Margareta Kristina Agell v. Lars Christer Agell and Another

HCMC000004A/1977

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Coram: Zimmern, J.

Date of Judgment: 5th March, 1980.

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DECISION

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1. On the 16th September 1977 the 1st Respondent was ordered to pay the Petitioner maintenance in the sums of $3,000 per month for herself and $1,750 each for two of the children of the marriage. These sums were assessed in the circumstances of the two parties then prevailing.

2. On the 26th January 1979 the Petitioner issued and served on the 1st Respondent a judgment summons to enforce arrears due in the sum of $84,500 under the order of 16th September, 1977.

3. On the 17th April, 1979 the 1st Respondent applied for a variation of the order of 16th September, 1977. On 20th April, 1979 the return date both summonses were by consent adjourned for a date to be fixed not before 15th June, 1979.

4. The Judgment Summons was with leave amended to read arrears in the sum of $79,500 and not $84,500.

5. The Petitioner on the 25th October applied for leave to issue a further Judgment Summons against the 1st Respondent to enforce payment of $40,000 said to be in default of the same order from 27th January 1979 to 23rd October, 1979.

6. Hearing of the three matters commenced before me on the 31st October 1979 when I made an order for leave in respect of the 2nd Judgment Summons. There was also an application by the 1st Respondent for discovery and this was resolved by the parties inter se. Mr. Rodway was for the Petitioner and the 1st Respondent acted in person.

7. The Petitioner's case was supported by two affidavits sworn by herself on 20th October 1979, 1st November 1979 and another sworn by her solicitor on 20th October 1979. She was cross-examined by the 1st Respondent. The 1st Respondent's case was supported by three affidavits sworn by himself on 19th April 1979, 24th October 1979, 27th October 1979 and one sworn by the 2nd Respondent, his new wife on 24th October 1979. He was cross-examined by Mr. Rodway.

8. Having read and heard the evidence I think it right and more convenient to deal with the 1st Respondent's application to vary the order of 1977 first. I must assume the order was rightly made. There was no appeal from it. What then were the circumstances of the case and the changes if any in the matters for which the Court had and was required to have regard when making the 1977 order?

9. The Court in 1977 divided up between them their then combined available capital and the Petitioner ended up with US$22,000 cash, furniture valued at $75,000 and $40,000 cash and some jewelry not valued. The 1st Respondent was allowed to retain his shares in a private company Marinuska Ltd. with a nominal value of $350,000 but which assets were then only worth about $220,000. It was as it is now a private company fully controlled by the 1st and 2nd Respondents though since 1977 new shares have been issued to a creditor. There was another $50,000 invested into private company fully owned by the 1st and 2nd Respondents.

10. Since then the Petitioner's available capital has increased. She deposed in her affidavit of 1st November 1979 to having

She has now capital worth approximately $300,000, a substantial increase from her position in 1977.

11. The 1st Respondent's position capital wise is as was in 1977 - his shares in the two private companies.

Income and standard of living

12. In 1977 as a teacher she was earning $5,000 per month of which sum I took into account $4,000. Now her pay packet is just over $8,000 including housing and child allowances. She was giving private tuition at home earning about $3,000 per month but gave up for health reasons.

13. The 1st Respondent's income is not quite that easily assessable. The respondents depended on Marinuska Ltd. for their income. It carried on business in the importation and sale of furniture and their hopes and expectation of success failed to materialise. They then changed the business of the company to that of a restauranteur. That business has more possibilities and is now at break even point or perhaps slightly over. On the evidence I am satisfied that the 1st Respondent is personally without liquid funds and the company is indebted to the hilt. I am also satisfied on the evidence that the two respondents are working and trying hard to make that business a success but for the present at any rate it is still a hand to mouth affair. Any accident to that business may well mean the financial ruin of the 1st Respondent as there are no reserves and that will not help anybody.

14. On the evidence it is clear to me the respondents' living comes entirely from the restaurant business which is operated in very much a family way. They control the cash income, pay creditors perhaps not when each debt falls due but when it is prudent so to do without courting further trouble, charge as much of their own expenses to the restaurant and the balance left over is their debt to the company. This system may perhaps be workable so long as the business can show a profit which as yet has to be proved.

15. There has been allegations made against the 1st Respondent of hidden capital and income. These I do not accept. That there is much bitter animosity between the parties I have no doubt. There are also charges of high living against the respondents. These matters are not surprising living as they do in a place like Hong Kong with no doubt many mutual acquaintances giving rise to a natural situation for gossip.

16. The Petitioner's expenses with her two children come to about $12,000 per month. Her pay as a teacher is about $8,000 and income from capital no less than $3,000. The 1st Respondent's ability to pay is as was. This is an application to vary an order made "until further order". The principle to be applied is still, I think, that laid down by Lord Cozens-Hardy M.R. in Hall v. Hall⁽¹⁾ wherein he said:

"it seems to me that the Court ought to have regard to all the circumstances of the case in the same manner as if those circumstances had existed at the date of the original order."

17. As for the Petitioner's present capital I ought not take a substantial part of it into account if I am able to find that any such part of it was accumulated from savings of periodic payments actually made or from fees earned through work beyond normal hours. I am not satisfied that this was the case. I have set out my views of the Respondent and can only repeat his ability to pay depends on circumstances, such as how much cash is left over after meeting recurrent expenses of the restaurant and to what extent he can put off creditors.

18. I must also see to what extent the 1st Respondent Can minimise his expenses so that he can actually pay the Petitioner. Without going into details there is some evidence of extravagance here and there on his part but I must not forget that the 2nd Respondent has rights in the business and anything the 1st Respondent gets from the company is through their joint efforts. Applying the principle set out above I am satisfied that the original order ought to be varied and is hereby varied to the extent of $1,500 per month for the Petitioner instead of $3,000 the order for payment to the two children to stand.

19. I now turn to the two judgment summonses and I am satisfied that the 1st Respondent's default was through inability. In all the circumstances of this case justice will be done if all the arrears up to and including January 1979 are remitted and a new order made for the payments in terms of the variation order up to and including October 1979 to be suspended for a year from today's date. Any payment made by the 1st Respondent subsequent to 31st October 1979 to be accounted as payments towards sums due subsequent.

20. No order as to costs.

Representation:

Rodway (Denton, Hall & Burgin) for Petitioner

1st Respondent in person

(1) [1915] P105 @ 109