Chan Tsoi Wai Loi v. Chan Kwok Fai

Case No.HCMP 459/1980

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000459/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 459 of 1980

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BETWEEN
	CHAN TSOI WAI LOI	Applicant
	and
	CHAN KWOK FAI	Respondent

Coram: Mr Commissioner Gittins, Q.C. in Chambers

Date of Judgment: 10th June 1980

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DECISION

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1. The Applicant is the wife of the Respondent. She applies under Section 6 of the Married Persons Status Ordinance, Cap. 182 for an injunction restraining the Respondent from selling or otherwise disposing of a flat which is the matrimonial home without her consent or providing her with alternative accommodation.

2. It is common ground that the said flat was purchased in the name of the Respondent in 1976; that since then it has been the matrimonial home of the parties and their two children, that the purchase is financed by a mortgage; that early in 1980 a dispute arose between the parties; that in April 1980 the respondent advertised in a newspaper that the flat was up for urgent sale giving his office and home telephone numbers for inquiries and that persons telephoned the said flat inquiring about its sale.

3. Section 6 of Cap. 182 is the equivalent of Section 17 of the Married Women's Property Act 1882. Sub section (1) of Section 6 provides -

"6(1) In any question between husband and wife as to the title to or possession of property the husband or the wife may apply by summons or otherwise in a summary way to a judge to determine the question."

4. It was held by the House of Lords in National Provincial Bank v. Auisworth, (1965) AC 1175 at 1220 B per Lord Hodson -

"	The matrimonial law did not, however, at any time give the wife any property in the house in which she lived with her husband unless she could rely upon a settlement. His duty is to live with his wife and to support her but she has no proprietary rights in the house by virtue of her status as a wife. She is lawfully there not by reason of any contract or licence but simply because she is the wife. If her husband leaves her the right which she has to be left undisturbed is a personal right and does not attach itself to any specific piece of property which may at a given time be the home in which the spouses have lived together. The husband may return or provide accommodation for the wife elsewhere or the relationship of the spouses may change by the wife losing her right to her husband's consortium and to be maintained by him.
	So long as she has not forfeited her rights the courts have often intervened to protect the wife's right to live in the house which she and her husband have occupied together. Proceedings are available under section 17 of the Married Women's Property Act, 1882, which enables questions between husband and wife to be decided in a summary way. The court has intervened by injunction to restrain a husband from entering into a contract for the sale of the house while his wife and children are living there until the husband provided suitable alternative accommodation: Lee v. Lee³ where the Court of Appeal confirmed an order of a county court judge to this effect."
"	Questions have arisen in considering the extent of the discretion of the court under section 17 of the Act of 1882, but broadly speaking the view is accepted that the court has a discretion to be exercised in the interest of the parties to restrain or postpone the enforcement of legal rights but not to vary agreed or established rights to property in an endeavour to achieve a kind of palm tree justice."

5. For the Respondent it was intended that the present application was misconceived in that it could not be made under S. 6 of Cap. 182. For this proposition reliance was placed on a passage in Pettitt v. Pettitt, (1969) 2 AER 385 at 400I, (1970) A.C. 777 at 807 F where Lord Hodson said -

"The discretionary words "as he shall think fit" appear in both sections and were discussed at length in this House in National Provincial Bank Ltd. v. Hastings Car Mart Ltd. (1965) A.C. 1175. That case was concerned with consideration of what was called "the deserted wife's equity" and is not, therefore, a decision of this House on the extent of the discretion to be exercised under section 17."

6. Reliance was also placed on other passages in the judgments of their lordships in that case and in Gissing v. Gissing (1970) 2 AER 780.

7. In both Pettitt and Gissing cases the court was concerned with claims for proprietary shares in the matrimonial and the ratio decideadi in those cases was that section 17 of the Married Women's Property Act 1882 did not give the court a discretion to vary the existing proprietary rights of the parties. Lord Hodson in Pettitt's case at 807 G said that he adhered to the opinions expressed in the National Provincial Bank case, and at 808 E he said -

"The section 17 discretion is valuable in protecting the matrimonial relationship in appropriate cases by summary procedure. A wife's occupation of the home may need protection until her husband provides her with another. (see Lee v Lee (1952) 2 Q.B. 489 n)"

8. In the present case the applicant makes no claim for any proprietary share or interest in the matrimonial home; her position is that stated by Lord Hodson in the National Provincial Bank case at 1220 B set out above.

9. I hold that the application is properly brought under section 6 of Cap. 182 and that the applicant is entitled to 1, 2 and 4 of the reliefs sought in the Originating Summons.

10. I also hold that the application was properly set down before a judge of the High Court.

11. Costs of the proceedings to be paid by the Respondent and the costs of the legally aided Applicant to be taxed under the Legal Aid Regulations.

	(S.V. Gittins)
	Commissioner of the High Court

Representation:

G. Rodway (P.H. Sin & Co.) for Applicant

Brian van Buuren (S.T. Poon & Co.) for Respondent

3 (1952) 2 Q.B. 489n.; (1952) 1 T.L.R. 968; (1952) 1 All E.R. 1299, C.A.