heading "B - Replacement items bought in Hong Kong". I am not satisfied that the knives were ever missing. I am satisfied in relation to the three remaining items, the television set, ironing board and ironing sleeve, all of which, the respondent must deliver in order to comply or give two-thirds of the value set out in that schedule. That leaves "A", deliberately left to last, because it is said on behalf of the respondent that those items in "A" are or could very well be the very items referred to in the letter of 2nd March. I find that that to be so. No one ever thought fit to seek further particulars of the items referred to in the letter of 2nd March and, therefore, I cannot be satisfied that those items were not expressly excluded.

14. That deals with the furniture but other matters arise because of the undertaking which was given with regard to paying for the costs of shipping and I have to look therefore, once again, at the terms of the order and indicate what, I think, the undertaking means. I have reminded myself that the respondent undertook to pay all reasonable costs and expenses incurred by the petitioner in shipping from New York to Hong Kong all or any of the furniture furnishings and chattels at present in store at Morgan Brothers, Manhattan, and referred to in paragraph 2 of the order. Paragraph 2 of the order, just to reiterate, speaks of the respondent transferring or causing to be transferred to the petitioner free of all charges and encumbrances the furniture furnishings, fittings and chattels at Morgan Brothers aforesaid (set out in the warehouse inventory), it being agreed, of course, that for organ Brothers, I must read Hahns. Well, I take the view that that must mean all reasonable costs, of and incidental. To the shipping of those goods from New York to Hong Kong. That must include removal from store to ship and from ship to the petitioner's home here in Hong Kong. It does not include anything else in my judgment and, therefore, looking once again at page 211, I am satisfied that item "C" is an expense to be properly borne by the respondent. I am satisfied that item "D" is properly to be borne by the respondent save for one-half of the costs of a joint inspection carried out by solicitors of the parties once the goods arrived in Hong Kong. The appropriate sums, therefore, are to be paid by the respondent to the petitioner. Item "A" related to storage charges for the month of October. The respondent, very readily and early at some day in June, I believe I am right in saying, gave authority for the goods to be removed from Hahns and althought there was some misunderstanding between the petitioner and Hahns or the petitioner's agent and Hahns as to whether there was authority or not and that authority had to be confirmed early in September, I do not find that the respondent is responsible for a delay extending into October and, therefore, he is not responsible for those charges. As to item "B", there is a hotly contested issue. The petitioner contends that that the item relates solely to the charges incidental to the removal of the goods from New York to Hong Kong. The respondent says no, those were incidental to an inspection carried out for the petitioner's own particular purposes by a Mrs. Rosen. Well, I find that a very difficult issue of fact to resolve and I am left in the state of mind where I am not satisfied that the various charges were incurred in relation to the removal of the goods from New York to Hong Kong. Therefore, I make no direction in relation to that. Likewise, I make no direction in relation to Mrs. Barbara Rosen's costs which, as set out on that page I find, were incurred solely in the petitioner's interest and fall outside any undertaking given by the respondent.

Nov I hope I have not failed to cover any of the items which have come to me for consideration. Those are the orders and directions which I make. I ought to say that I would allow 28 days for compliance with the orders and directions. I may say, of course, that is really further time allowed for compliance with the order made by Mr. Justice Fuad.

Representation:

Not recorded but appearing from Clerk's Notes: -

Petitioner should have two-third of her costs.

Application for certificate for 2 counsel by petitioner's counsel refused.

Leave to petitioner to appeal and leave to respondent to appeal on question of costs.

Mr. R. Mills-Owens, Q.C. & Miss C. D'A Remedios (Hampton, Winter & Sylnn) for Petitioner.

Mr. G. Rodway (Johnson, Stokes & Master) for Respondent.