Wendy Wenta Seng Yuen v. Philip Pak Yiu Yuen

HCMC000018D/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

ACTION NO. 18 OF 1983

_________

BETWEEN

____________

Coram:    Deputy Judge Nazareth, Q.C. in Chambers

Dates of hearing:    22nd and 31st May 1985

Date of delivery:     6th June 1985

__________

DECISION

__________

1. The respondent in this action disclosed that he had a 70% share in a highly lucrative practice. Subsequently in interlocutory proceedings he mentioned that he then had a 10% share. Alarmed by what appeared to be a very large disposition which could affect her ultimate financial provision, the petitioner applied under section 17 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) for the disposition to be set aside. Upon that application Deputy Judge Barnett on 4th April 1985 ordered that:

2. Affidavits have not been filed by either the petitioner, who only had leave to do so, or by the respondent who was ordered to do so.

3. The respondent now applies for the petitioner's application to be struck out on the grounds that it is frivolous, vexatious and an abuse of the process of the Court; and that consequently the Order of the 4th April be set aside.

4. Miss Leong for the respondent submits first that rule 74 of the Matrimonial Causes Rules (Cap. 179) requires that an application to set aside a disposition shall, unless otherwise directed, be supported by an affidavit by the applicant stating the facts relied on in support of the application. The petitioner's application in this case does not exhibit an affidavit of the petitioner, but instead only an affidavit made by the petitioner's solicitor. Nonetheless, I see no merit in the submission, for as I read the rule, it merely requires a supporting affidavit. There must be numerous cases where the supporting evidence can only come or can best come from persons other than the applicant. Miss Leong has not cited any authority in support of her submission and without clear authority I would not be disposed to accept a technical view, moreover a view which would import a requirement that seems to me to serve no useful purpose but on the contrary to hinder the object of section 17 of the Matrimonial Proceedings and Property Ordinance, which plainly is to enable transactions intended to defeat claims for financial provision to be set aside.

5. Miss Leong also submits that under rule 74(3) of the Matrimonial Causes Rules, the application must be served upon "the person in whose favour the disposition is alleged to have been made". That has not been done in this case. Mr. Rodway for the petitioner says that it is not known who are the persons to whom the disposition was made. Miss Leong responds that one Mr. P. T. Yu has been disclosed as one of the persons to whom the disposition has been made. However that may be I think that point should be decided at the hearing of the application and not at a preliminary stage, particularly as it could be rectified in the meantime. Given that the object of section 17 of the Matrimonial Proceedings and Property Ordinance is to enable dispositions that may reduce financial provision to be set aside, is it right where a disposition is not disputed that difficulty in ascertaining to whom it is made should obstruct the remedy? I think I should be slow to permit that to be done. I do not think the interests of justice or the purposes of section 17 of the Matrimonial Proceedings and Property Ordinance would be served by striking out the application at this stage on the ground that the persons to whom the disposition is alleged to have been made have not been served.

6. I proceed then to Miss Leong's next point which is that section 17 of the Matrimonial Proceedings and Property Ordinance for the purposes of the petitioner's application in this case provides in subsection (1)(b) that the disposition must have been made with the intention of defeating the petitioner's claim for financial relief. That is clearly so, and I need not set out the text of subsection (1)(b). Miss Leong concedes under subsections (3) and (4) of section 17 that since the disposition was made within 3 years, there would be a presumption of such intention if the disposition would reduce the amount of any financial provision. Again that is clearly so and I will also not set out the text of those provisions. But Miss, Leong goes on to submit that there is no possibility in this case of the petitioner securing any further financial provision as she has, upon her own admission, already obtained approximately $40 million from her husband in the course of their marriage. That may well prove ultimately to be the result. It is conceivable that in some circumstances it may be that such a conclusion so obviously .and so clearly excludes the possibility of the contrary, that a Court may deem it proper to strike out an application for setting aside a disposition upon similar grounds at even a preliminary stage. However, on the facts before me I do not think that is the position here. Nor do I regard myself as being in a position to say what might be the maximum amount of financial provision that could be awarded to the petitioner. Moreover, as-Mr. Rodway has very pertinently pointed out, the respondent has claimed that the monies in the possession of the petitioner-are held by her in trust for the family. If that claim is upheld it is not inconceivable that the amount of the petitioner's assets and his. remuneration could prove very material to the financial provision ultimately made to the petitioner. Mr. Rodway has also pointed out that the remaining 10% partnership share not disposed of has apparently produced some $2 million per annum, which demonstrates the significance of the disposition. I am therefore also unable to accept Miss Leong's second submission.

7. Accordingly I dismiss the respondent's application to strike out. Unless counsel wished to be heard on the point, I propose to order that the costs of the application be to the petitioner.

Representation: