Liu Ming Sung v. Liu Lee Yuk Ching and Another
Read the full judgment text of FCMC 2777/1981 on BabelCite. This Family Court judgment was delivered on 28 July 1982 before H. H. Judge Caird.
Divorce Jurisdiction – Stay of Proceedings – Contempt of Court – Costs – Undertakings – Petitioner failed to comply with Full Bench order to formulate proprietary claim and pay taxed costs – Stay granted except for custody and access applications – Respondent discharged from undertaking due to delay caused by Petitioner – Obiter view on District Court jurisdiction regarding proprietary claims.
Legal issues: Stay of proceedings due to non-compliance with Full Bench order · Stay of proceedings due to non-payment of costs · Discharge of Respondent's undertaking
Outcome: Stay of proceedings granted (except custody/access); Respondent discharged from undertaking
Cited by 1 case
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FCMC002777/1981
Applications in Divorce Jurisdiction for (1) stay of Proceedings (2) discharged of wife's undertakings. Held: Order staying all proceedings excepting custody and access applications should issue on basis:
Conditions requested by Petitioner that stay be imposed only if Petitioner failed to pay instalments refused. Provision made that stay may be lifted.
Obiter view expressed that Victoria District Court does not have jurisdiction to entertain certain types of proprietary claim. Respondent discharged from her undertaking because of delay in bringing litigation to an end due to Petitioner's conduct. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 2777 OF 1981 ________________
__________________ Coram: H. H. Judge Caird in Chambers Date: 26th August, 1983. -------------------- RULING -------------------- THE APPLICATIONS 1. The petition in this cause was filed on the 23rd of December 1981 and I have now before me an application by the Respondent for orders as follows: -
2. There is also before me a summons on the part of the Petitioner for directions and setting down the cause for hearing. 3. When the Petitioner previously made an application he was faced by a similar type of application by the respondent as presented herein which was disposed of by His Honour Judge Cruden last year. HISTORY 4. It is necessary to briefly discuss the of this matter. 5. An ex-parte summons was set before me on the 8th January, 1982, upon which I granted orders. I was clearly in error, as pointed out by the full bench of the High Court. Subsequently the Petitioner proceeded on a course of conduct which included deliberate abuse and harnessment of the Respondent, his wife, and as a result of this irresponsible and malicious behaviour found himself facing contempt proceedings in the High Court. The Decision. of the Full Bench is reported in the 1982 HKLR at P 399. 6. As a result of the contempt proceedings an undertaking was given by Counsel for the husband, to eradicate as far as possible the effect of his conduct, and having regard to this and to the apologies tendered by the husband and upon an undertaking that the necessary steps would be taken, an order for committal did not issue, but the bench held, that the justice of the case
Included in the necessary steps is
FORMULATION OF THE PROPRIETARY CLAIM 7. It is the contention of Mr. Patrick Woo on behalf of the wife that the husband has not in fact formulated this proprietary claim and is therefore in contempt. 8. The position is that some time after the hearing before the Full Bench the husband filed an affidavit in the District Court which according to Miss Kwan, Counsel appearing before me for the Petitioner amounted to a formulation of his claim. 9. Basically, the husband's claims in his petition are presented under Section 4 of the Matrimonial Proceedings and Property Ordinance Cap. 192 and a standard practice is that no extended claims are presented in the petition and it is after the hearing of a petition that the common practice is for a summons to issue in relation to any claims for ancillary relief. 10. The full bench has clearly held that a proprietary type of claim is
Such a claim may well be determined at the same time as any financial claim for ancillary relief in a petition that has been separately formulated and advanced. 11. There has been no separate formulation of claim and advancing this by filing same in the appropriate court. 12. A claim of course may in other contexts be formulated by letter, or by summons motion or appropriate court proceedings. 13. As I read the decision of Hunter J. the formulation of a claim referred to at page 411 is "the proper formulation ...." of such claim. Taken in conjunction with the words used at page 404 "has to be separately formulated and advanced", it is apparent in my view that a filing of an affidavit does not amount to formulating the cause of action as contemplated by and expressly stipulated by the full bench. 14. I accept that an affidavit may possibly give the wife's counsel certain advantages at a later date when it comes to cross-examination, and indeed had the affidavit attached to it an exhibit showing the proposed pleading the wife's advisers may well have been content with this. 15. Mr. Patrick Woo throughout argued strenously that the husband was in contempt of the Full Bench order. I do not believe that it is for me to either determine whether he was in fact in contempt as a matter of law, or whether I ought to take any steps to deal with the alleged failure. It is clearly a matter for the Full Bench. However, I have come to the conclusion that the husband has not complied with the order of the Full Bench, to provide ".. The proper formulation ... in the Victoria District Court of the husband's proprietary claim." 16. It is not germane to my decision and argument has not been addressed to me, but I am concerned whether the District Court has jurisdiction to accept any claim in excess of $20,000. 17. If section 4 of the Matrimonial Proceedings and Property Ordinance is to be relied on then the District Court has jurisdiction. My concern relates to the possibility, that the husband's proprietary claims in excess of $20,000. ($40,000 in the near future) derived from possible resulting trusts or claims dependant upon some other beneficial interest. 18. The granting of a decree of divorce is precedant to claims pursuant to see E4 of Cap. 1925. The Petitioner's advisers may have to consider this and possibly seek directions from the full bench. 19. I turn to another matter, the non-Payment of costs. The wife after some considerable time had her costs taxed in the sum of $438,000. 20. These remain unpaid and these were costs that the wife has incurred, after the Petitioners disreputable actions amounting to contempt of court. It is clear that she was obliged to incur such expenses. LAW RELATING TO STAY AS SOUGHT 21. I turn to questions of law. In all cases it is quite clear that orders staying proceedings until the wife's taxed costs are paid may issue. See Joseph v. Joseph Burnhill (1) followed in Kemp-welch v. Kempwelch & Crymes (2) also Leavis v. Leavis (3). 22. As to a party disobeying an order of the court, it is clear from Hadkinson v. Hadkinson (4) that when a party is in contempt of court then such a party is disbared from being heard by the court. 23. I am aware of the decision of Lord Denning in that case where he reviewed the history of the rule "that the party in contempt will not be heard" and showed how that this was never a rule of the common law, but that it was a rule of canon law, page 295. 24. Lord Denning sets out his views as to the modern rule at page 298,:-
25. Applying this principle I am of opinion that where a party to a cause has disobeyed an order of the court, this is not of itself a bar to his being heard, but if it is disobedience which impedes the course of justice in a cause by making it more difficult for the court to ascertain the truth or to enforce the orders which may make, then it is proper that the hearing of such cause should be postponed until the impediment is removed, or good reasons advanced showing why such impediment should not be removed. 26. Applying this dictum of Lord Denning to the instant case, the failure of the husband to properly formulate his claim and notify the wife's advisers of such proper formulation does impede the course of justice in this cause. This of course can be remedied. GENERAL ISSUES INCLUDING CUSTODY CLAIM 27. There are several issues in the instant case.
28. It did cross my mind during the course of the hearing that it may be desirable to separate the hearing of the petition from money issues. Mr. Woo indicated that this met with his approval, however, Miss Kwan argued to the contrary and contended that the very nature of the Petitioner's allegations meant that issues at the hearing of the petition would arise similar to those which fall to be determined on the money claims, I accept her submission holding in effect that the hearing is an "all or nothing" matter. 29. Questions relating to the children if the Petitioner considers that present arrangements are unsatisfactory could easily be dealt with separately, and the orders that I make I shall not apply to any proceedings relating to custody of the children, which the Petitioner made care to institute. 30. Miss Kwan accepts that there is no answer in law, to her client being potentially subject to an order that a stay be imposed and acknowledges the Court may enter a stay on this ground. She argues however that this case comes within the exceptions where the court in its discretion, may refuse a stay. 31. I bear in mind it was the Petitioner himself who elected to harness and embarrass the Respondent and misuse the injunction which he had obtained from the Court and am not prepared to hold that Petitioner warrants an exercise of the Court's discretion in his favour. 32. A stay must be granted on both heads advanced by Mr. Woo, but not in term as sought. SOME TERMS OF STAY 33. The drafting of the application is somewhat infelicitous in that it does not provide. for approved security for costs which I think must be provided for, in other words, if costs are paid, or suitable security is made available, the stay imposed on this ground should be lifted. 34. Also I was informed during the hearing of the summons, that an application is being prepared by these solicitors who acted for Petitioner in contempt proceedings (the solicitors acting for the Petitioner in the cause most properly not acting but electing to instruct Counsel with a watching brief) to apply for relief by seeking an order from the High Court that payment be effected by instalments. 35. Any order made by this Court should also reflect the possibility of an order being granted in favour of the Petitioner permitting him to effect payment by instalments. CONDITION SOUGHT T BY PETITIONER 36. Miss Kwan argued that I should, if inclined to grant a stay, impose a condition that this be imposed so long as instalments were not paid and stated during argument that her client offered $5,000 per month by way of instalments. However, on the evidence before me I am entirely with Mr. Patrick Woo and hold that there has been insufficient information put before to show that this is all can that be reasonably expected to be paid by the Petitioner. I note the Petitioner, at the time he sought an injunction was prepared to undertake to indemnify Respondent in damages. In the circumstances the suggestion of $5,000 per month is derisory and I reject any suggestion of imposing the condition sought by Miss Kwan. THE UNDERTAKINGS 37. On the day of hearing Mr. Woo applied for leave to amend the application upon his giving certain undertakings which have now bean adhered to. Miss Kwan did not oppose this. The order concerned lifting the injunction, consequent upon certain undertakings was as follows:- "Upon hearing Counsel on both sides and upon both Parties' undertakings referred to herein given through their respective Counsel, IT IS ORDERED THAT;-
38. Since that date the Respondent has been stiffle by having her freedom in dealing with property registered in her name curtailed, also she has been put to expense due to the Petitioner's unwarranted spiteful behaviour, for which expense the full bench ordered she be recompensed in full. As stated earlier she has not received one cent. I take judicial notice that since her undertaking was given there has been a time of recession, a time for decisions and in general terms action could have been necessary to preserve assets. This economic climate may well continue. It is obvious that her giving an undertaking resulting in curtailment of her freedom of action was acceptable, provided that the petition and subsequent ancillary matters proceeded to a hearing with dispatch. The Petitioner by his own action has prevented this most desirable outcome. 39. The Respondent must be discharged from her undertakings, and I shall make the appropriate orders as follows:
40. The Respondent to have her costs of and incidental to this application. To be taxed by the Deputy Registrar, Upper Scale, Certificate for Counsel. 41. In conclusion I note that in respect of the considerable delay in delivery of this judgment, much of this was due to my making a date suitable to Counsel.
1. Vol. 76 LT 1897 p.236 2. 1910 p.233 3. 1921 p.299 4. 1952 p.285 Representation: Miss Susan Kwan instructed by Lu, Lai & Lee for Petition. Mr. P. Wu instructed by Edmond Chow & Co. for Respondent. |
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