Maurice Andre Gensburger v. Evelyn Apryl Gensburger and Others
Read the full judgment text of on BabelCite. was delivered on 3 April 1968.
1. On March 19th I granted the husband petitioner a divorce on the ground of the adultery of the wife respondent with two named co-respondents. In his petition the petitioner prayed for custody of the two children of the marriage and for damages to the amount of $50,000 against the two co-respondents. There is also a summons before the court seeking the variation of a post-nuptial settlement of property.
|
HCMC000113A/1967 IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 113 OF 1967 -----------------
----------------- Coram: Briggs, J. Date of Judgment: 3 April 1968 ----------------- JUDGMENT ----------------- 1. On March 19th I granted the husband petitioner a divorce on the ground of the adultery of the wife respondent with two named co-respondents. In his petition the petitioner prayed for custody of the two children of the marriage and for damages to the amount of $50,000 against the two co-respondents. There is also a summons before the court seeking the variation of a post-nuptial settlement of property. 2. On March 19th I adjourned the question of the custody of the children into chambers. As it was more convenient the matter of damages was dealt with at the same time. 3. In chambers I was informed by counsel that the first co-respondent had agreed to pay a sum by way of costs to the petitioner and that therefore he was not pressing the claim for damages against the first co-respondent. I am only concerned therefore, so far as the question of damages is concerned, with the second co-respondent; to whom I shall refer in this judgment as "the co-respondent". 4. Both the petitioner and the respondent wish to have the custody of the children by which I mean the custody, care and control of the children. There is no question here of custody being awarded to one party and the care and control being awarded to the other party. Both the petitioner and the respondent gave evidence in the proceedings in chambers. In addition the petitioner called his solicitor as a witness and certain tape recordings were played. Though he was represented by counsel the co-respondent did not give evidence. 5. I will deal with the more important question first, the question of custody of the children. 6. The parties were married in Hong Kong on March 7th 1956, the petitioner, the husband being then 28 years old, the respondent, the wife twenty one: this makes their ages about forty and thirty-three respectively today. 7. Two children were born of the marriage, a boy in 1959 and a girl in 1962. At present both the parties together with the children are living in the matrimonial home, a flat in Macdonnell Road, Hong Kong. The husband controls a well known jewellry business in Hong Kong and though I was not told how much he earns he is a man of considerable means. He is well able to maintain the children financially and intends that they shall be educated in a manner suitable to his position in life in which he includes a university education. 8. The wife has a little property of her own and it was accepted that her mother who is living in Hong Kong is a woman of some substance. It is safe to assume therefore that if custody of the children is given to the wife there is no question of their having to live in straitened circumstances. 9. The petitioner in his evidence said that the marriage was very happy. After ten years of marriage he said that the physical relationship between them had somewhat cooled. And he found that the sexual act was less spontaneous than it had been. However, he said normal relations with his wife were continued despite this because he realised that it might have been frustrating for his wife if a change were made. 10. In 1966 the respondent had a discussion with the petitioner. She said that she feared that they were drifting apart and she suggested a temporary separation. This came as a surprise to him and he thought that the respondent being momentarily depressed was dramatising herself. He said she did not complain of the infrequency of sexual intercourse: what she complained of was that he did not pay enough attention to her. At that time of course the petitioner was not aware that the respondent was carrying on an adulterous association with another man. 11. In the early morning of 26th July 1967 the petitioner was awakened by his wife's sobbing. She then confessed to him that she had been committing adultery with the second co-respondent for some months. The petitioner said that until this he had no idea that his wife had been unfaithful to him. He was very shocked indeed and he asked her if she had committed adultery with any other man. She replied that she had not and at her suggestion the petitioner agreed to see her current lover, the second co-respondent later that day. At that interview the co-respondent admitted that he and the respondent had been having an adulterous intercourse for several months. 12. From that time the petitioner lived apart from the respondent though they still occupied the same flat. 13. On July 27th 1967 he consulted his solicitor and on his advice a letter was sent to the co-respondent. This referred to the adultery and stated that the petitioner was contemplating divorce proceedings in which the co-respondent would be cited and that damages would be claimed. However, the letter went on to say that if the co-respondent would refrain from further association with the wife and in addition provide the petitioner with a full and frank confession of the adultery it might be possible for the petitioner to forgive his wife and to abandon any thought of a divorce. 14. At about the same time the petitioner put the same proposition before the respondent. He asked for a frank confession in writing . The Petitioner said that purpose of this was that the wished to keep the family together but felt he could not forgive his wife unless and until he knew the full detail of what she had done and in addition that she was genuinely contrite for what had occurred. In effect he wanted her to throw herself on his mercy. He said that if he did not have her confession he would have a lingering doubt in his mind as to what really had occurred. That these were his motives was occurred by the petitioner's solicitor in the witness box. 15. The petitioner said that the respondent refused to give him a written confession. The moment a written confession was mentioned she was on her guard and she was anything but repentant. It was implied that she would give up her association with the co-respondent but this was not referred to at the time. In the witness box the petitioner in describing his wife's conduct made use of the adjectives "defiant and cheeky". The position of the children was discussed and he thought that the marriage might be patched up for their sake. However, he came to the conclusion that he would petition for divorce. At that time he was not aware that his wife had had a previous adulterous association with the first co-respondent. 16. A petition for divorce was filed on September 13th 1967 citing the second co-respondent only. This was amended so as to include the first co-respondent in November 1967. 17. The petitioner came to know of the association with the first co-respondent sometime in August 1967. He learned of this through the respondent. 18. It would appear that the respondent and the first co-respondent committed adultery from the autumn of 1964 according to himself until January 1966 when he left Hong Kong. The respondent said in the witness box that it commenced in January 1965 but continued until he left. And adultery with the second co-respondent began in April 1966 and has continued eversince. 19. In August 1967 the petitioner purchased a tape recorder and recorded various telephone conversations of the respondent with the co-respondent, her mother and a close woman friend. These were recorded unbeknown to the respondent until January 2nd 1968 when the petitioner sent a transcript of part of one reel to her solicitor. Despite this she continued to use the telephone and the petitioner continued to make recordings of what was said. Excerpts from the tapes were re-taped by the petitioner for the purpose of these proceedings. This was done for convenience as there were a great number of reels and only certain portions of them were relevant. I heard this evidence and there was considerable cross examination on the conversations recorded. 20. The purpose of putting in this evidence was to prove that the respondent was not a fit person to have the custody of the children. When dealing with this evidence it must be borne in mind that people do make unguarded statements which they don't mean from time to time. And also that several of the excerpts given in court were of conversations at a time when the petition for divorce had been filed. The petitioner and the respondent were still living together with the children. And the respondent was still associating with the co-respondent. The resultant nervous strain on the respondent emerges clearly from some of the tapes. However, I have not thought it right to disregard this evidence and I have relied on the tapes to a certain extent in reaching the decision I have reached. 21. So much for the aspect of adultery. There is no doubt that the wife deceived her husband over a long period of time. 22. It is the husband's case that he is the proper person to have custody of the children, and that his wife is by reason of her conduct and character not a fit person to have such custody. 23. The domestic arrangements at the matrimonial home were that at first there was a cook who had been employed by the petitioner while he was a bachelor for some years. There is a disagreement between the parties why he left them but leave them he did. Then there seems to have been a period when servants came and went. At the time with which we are concerned there was a general amah only. No baby amah was kept. The respondent did the cooking and according to the petitioner, he and the respondent looked after the children: the respondent bearing the major share in this. 24. The petitioner told me that he was as much with the children as a normal business man in Hong Kong can be. He sees them in the morning, before and at breakfast: He takes both of them to school and he sees them again at lunch since he returns home for lunch. He also sees them at the weekends. He returns home in the evening and sees them then. He takes a keen interest in their welfare, health and upbringing. And attends the meetings of the Parents and Teachers Association of the boy's school. 25. The petitioner also points out that if he is awarded custody the children will continuo to live in their own home: there will be no uprooting: they will be among familiar surroundings and in a familiar place: following a familiar routine save for the absence of the respondent. 26. The petitioner states that if he is awarded the custody of the children, he intends that the children shall continue schooling at their present schools and that he intends to employ a Mrs. Roxburgh to look after them. This lady did not give evidence but I understand that the children know her well. Both children have previously attended the nursery school which she runs in Macdonnell Road in the mornings. There is evidence from both the petitioner and the respondent that she is a person eminently suitable so to be employed. The children know and love her and she is experienced with children and knows how to manage and instruct them. The intention is that this lady shall look after the children in the afternoons and evenings: her attendance will not be necessary in the mornings since the children as I have said attend school then. 27. I have the impression that the petitioner is very attached to his children and is a firm parent: not being afraid of insisting upon obedience when he considers it is necessary, which, from what I have heard, has been necessary so far as the boy André is concerned upon some occasions. He is concerned for the moral welfare of his children. He says this would be best secured by their remaining with him, the wife of course having access to them. He is not sure what influence his wife would have on the children if she were to be awarded custody. He stressed the necessity for the children to live with and not merely visit their father. 28. So far then we have the petitioner's case, he says he is the father of the children; he is the innocent party, so far as the divorce is concerned; and he has made suitable arrangements for the children's upbringing: that for the children to remain where they are will make for stability and security. 29. And he goes further as I have said, he says that the respondent is not a person who is fit to have custody of the children. The first point he makes is of course that she has committed adultery not once but twice and he suggests that this might occur again if she remarries which may or may not occur. 30. The petitioner does not deny that the respondent has looked after and fed the children. But he insists that he has also helped to do this. Furthermore he says she gives in to the children too often and allows the boy at least to have too much of his own way. He instanced two occasions when the respondent had to telephone him at his office in order to secure the obedience of André, who would not do his school home-work. 31. The petitioner admits that the children are on good terms with the respondent and that they love each other. At least since petition was filed he knows that the co-respondent takes the respondent out together with the children. To this he has not objected provided that the respondent and co-respondent conduct themselves properly. He agrees that there is no dispute between himself and the respondent as to the religion or the education of the children. 32. From what I have heard it would seem that the petitioner and respondent are of incompatible temperament. The petitioner is a serious minded man of wide interests. He is very interested in his business and when he takes up a hobby he takes it up in earnest. He is interested in swimming, riding and tennis. The respondent's interests are limited to looking after the house and children and painting with a little sculpture. She is not interested in her husband's work or hobbies. She does not swim and is not interested in sport. She paints and sculpts a little as hobbies, but it would seem that gossip, fashion to a certain extent and of course the telephone occupy much of her time. There is no suggestion of extravagance or anything of that nature. What is suggested is that she is a woman who demands attention and does not really understand how to occupy her mind. 33. The recorded evidence shows that she is a woman of quick temper who often speaks before she thinks. Also there is evidence that she is capable of acting in a most hysterical way. For on one occasion she took a quantity of sleeping pills and had to be hospitalised. She says that this was as a result of a falling out between herself and the co-respondent, and though the petitioner suggested another reason I need not decide which of the two is right. It may be remarked that on this occasion the children were forgotten and while she was away the husband looked after them. There is also her attitude towards Mrs. Roxburgh, a lady whom she says she has known for a long time. In one of the conversations on tape she said that this lady would be the most suitable person to look after the children if the petitioner is granted custody. However she wrote her a most unpleasant letter and during the hearing of this case contacted her by telephone and complained to her of her conduct. These allegations when put to the respondent elicited a reply which she was frequently to make when confronted with what she had said in the past. She said she did not mean what she said. She was quick tempered and often 'hit out'. I have to decide whether someone with such a temperament is more suited to have the custody of these children than the petitioner, the only complaint as to the character of whom is that he is firm, cold and a perfectionist. 34. Neither of the parties seems very much interested in night life. And they appear to have very few friends, though of course the family of the respondent or some members there of live in Hong Kong. They do not entertain and indeed seem to have lived very quiet lives. The husband said in evidence that his wife never complained of this. And from her evidence I had the impression that she was resigned to it. It might well be that her preoccupation with her secret adulterous associations filled up what otherwise would have been a void. I say this because of the very limited interests to which she has confessed and she admitted that she was bored. 35. Though the respondent confessed that she had committed adultery with the second co-respondent she did not confess to the husband concerning the adultery with the first co-respondent. However, she talked about this on several occasions with the second co-respondent over the telephone. She filed an answer to the petition for divorce and counter-petitioned asking for the discretion of the Court to be exercised in her favour. In the cross-petition she prays that she may have a decree on the ground of cruelty; she also prays that she may be given the custody of the two children. 36. It is her case that she has wanted custody of the children all along. Some of her remarks recorded on the tapes would seem to bear a directly opposite interpretation. And this was put to her in cross-examination. She said that he is a person of a quick temper and that she made the remarks in question when she was under a nervous strain and did not mean them. I accept this explanation. I think that in this case I can accept the fact that both husband and wife are devoted to their children and that both of them genuinely desire to have the custody of them. 37. The respondent's case for custody is that the children are of an age when they require the constant presence, influence and love of their mother. She says that she loves them and can provide them with a suitable home: that she and the co-respondent intend to marry and that she has rented a flat suitable for the four of them. As to the petitioner she says that his conduct towards her, his neglect of her if not the cause of the break up of the marriage, is at least a very contributory cause. She admits that he loves his children but says it is in an Olympian way. His work and his habits, his self centredness, prevent him from giving them more than nominal attention. And if not exactly neglectful of them he is indifferent to their everyday welfare though she did admit he has a keen interest in the education of the boy. 38. As to the first point it is true of course that the children are of an age when the love and care of a mother is of very great importance. The boy is 8½ and the girl is almost 6. 39. The respondent said that she intended to marry the co-respondent. In a statement provided by his solicitors in which he confesses to his adultery with the respondent, the co-respondent makes the same statement. However, he did not give this evidence on oath and I have not seen him. From the tape recordings it would appear that at the time the recordings were made the respondent and co-respondent were by no means sure that they wished to marry. Some excerpts of the tapes showed that there was very deep disagreement between the two of them on some subjects. And on several occasions the respondent could be heard criticising the co-respondent to third parties in the strongest terms. The respondent said these were mere lovers quarrels. They sounded to me to be evidence that a marriage was unlikely and that if there were a marriage it would not have much chance of success. The respondent says that the co-respondent is a Swiss bachelor holding a contract post with a firm carrying on business here in Hong Kong. She is from a Shanghai family and has lived most of her life in Hong Kong. He is rather younger than she is. He is a Roman Catholic. She views with equanimity, the fact that if she marries she may have children by him and she does not think that the lives of her present children would be disturbed by this. Finally the co-respondent, though he knows the children, has never actually lived with them. The respondent said that she has watched the children when they have met the co-respondent and that they get on well enough together. 40. The only importance of whether or not the respondent remarries is how that would affect the children. Whether I think that the presence of a foster father will make for greater or less stability. I have not seen or heard the co-respondent. But the respondent admitted that he is a man who slept with other women while their affaire was in progress: and that he has been known to go out drinking. I cannot infer that the co-respondent will remain in Hong Kong. His contract is for 4 years and has not much longer to run though of course it is possible that it will be renewed. If the respondent marries him her domicil will become Swiss. At present her domicil and that of the children is Hong Kong. 41. According to the respondent the co-respondent asked her to marry him as long ago as August 1966. His proposal was contained in a letter which she received from him when she was on leave in Europe with her husband. And she herself says she had had no doubts that she wished to marry him for at any rate the last 3 months. However, in view of the evidence from the tape recordings I am more than doubtful whether firm promises to marry each other have been exchanged. 42. I do not think that the evidence goes further than this:- 43. If custody is awarded to the respondent the children may or may not have a step father and may or may not after sometime leave Hong Kong. 44. I do not think that there is any doubt that the flat which has been rented by the respondent would be suitable as a residence for the children though of course the children would have to move out of their present home. 45. The respondent also says that the petitioner would not be a suitable person to have custody of the children both by reason of his character and by reason of his work and hobbies. 46. She described the petitioner as "completely closed". She told the court of his various interests and how engrossed he became with each one. However she also said she made no complaint about this and that she did not attribute the break up of the marriage to this. Nor did she attribute the break up of the marriage to her own adultery. She said the real trouble between the parties was that the petitioner had cooled towards her physically and that he was disinterested in her. She said there was no communication between them. And I will say at once that she evinced no sign of having done anything to improve matters herself. She is utterly uninterested in the working life of her husband and made this very clear, nor does she interest herself in his hobbies except in sculpture. This lack of communication commenced in 1963 according to the respondent. 47. She admits that the children are fond of their father and that they respect him: but she has the impression that they are afraid of him because he is very firm with them and insists upon obedience when he gives an order. 48. The respondent said that the petitioner came back at late hours daily from his work so that the children were in bed before he returned. She said he would only see the children for a short while each day. However her evidence on this point save in one respect did not disagree with that given by the petitioner himself. In fact the petitioner sees as much of the children as any ordinary Hong Kong business man, indeed probably he sees more of them than most, since he returns home daily for lunch. I think the respondent was inclined to exaggerate when dealing with the actions of the petitioner. And on this aspect of the case where her evidence and that of the petitioner conflict I much prefer the evidence of the latter. On some occasions she contradicted her own evidence: for example she said that she received no gifts from him but had to agree later that she had. 49. I took a long note of the evidence of the respondent and though these are proceedings as to the custody of the children, it is most noticeable that most of her evidence is concerned with herself. Her reasons for the break down of the marriage, her complaints, her possible remarriage etc. Very little of it was concerned with the welfare of the children. I have reached the conclusion that the respondent is a woman who is much more interested in herself and her position as a neglected wife and of course in her lovers than in the children. I do not doubt that she loves then but I think they take second place in her life to herself and her own affairs. 50. Counsel referred me to many authorities. I agree with counsel for the petitioner that the golden rule in a case involving the custody of an infant is that the physical and moral welfare of the child is paramount. I also agree that this does not mean that the welfare of the child is the sole consideration, the conduct of the parties must also be considered. These principles are enshrined in section 2 of the Infants Custody Ordinance. 51. It is dangerous to rely on decided cases but my attention has been drawn to In re. L.(1). In that case the Court of Appeal reversed the decision of the trial judge awarding care and custody of the children to the mother and awarded it to the father. The mother of the children had committed adultery and left the matrimonial home. The father's conduct was blameless. The children were 3 and 5 years old. In awarding care and custody to the mother the trial judge assumed that since it was for the welfare of children of that age to be brought up by their mother he should award her the care and custody, putting on one side the conduct of the mother. This the Court of Appeal said was the wrong approach. 52. Mr. Zimmern has pointed out that in that case the husband was anxious for a reconciliation with his erring wife and that the conduct of the husband was unimpeachable. Mr. Zimmern has also drawn my attention to Allen v. Allen(2) which is authority for the proposition that it should not be assumed that because a wife has committed adultery once she may do it again and is unsuitable therefore to have custody of a child. The adultery of the mother is only one aspect of the conduct of the parties to be taken into consideration. I accept this proposition also. 53. I must now try to apply these principles to the facts of this case. 54. The children are about 8½ and 6 years old. I have not seen them and I will say at once that I do not think that any useful purpose would have been served by an interview with them. They are of such an age that generally speaking they would be better brought up with their mother. I did consider whether an order should not be made along the lines of that made in In re. O (Infants)(3) where the court gave the care and custody of the son of the marriage to the father and the care and custody of the daughter to the mother. However, this would not in my view be in the interests of the children in this case and neither party wishes for such an order. 55. In considering the conduct of the parties I hold that the petitioner is of course the innocent party. Mr. Zimmern suggested that this was not so. But all the respondent would say was that the petitioner was a perfectionist and a firm parent. She specifically said she made no complaints about his hobbies and his work. Her real complaint was his coldness towards her which she has not shown she did anything to improve or overcome. She did make vague allusions to money suggesting that he was too careful with it in view of the fact that he is a man of means. But there was no direct attack on the husband on that line. She also complained that he closed down the charge accounts at various stores etc. and inserted an advertisment in a local newspaper to the effect that he would not be responsible for her debts. One can sympathise with the respondent for the embarrassment this must have caused. But she is of course incapable of regarding the marriage objectively. This is a case where a man who has been described by his wife as nervous and very reserved, suddenly discovers that his wife has been unfaithful to him for a period of some months, when he thought his marriage if not ecstatically happy it was a successful one. Some re-action must be expected in those circumstances. 56. If custody is given to the father the children will remain in familiar surroundings. The arrangements made for their upbringing and education seem to me to be excellent though I would qualify this because it may be that another servant will be necessary later. 57. The respondent deceived the petitioner not merely once but twice and over a considerable period of time. And it is important to bear in mind that she withheld the knowledge of her original adultery from the petitioner for some time. In addition she appears never to have expressed the slightest contrition for the break up of this marriage. Even the original confession to her husband was made not from remorse but from nervousness engendered by her having to keep her adulterous association secret. 58. There is also the uncertainty as to her future. She may or may not marry the co-respondent and if she does there are grounds for suggesting that he would hardly be a suitable foster father of two young children. This evidence was supplied by herself and I accept it for what it is worth. 59. I think it is plain that the presence of the petitioner acts as a brake on the temperament of the respondent. If she does not marry again there will be no such break and I have heard enough evidence to be convinced that this would not be in the best interests of the children. The respondent appears to be unable to control her temper. She admitted that she did have a bad temper, but she said that she could control herself. But I have heard evidence to the effect that she does not control herself. And she admits that her mother is the same. It is obvious that if custody is awarded to the respondent her mother will come more into their lives. From what I have heard of that lady I do not think that that would be in the best interests of the children. 60. There are also two other points to consider. The elder child appears to be rather a handful and the respondent admitted on the tapes that she had great difficulty in controlling him more than once. The father is quite capable of doing so. Also the father is an intellectual man with wide interests in the business, scientific and sporting fields: this cannot be said to be true of the respondent whose interests are narrow indeed. I am not suggesting that the children are old enough to understand electronics or wish to do so but when considering their welfare it is important to consider the background of their lives. And a parent who is alive to so much of what passes in the world is to be preferred to one whose interests seem limited by the talk of the town. 61. Taking all the evidence into account I think the most just order to make is to award the custody of the two children of the marriage to the father, the petitioner. There will be an order for reasonable access in favour of the wife. 62. I now turn to the claim for damages against the co-respondent. The petitioner claims the sum of $50,000. This is a particularly rare claim in Hong Kong. I have only been able to find one instance in modern times when such a claim was made and successfully made. This was in a legally aided case and is unhelpful as it is unreported and no written judgment containing the reasons for the decision exists. 63. However this is not to say that such a claim may not be brought. It is no answer to such a claim that it is old fashioned and out of date. Indeed the court of Appeal in England has expressly stated that so to hold was erroneous in law (See Earl v. Earl(4)) 64. The most modern case in England is Pritchard v. Pritchard and Sims(5), and I respectively agree with the following portion of the judgment of Willmer L.J.:-
65. I do not intend to set out all the facts of this case again. I agree with counsel for the co-respondent that whether or not the wife marries the co-respondent is irrelevant to this issue. Further there must be taken into consideration the fact that by the time the co-respondent came upon the scene the wife had already been unfaithful to her husband with another man. 66. What therefore in this case is the actual value of the wife lost? 67. First as to the pecuniary aspect. 68. The busband said that he will have to employ someone to look after the children. And provisional arrangements have been made to this end. There will be a saving in that he will not have to maintain the wife. He estimates his net loss at $600 per month. This is the amount which he will have to pay the person who is to look after the children, but in addition the petitioner says he will have to employ a cook. No serious attempt was made to dispute this figure of $600 per month. Taking into consideration that the younger child is 6, I think that a multiplier of 5 years is reasonable. It is necessary to scale the resulting figure down to make allowance for the normal hazards of existence and the fact that the petitioner may re-marry. I think the fair figure under this head is $30,000 and I will award that sum under that head. 69. I do not intend to award any sum for loss of the consortium of the wife in view of the history of her infidelities. 70. There remains the question of damages for the injury to the husband's feelings. There is evidence that the petitioner was deeply shocked when he first learned of the adultery of his wife. Pritchard v. Pritchard(5) is authority for saying that damages under this head are at large: that it is incorrect to award a conventional and presumably small sum. But that is not to say that an award under this head should be for a large amount. The petitioner is young and, if I may say so, an intelligent and sophisticated man. Although the feelings of the petitioner may have been lacerated, I suggest that wisely he will look to the future and not dwell in the past. Further, I think, it must be borne in mind that the situation in which he finds himself is by no means abnormal. 71. For the co-respondent it is urged that both the character of the husband as well as that of the wife is relevant in estimating the amount of damages. I have already dealt with this in an earlier part of this judgment and I need not repeat what I have already said. The relative coolness of the husband to the wife must be taken into consideration. Also to be considered is the fact of his attitude so far as the conduct of these proceedings is concerned. Even after he had incontrovertable evidence of the adultery of his wife he continued to eavesdrop on her conversations with a sad persistence. Also in the co-respondent's favour is the fact that there is no question here of his dazzling the respondent with his wealth or of their being any betrayal of friendship. 72. The sum awarded under this head in Pritchard v. Pritchard(5) was substantial. But the facts of that case differ considerably from the facts before me. There is evidence here of deception being practised by the co-respondent over a considerable period of time but there is no evidence that the co-respondent had any great difficulty in achieving his object. I think the proper sum to award under this head is $10,000. There will therefore be judgment for the petitioner for $40,000.
3rd April, 1968. Representation: O.V. Cheung Q.C. & de Basto (Peter Mo & Co.) for Petitioner. A. Zimmern (Deacons) for Respondent. Thornhill of Johnson, Stokes & Master for 1st Co-Respondent. Donnelly (Stewart & Co.) for 2nd Co-Respondent. (1) 1962 1 W.L.R. 886. (2) 1948 2 A.E.R. 413. (3) 1962 1 W.L.R. 724. (4) Times 2 June 1959. (5) 1967 P. 195. (6) [1920] P.126; 36 T.L.R. 265. |