W v. W

FCDJ 4722/1992

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DIVORCE JURISDICTION

SUIT NO. 4722 OF 1992

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BETWEEN

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Coram : Deputy Judge C.K. Chan in Chambers

Date of Hearing : 20 April 2005

Date of Ruling : 29 April 2005

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REASONS  FOR  RULING

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Application

1.This is an application by the Respondent husband for leave to file a notice of application for ancillary relief against the Petitioner wife under Rule 68 of the Matrimonial Causes Rules, Cap. 179.

2.The application was originally heard in Chinese. Since reference will be made to some English authorities in this ruling, I have decided to deliver this ruling in English.

3.For convenience, I shall call the Respondent “the Husband” and the Petitioner “the Wife” in the ruling herein below.

Background

4.The Husband is now aged 71 and the Wife aged 51. They married in 1971. During the marriage, three children were born out of wedlock and they are now all grown up.

5.After marriage and up to the year of 1990, the parties had operated various businesses in Hong Kong including an amusement park, several ballrooms and a sauna. The businesses were all successful. There is now a dispute on the ownership of those business ventures. The Husband said they were his business and the Wife said they were hers.

6.In 1984, a property at Yuen Long (“the said property”) was purchased in the joint names of the parties at a price of $600,000.

7.In the same year, for reasons that are not entirely clear, the Husband left Hong Kong and emigrated to Taiwan. From then on, the parties decided to live separate lives and they have never resumed cohabitation.

8.In 1989, the Wife instructed her solicitor to bring certain legal documents to Taiwan for the Husband’s signature. Those documents included a Deed of Separation and a Deed of Assignment for the sale of the said property to the Wife’s mother at a consideration of $1,400,000. Both documents were signed by the Husband. The sale was completed in the same year and the title to the said property was conveyed to the mother of the Wife. However, in the year of 1993, the Wife’s mother sold back the said property to the Wife and the parties’ eldest daughter at a consideration of $1,500,000.

9.From the year of 1990, the Husband has relocated to Shenzhen. He also stayed at the said property whenever he came to Hong Kong.

10.In 1992, the Wife started proceedings in the Family Court asking for a divorce based on the ground of 5 years separation. In 1995, the Wife obtained an order from the court to dispense with the service of the Petition and subsequently, a decree nisi was granted on 25 August 1995 which was later made absolute on 3 November 1995.

11.In the year of 2000, the Wife and the eldest daughter took out proceedings in the Court of First Instance (HCA No. 7718 of 2000) against the Husband and other persons who are in occupation claiming for vacant possession of the said property and mesne profits. The Husband filed a defence and counterclaim saying that the Deed of Assignment in 1989 was procured by false misrepresentation and asked it to be declared null and void.

12.The trial of the action was heard before Lam J on 18 August 2004. During trial, the Husband asked for amendments to the defence and counterclaim to include a prayer for a declaration that the beneficial interest in the said property is jointly owned by him and the Wife. In considering the said application, His Lordship was of the view that the proper course was for the Husband to apply for ancillary relief in the matrimonial proceedings because of the wide powers of the court in the adjustment of matrimonial properties. Therefore, the trial was adjourned so that the Husband can make an application in the Family Court for ancillary relief. He also ordered that after the application for ancillary relief is properly made, the whole matter should be transferred to the Court of First Instance for hearing.

13.By a Notice dated 26 August 2004, the Husband applied to this court for leave to file a notice of application for ancillary relief. It seems that the Husband is under an apprehension that he is required to obtain leave before he can make the application for ancillary relief in this proceedings.

Issues

14.I think there are 2 main issues here. They are:

(1)	As the Husband has never taken part in the matrimonial proceedings, is it necessary for him to ask for leave from the court before he can file a notice of application for ancillary relief?
(2)	If leave is required, should this court grant such leave under the circumstances?

Is leave necessary?

15.The statutory basis for the Husband’s application is Rule 68 of the Matrimonial Causes Rules, Cap. 179, which is as follows:

“68. Application by petitioner or respondent for ancillary relief
(1)	Any application by a petitioner, or by a respondent spouse who files an answer claiming relief, for-
	(a)	an order for maintenance pending suit;
	(b)	a periodical payments order;
	(c)	a secured periodical payments order;
	(d)	a lump sum order;
	(e)	a settlement of property order;
	(f)	a transfer of property order;
	(g)	a variation of settlement order;
	shall be made in the petition or answer, as the case may be.
(2)	Notwithstanding anything in paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently-
	(a)	by leave of the court, either by notice in Form 8 or at the trial; or
	(b)	where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 8.
(3)	An application by a petitioner or respondent spouse for ancillary relief, not being an application which is required to be made in the petition or answer, shall be made by notice in Form 8.”

16.Rule 68(1) provides that if a respondent (i.e. the Husband in this suit) has filed an answer in the suit, it is imperative for the respondent to state his claim for ancillary relief in the answer.

17.If he shall fail to do so, then r 68(2) will come into play in that the respondent will only be allowed to file a notice of application for ancillary relief if :

(a)	he either obtains leave from the court to do so; or
(b)	he has to get the consent of the other party.

18.By the wordings of r 68(2), it assumes that an answer has already been filed by the respondent. I come to this conclusion because in the beginning of paragraph (2), it starts with “ Notwithstanding anything in paragraph (1),…” In other words, it is referring to the situation as stated in paragraph (1) which is a scenario where an answer has already been filed by the respondent. From that analysis, for any other scenarios (which would include the scenario where there is no answer filed), r 68(2) would no longer be applicable and the parties have to resort to paragraph (3), which simply says that a party shall file the notice of application for ancillary relief in Form 8. No leave is said to be required from the court under r 68(3).

19.This conclusion is also supported by the observations made by Purchas LJ in the case of Twiname v Twiname [1992] 1 FLR 29 when he commented on r 68 of the English Matrimonial Causes Rules 1977 which are of very similar terms to our r 68 in Hong Kong. At p 36C, the Honourable Lord Justice had this to say:

“  I  now pass to the Matrimonial causes Rules 1977, and it is necessary only to refer to r 68. Rule 68(1) provides:
‘Any application by a petitioner or by a respondent who files an answer claiming relief, for-
(a)	an order for maintenance pending suit,
(b)	a financial provision order,…
shall be made in the petition or answer, as the case may be.
(2)	Notwithstanding anything in paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently-
(a)	by leave of the court, either by notice in Form 11 or at the trial,…’
So that under r 68(2)(a) where the petitioner or the respondent, who files an answer in an opposed matrimonial suit, has omitted to include in his prayer for ancillary relief, he requires the leave of the court to amend, and it is at this stage that the court would have a discretion to grant leave or withhold it and, in doing so, would clearly have regard, if appropriate, to the delay which was inexcusable or inordinate. But, as will appear from the judgment of Ormrod LJ in Chatterjee v Chatterjee [1976] Fam 199, Matrimonial Causes Rules 1977, r68(3) provides that could be described as an anomaly:
‘An application by a petitioner or respondent for ancillary relief, not being an application which is required to be made in the petition or answer, shall be made by notice in Form 11.’
So that a respondent, who has not filed an answer and therefore, comes within r 68(2) may, uninhibited and without leave, give notice of an application for such relief on Form 11.
It is now necessary to refer shortly again to Chatterjee v Chatterjee (above). It is not necessary to rehearse the details, but the issues related to the above powers to grant an order for a lump sum payment. At p 207G Ormrod LJ said:
‘…Unfortunately, the rule in its present form is a very inadequate protection to respondents and procures unjustifiable anomalies between applicants of different classes. It is purely procedural and formalistic; to secure the right to apply for ancillary relief of all kinds, at any time, it is only necessary to include appropriate words in the pleadings, if any. No time limits are prescribed, so a party, whose pleading was in order, is free to activate an application at any time, whereas a party whose pleading is defective requires leave to apply or to amend at all times. Moreover, a party who allows the suit to go through undefended is free of constraint at all times.’  “

20.Although what Purchas LJ said in Twiname (supra) (and also Ormrod LJ said in Chatterjee) are necessarily obiter because the issues in those cases are not entirely the same, I am in total agreement with them in the interpretation of r 68. I think the rationale is quite simple. The requirement of the relevant section is to oblige the parties to inform the other side that they are making applications for ancillary relief at the earliest opportunity in the pleadings. If anyone shall fail to do so, he or she will have to give an explanation to the court and so he/she can only file a subsequent notice for application with the leave of the court. But if a party has not filed any pleading, there may be legitimate reasons for his/her failure to do so. One obvious reason may be that he/she has never been served with the petition. That is exactly what happens in our present case. Under those circumstances, that party should be allowed to file his application for ancillary relief as of right.

21.Based on the above reasons, my ruling on the first issue is that the Husband is not required to seek leave from the court to file his notice of application for ancillary relief.

Should Leave be Granted?

22.My ruling in the preceding paragraphs should be able to dispose of this application. But in case that I really have to decide on whether leave should be granted under the facts of this case, I am minded to grant such leave to the Husband to file his notice of application for ancillary relief in any event.

23.On the face of it, the Husband is rather late in making his application for ancillary relief as the Decree Absolute was granted back in 1995. However, one should not lose sight of the fact that the Wife has applied for and has successfully obtained an order to dispense with the service of the petition on the Husband. Rightly or wrongly, the Husband has never been notified of the divorce proceedings. I think it would be unjust to deprive the Husband his right to apply for ancillary relief under those circumstances. Of course, whether the Husband would succeed in getting the relief at the end of the day is dependent on entirely different considerations. But based on the available facts in the present application, I just can not say the intended application for ancillary relief is totally without merits. Therefore, leave will be granted if it is really needed under r 68(2) of the Matrimonial Causes Rules.

Application to avoid the Deed of Separation

24.In the Notice of Application for Leave, it is also stated that the Husband intends to apply for a declaration to avoid the Deed of Separation dated 8 January 1989 and the financial arrangements contained therein. However, in his skeleton arguments, counsel for the Husband submitted that they were not asking this court to make a declaration to that effect as the matter will be canvassed at a later time, presumably in the Court of First Instance. Therefore, I will treat the Husband being content not to pursue this particular matter for the moment and so there will not be any order made in that regard.

Order

25.Since I have ruled that there is no requirement for the Husband to seek leave before he can file a notice of application for ancillary relief, it is my view that this application should never have been made in the first place. Therefore, the application for leave to file a notice of application for ancillary relief be dismissed.

Costs

26.The usual rule is for costs to follow event. However, I note that not only the Husband is under the misapprehension that he needs to seek leave before he could proceed to file a notice of application for ancillary relief, the Wife’s position seems to be the same. Therefore, part of the hearing was also wasted as the Wife proceeded to argue against the application on that false premise. I think it is only fair for the Husband to bear part of the costs of this application. So I order the Husband to bear half of the costs of this application which is to be taxed if not agreed. The order will be in the form of an order nisi which will be made absolute after the expiry of 14 days from the handing down of this ruling.

Mr. P. Yip instructed by Messrs. Hau, Lau, Li & Yeung for the Petitioner

Mr. A. Lam instructed by Messrs. Louis K.Y. Pau & Co. for the Respondent