Wong Che Wai Raymond v. Wong Chung Yee Fong Helen and Another

HCMC000064A/1981

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

BETWEEN

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Coram: Hon. Power, J.

Date: 24th October, 1983.

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JUDGMENT

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1. In this matter the respondent appealed against the order of the master as to interim maintenance. I have already dealt with that part of the appeal by ordering an increase in the amount singularly ordered. She also appealed against the master's refusal to make any order for costs.

2. There are two matters for me to consider now:-

3. The learned master when he made no order for costs said, "I intend to make no order for costs. I do not intend to make what may be regarded as the 'usual' order in favour of the wife because - (a)  The award I now make in 1983 is not appreciably more than appreciably more than what the husband commenced paying voluntarily in 1981 and has been paying since; (b) The wife's conduct and attitude in my view has been lamely responsible for turning, what is intended as a swift and speedy remedy for urgent needs into proceedings of some length and complexity".

4. It is argued by Mr. Payne who appears for the respondent/wife that as the wife succeeded in her application in obtaining a greater amount than was being paid her at that time by her husband and that as, prior to the hearing, no offer to pay any greater amount had been made by the husband, costs Should have followed the event.

5. When considering the order made by the learned master as to costs, it is necessary to bear in mind the finding which he made as to the assets of the wife. He found that "the wife has had substantial property assets and dealings and has sources of income from this and elsewhere. The full extent of this may have to be canvassed in further proceedings. She is clearly not without independent means and is not solely dependent on her husband". He was making an order than in circumstances where he had found, as a fact, that the wife had an independent income.

6. It is necessary also to look at the effect of master's order. He was, by making no order as to costs, clearly indicating that, in his view, each party should bear some costs of the proceedings. The effect of making no order as to costs was that each party had to bear half of the overall costs of the proceedings As the proceedings occupied six days the master might have given effect to the view he took as to costs by ordering that each party pay to the other the cost of three days of the hearing. He achieved this end in a more expeditious way by simply ordering that there be no order as to costs.'

7. I am satisfied that the first of the two reasons he gave or so ordering is not sustainable. The husband was paying $9,000 a month up to the time when the master made his order. The wife was awarded $12,000 a month. If there had been no other circumstances to consider she clearly would, the husband having made no offer to pay any sum larger than the $9,000, have been entitled to her costs of the proceedings.

8. I must now turn to consider whether his order is sustainable by virtue of the second reason. The learned master found that the wife's conduct and attitude had been "largely responsible for the length and complexity of the proceedings". He clearly took the view that the proceedings would have been much shorter and less complex had the wife not raised matters which should not have been canvassed in an application for interim maintenance. His use o?the words "largely responsible" seems to indicate that he was satisfied that the wife's conduct and attitude had at the very least, unnecessarily doubled the length of the proceedings. That being so he would have been perfectly entitled to order the husband to pay three days of the wife's costs and the wife to pay costs of three days to the husband. I see nothing to criticize in the fact that he took a more expeditious method of achieving that end. I am quite satisfied, therefore, that it would be wrong for me to interfere with his exercise of discretion in this regard.

9. It is suggested that even if it was a proper exercise of discretion at the time when the order was made, as the wife has now successfully appealed and had the base figure awarded to her raised from $12,000 to $16,000, this Court should vary the master's order in her favour. I see no reason for so doing. The master's order had the effect that the husband paid half of the costs of the proceedings and that she paid the other half. He was satisfied that the wife should bear the burden of the cost of half of the proceedings because she had unnecessarily prolonged them. That situation cannot be, in any way, affected by the fact that she has succeeded in her appeal. Having succeeded in her appeal, she must retained the benefit which she gained from the master's order i.e. that the husband pay for half of the proceedings. She has not, however, succeeded in showing that that master was wrong in his view that she was "largely responsible for the length and complexity of the proceedings" and must, therefore, continue to bear the burden placed upon her by the order.

10. For the above reasons I am satisfied that the appeal against the learned master's refusal to make any order for costs should be dismissed.

11. I turn now to the application for costs of the appeal proceedings before me. The hearing commenced on Monday, 11th July 1983. Some preliminary matters were canvassed and then the Court adjourned to the following day to allow parties to prepare and agree bundles of documents. On mornings of Tuesday, 12th July Court dealt with an application by Mr. Payne asking that husband be required to produce his books of account.

12. On afternoon of 12th July Mr. Payne opened his case and continued his opening until close of hearing on Wednesday, 13th July. At this point in the hearing the wife was still claiming that she was entitled to interim maintenance of more than $60,000 per month.

13. On morning of Thursday, 14th July, Mr. Payne agreed to proceed upon basis of balance sheet and expenses for year ending 1982 produced by the husband and indicated that his client was now limiting her claim for interim maintenance to a figure of $41,000.

14. During afternoon of Thursday, 14th July, wife was called and after she had given some evidence the cross-examination commenced. The cross-examination continued on Friday 15th, Monday 18h, Tuesday 19th, and concluded late on afternoon of Wednesday 20th.

15. The husband gave evidence on Thursday 21st and his cross-examination commenced just before the Court adjourned on that day. He was then cross-examined until the Court adjourned on Friday 22nd.

16. Counsel then addressed the Court on Monday 25th, one and a half days were lost in preliminary manoeuvres as to which, in my view, neither side was to blame more than the other.

17. Mr. Payne open his case for about 2½ days. The wife was cross-examined for 4 days. The husband's evidence and cross-examination occupied 2 days. The addresses occupied one day.

18. The appeal was launched on 11th March 1983 upon the basis that the learned master's decision was wholly wrong. On 24th June 1983, the husband produced his accounts for the year ended 31st December 1982 which disclosed that his estimate of income for that period had been understated at the hearing before the learned master by an amount of $21,000.

19. The respondent, having seen these accounts, did not seek to limit the appeal to a hearing upon the basis that she was entitled to an increased amount of maintenance proportionate to the amount of under stated income disclosed therein. Nothing of this sort was suggested until the morning of the fourth day of the hearing. On that morning, the bench having made the comments which are set out at page 8 of the decision, Mr. Payne said he would proceed upon the basis of the balance sheet and the expenses for the year ending 1982. It is true that Mr. Payne indicated that he would not be challenging the findings of the learned master. He went on to state, however, that the wife was seeking not what was an appropriate proportion, in the light of the master ruling, of the amount by which the income was understated, but all, or very nearly all, of that amount. She was seeking to have the award raised from approximately $21,000 to $41,000. The wife was not, therefore, at this stage saying that, given that her husband had, in fact, earned $21,000 more than the estimated amount used by the master; she should, applying the findings and approach of the master, be given an appropriate proportion of that amount. Had this been the wife's approach, the matter might have very quickly resolved itself. This, however, was not her approach. Although the understated amount fell considerably short of doubling the husband's income she was urging the Court to ignore the findings of the master, as to her needs and those of the children, and to arrive at a conclusion as to those needs which would result in a virtual doubling of the award. That being so, the husband was, I am satisfied, placed in the position where he was forced to go on and strenuously defend the application. Furthermore he was, by the time of the hearing of the appeal, able to establish that the wife had repeatedly refused to disclose and had, indeed, denied the existence of relevant bank accounts in her name.

20. It is true that the wife was successful in the appeal. However, there can be no argument that a not inconsiderable part of the blame for the length of time occupied by the appeal hearing lies at her door. The husband did fail in his attempt to establish that he had not really understated his income and it was upon this ground that the appeal was successful. However the claim of the wife for interim maintenance was, even in its eventual limited form, grossly overstated and it was because of this that the husband was put in the position where he had to make vigorous defence. He succeeded in establishing that the wife had deliberatedly failed to reveal relevant bank accounts in the hearing before the master and that the master's findings that she "was not without independent means", which were hotly disputed by her in the witness box, were wholly justified. Although it had been suggested that she was not calling into issue any of his findings, throughout the proceedings before me she continued to challenge this finding of the learned master. Indeed it was largely upon the basis that she was without independent means, that she rested her contention that she should be paid interim maintenance of $41,000 per month. The appeal hearing lasted for 11 days. Had the wife proceeded upon the basis that she was entitled to a proportion of the amount by which the income was understated, in accordance with the findings and approach of the master, it seems to me inconceivable that the matter would have lasted more than 5 to 6 days. The wife was eventually successful upon the basis that the findings and approach of the master were correct and that she was entitled to proportion of the said amount in accordance therewith. That being so each side is, I am satisfied, entitled to costs of half of the hearing. I, therefore, consider it proper to make no order as to costs.

Representation:

Mr. Pirie (King & Co.) for petitioner

Mr. Payne (Day & Co.) for respondent