Gail Isobel Turner v. James Gienn Turner and Another
Read the full judgment text of HCMC 59/1968 on BabelCite. This High Court CFI judgment.
1. Application is made for the issue of a writ of fi. fa. in respect of arrears under a maintenance order and for the inclusion therein of a direction for the arrest of the judgment-debtor in case insufficient property should be found. The learned Assistant Registrar is of opinion that there is no jurisdiction to issue a writ of fi. fa. in this form but has referred the matter to me under s.18(6) of the Supreme Court Ordinance as it is a matter of some importance.
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HCMC000059/1968 IN THE SUPREME COURT OF HONG KONG DIVORCE JURISDICTION ACTION NO. 59 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 14th May, 1970. ----------------- RULING ----------------- 1. Application is made for the issue of a writ of fi. fa. in respect of arrears under a maintenance order and for the inclusion therein of a direction for the arrest of the judgment-debtor in case insufficient property should be found. The learned Assistant Registrar is of opinion that there is no jurisdiction to issue a writ of fi. fa. in this form but has referred the matter to me under s.18(6) of the Supreme Court Ordinance as it is a matter of some importance. 2. There is no doubt that under the Rules of the Supreme Court a judgment for the payment of money may be enforced by imprisonment under 0.49B. Although 0.45 r.1(1)(g) refers to "an order of committal made under 0.49B" 0.49B does not in fact require any order: the appropriate form of execution is issued upon the filing of a praecipe. In my opinion the form of writ of fi. fa. at present in use in the court and, as I understand, invariably issued upon the filing of a praecipe for such a writ does not properly include a direction for arrest should insufficient property be found: although such a direction may be had for the asking I think it should not be given unless expressly asked for. 3. In the present case such a direction is asked for although no praecipe is required since in a matrimonial cause a writ of fi. fa. issues as of course upon an affidavit of service of the order and of non-payment: r.64 of the Matrimonial Causes Rules 1968. In a matrimonial cause recourse cannot be had to the Rules of the Supreme Court by virtue of 0.1 r.2(3) of those Rules but may, in some circumstances, by virtue of r.82 of the Matrimonial Causes Rules 1968. However, rule 64 of the Matrimonial Causes Rules 1968 further provides that an order for payment of money in a matrimonial cause must be enforced by writ of fi. fa. or sequestration and no provision is made for enforcement by imprisonment. In this matter there is no room for the operation of r.82 and 0.49B of the Rules of the Supreme Court is not applicable. 4. Accordingly I agree with the learned Assistant Registrar that no direction for the arrest of the judgment-debtor should be included. 14th May, 1970. Representation: |