Cynthia Anne Hong Yee Lee Shiu v. Kaleung Nmn Shiu
Read the full judgment text of on BabelCite. was delivered on 6 December 1999 before Deputy Judge Woolley.
Matrimonial causes – costs – variation of maintenance order – full and frank disclosure – injunction – High Court – Deputy Judge Woolley – Respondent unilaterally reduced maintenance without court order – Petitioner applied for variation and secured payments – Respondent claimed assets reduced from $120 million to minus $6 million but failed to make full and frank disclosure – Investigation showed assets were at least $7 million – Whether costs follow the event in variation application – Respondent bears costs due to lack of disclosure and misleading affidavit – Whether costs for injunction application – Costs to Petitioner due to breach of order and sale of property – Whether costs for release of funds – No order as to costs as financial position unclear – Maintenance variation backdated to 1 April 1999 – Costs of Respondent's and Petitioner's applications to the Petitioner – Costs of Petitioner's injunction application to the Petitioner
Legal issues: Costs of variation application · Costs of injunction application · Costs of release of funds application
Outcome: Costs ordered to Petitioner for Respondent's variation application and Petitioner's injunction application. No order as to costs for release of funds application. Maintenance variation backdated to 1 April 1999.
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HCMC000003A/1995 HCMC 3/95 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MATRIMONIAL CAUSES NO. 3 OF 1995 (transferred by F.C.M.C. No. 224 of 1995) ______________
______________ Coram : Deputy Judge Woolley in Chambers Date of Hearing : 29 November 1999 Date of Handing Down Reasons for Decision : 6 December 1999 _______________________________ REASONS FOR DECISION _______________________________ 1. On 12 November 1999 I handed down my decision in this matter when I allowed in part the Respondent's application for a variation of an order made by consent on 25 March 1996, in respect of the maintenance to be paid by the Respondent for the two children of his marriage to the Petitioner. At the same time I dismissed the Petitioner's application for secured periodical payments or a lump sum. The parties appeared before me again on 29 November 1999 when I ordered that:
2. I now give my reasons for the orders as to costs. 3. The starting point, I accept, is as with most applications to the Court, namely that the costs follow the event. But this is only a starting point, and there are a number of factors which can lead the Court to make other orders in the exercise of its discretion, and I am satisfied that this is such a case. 4. I start with the history of these proceedings, which is set out in my decision, and bear in mind that it was the Respondent's unilateral reduction of his children's periodical payments, without an order of the Court or consent of the Petitioner, which set this series of applications in motion. He might have made an application to the Court earlier, but chose not to do so until his hand was forced by the Petitioner's legal representatives threatening enforcement proceedings in respect of the original order. I also bear in mind that this was an application to vary the maintenance of his children, and consider that the Petitioner has every right in those circumstances to ensure that the application is made on genuine grounds and that their interests are protected. 5. In an application to vary, particularly where the original order is by consent, there is a heavy burden on the applicant to justify such a variation. In effect he is seeking the Court's indulgence. Miss Chow on his behalf has said that the stance of the Petitioner in opposing any reduction, and alleging non-disclosure of assets by the Respondent, supports his application for costs, as the hearing may have not been necessary had her approach been reasonable. 6. However, while the burden was on the Respondent to justify the reduction, and there was a requirement that he make full and frank disclosure of his means, he clearly did not do that, or not until a very late stage in the proceedings. His letters to the Petitioner were severely lacking in particulars, and his affidavit in support, when the application was made, still did not contain sufficient detail to obtain a complete picture of his situation, and in some areas was actually misleading. Miss Chow says that these errors could have been detected by the Petitioner through earlier letters and affidavits, but I do not consider that it amounts to full and frank disclosure to require the other side to have to sift through old affidavits and letters to find the truth. The Respondent was, after all, putting forward a case that his assets had reduced from some $120 million to minus $6 million in a little over three years. I cannot criticize the position taken by the Petitioner in requiring him to show convincing evidence of this. As it turned out, after lengthy investigations by accountants, and attempts by them to resolve discrepancies right up to the beginning of the hearing, his figures were at least $13 million out, and I found that he had assets of at least $7 million. In my view the justice of the situation requires an order that the Respondent bears the costs. 7. I see no reason to make a different order in respect of the Petitioner's application for secured payments. In the light of the history of this matter, she had good cause to fear that her children's interests were not fully protected, and the only reason that security was not ordered was that it was difficult to identify a part of the Respondent's assets which was suitable for such security and which would not prejudice unfairly his own position. 8. In the circumstances of this case I consider it would be wholly wrong to order the Petitioner to pay even her own costs. 9. As to the application by the Petitioner for an injunction, this was made at a time that she had deep and reasonable suspicions as to the Respondent's intentions, when he was in breach of a court order, and, while making his application for a variation, had sold at least one of his properties. I again cannot criticize the Petitioner for wishing to maintain the status quo pending a decision by the Court, and had the Respondent made a reasonable offer of a suitable undertaking earlier, I have no doubt that the Petitioner would have accepted it. The proper order in respect of this application must be costs to the Petitioner. 10. The last matter is the application made by the Respondent for the release of funds covered by his undertaking. He again was asking for the Court's indulgence, and at a time when the full picture of his financial position was far from clear. Mr. Coleman for the Petitioner has said that he could not object to our order here for each party to bear their own costs, which is the order I too consider appropriate. 11. Finally I should clarify my order as to the variation of maintenance. That order only varies the amount of the periodical payments in the order of Mr Justice Jerome Chan. The other provisions of the part of that order relating to those payments remains the same, in particular that in respect of the annual adjustment in accordance with the Average Consumer Price Index.
Representation: Mr Russell Coleman instructed by Messrs. Hampton, Winter & Glynn for the Petitioner Miss Monica Chow instructed by Messrs. Stevenson Wong & Lai for the Respondent |