L v. N

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 3759 OF 1993

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Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing :  10^th March 2008.

Date of Judgment : 10th March 2008.

Date of Handing Down of Reasons for Decision : 12^th March 2008.

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REASONS FOR DECISION

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1.On 17^th June 1993 the Petitioner Wife filed a petition in these proceedings for the dissolution of her 3 years childless marriage with the Respondent Husband. She was then a travel consultant while the Respondent was a police inspector. On 22^nd July 1993 the parties signed a consent application prepared by the Petitioner’s solicitors in which the Respondent agreed to pay the Petitioner maintenance of $6,000.00 per month until she remarried or migrated to other country, and undertook to pay all existing mortgage instalments in respect of the former matrimonial home at Lyttelton Road, Hong Kong which was registered in his sole name and occupied by him, and that upon the discharge of the mortgage by the year 2000 the Respondent was to sell the property and to pay the Petitioner 40% of the net sale proceeds.

2.On 28^th September 1993 the decree nisi of divorce was granted to the Petitioner by Judge Barbara Chan and that the said terms in the consent application were also made an order of the court (“the divorce order”). The decree nisi was made absolute on 11^th November 1993.

3.Pursuant to the divorce order the Respondent made regular payment of the said monthly sum of $6,000 to the Petitioner until December 1999 when the payment was stopped without any explanation to the Petitioner. On 22^nd May 2000 he sold the former matrimonial home for a net sum of $3,280,000 without paying the Petitioner the 40% thereof, i.e. $1,312,000 under the said order. On 14^th September 2001 he was forced to leave his employment with deferred benefits including his pension for disciplinary reason. 

4.The Petitioner had since taken various steps to enforce the said divorce order including a High Court action against the Respondent, of which it is not necessary for the present purpose to go into details save that all were futile due to the unknown whereabouts of the Respondent. It was during one of such attempts when the Petitioner learnt of the Respondent’s departure from the police force.

5.On 4^th October 2005 the Petitioner issued a summons under s.28 of Matrimonial Proceedings and Property Ordinance, Cap.192 for an attachment of income order against the Respondent for payment of the 40% of the sale proceeds of the former matrimonial home and the monthly maintenance sum of $6,000 (“the 1^st summons”). It was sent by post to the Respondent’s last known office address at the police department and the registered office of a company known as P International Ltd. of which the Respondent was one of the directors.

6.At the hearing in which the Respondent was absent, the Petitioner changed her application to one for the transfer of the Respondent’s deferred pension under s.12 of Pensions Ordinance, Cap.89 in satisfaction of the money due from him under the said divorce order. At the invitation of the court, the Respondent issued another summons on 2^nd March 2006 to join the Director of Accounting Services in the proceedings and for the transfer of the Respondent’s deferred pension (“the 2^nd summons”). This summons was however never served on the Respondent.

7.At the hearing on 4^th May 2006 and upon receiving no objection from the Department of Justice representing the Director, the Petitioner was granted an order for the transfer of the Respondent’s deferred pension in satisfaction of the sums due to her under the divorce order being $1,312,000 of her 40% share of the sale proceeds and $432,000 being the accrued arrears of her monthly maintenance. On 11^th January 2007 the Petitioner received the Respondent’s commuted pension gratuity in the sum of $1,391,201.75 from the Director of Accounting Service.

8.On 6^th June 2007 the Respondent took out the summons now before me for setting aside the order of 4^th May 2006 and for the Petitioner to account for all the money received from his deferred pension and to pay the money into court, on the ground that neither of her summons had been served on him, and that she had never properly taken out an application for transfer of pension which led to the said order.

9.At the hearing on 10^th March 2008, I allowed the Respondent’s application in setting aside my order of 4^th May 2006 and ordered that the balance of his pension received by the Petitioner be paid into court on or before 9^th April 2008. I now give my reasons.

10.Rule 3 of Matrimonial Causes Rules, Cap.179 provides that subject to the provisions therein, the Rules of the High Court shall apply.……to the practice and procedure in matrimonial proceedings in the Court of First Instance or in the District Court.

11.As there are no provisions in the Matrimonial Causes Rules for setting aside order or judgment, O.13, r.9 of the Rules of the High Court shall therefore apply, and it provides that the court may on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.

12.In exercising its power to set aside default judgments, the court will distinguish between a judgment that was obtained irregularly and one that was not so obtained : O.13, r.9/2, as it was held by the Court of Appeal in Po Kwong Marble Factory Ltd. v. Wah Yee Decoration Co. Ltd. [1996] 4 H.K.C. 157, CA that an irregular judgment would be set aside ex debito justitiate, i.e. without regard to the merits of the proposed defence.

13.One of the instances where an irregular judgment would typically be set aside is bad or ineffective service of the writ or summons : see Po Kwong Marble Factory; Guangdong Trust and Investment Corp. Hong Kong (Holdings) Ltd v. Yuet Wah (Hong Kong) Wah Fat Ltd [1997] H.K.L.R. 489; Desirable International Fashions Ltd (in liq.) v. Chiang Shi Chau [1997] 3 H.K.C. 170; Wing Lung Bank Ltd v. Ho Man Lam [1999] 3 H.K.C. 368.

14.When a defendant deposes that he has not received the writ through the post, the court has little option but to believe this save when there is sufficient material to cast doubt upon the defendant’s credibility to enable the court to disbelieve him, which is a matter of evidence dependent on the circumstances of the case : see Wei Bingqing v. Xie Diangrong, unreported, HCA No. 2654 of 2003, [2006] H.K.E.C. 634.

15.The Respondent in this case has denied having ever received the 1^st summons, as at the time when it was issued in October 2005, he had already left the police force and P International Ltd. and therefore could not have received the summons sent to their respective address. The evidence before the court is that the Petitioner had earlier been informed by the Commissioner of Police on 18^th December 2002 (Respondent Bundle : 668) that the Respondent had already left the police force on 14^th September 2001, and hence should have known that it would be unlikely that the 1^st summons would reach him at his former office in the police department.

16.As regard the service at P International Ltd.’s registered office, records from the Company Registry reveal that the Respondent had already resigned from his directorship on 22^nd October 2001 (Exhibits Bundle Part II : 291), again it is unlikely that he would have received the summons, and the Petitioner would have known about it had she made a quick search of the company at the Registry in October 2005.

17.Ms So for the Petitioner argued that the court should take into account of the Respondent’s evasive behaviour in deciding whether service of her 1st summons was irregular or insufficient. However evasive the Respondent might have been, and which he denies, that was several years ago, and even then in her High Court proceedings the Petitioner was required to serve her writ on the Respondent by substituted service by posting a notice of the proceedings on a newspaper. There was no such application by the Petitioner in respect of either of her summons in these proceedings.

18.Furthermore, while it is true that the court has a discretionary power to allow the Petitioner to change the nature of her claim from attachment of income order to transfer of pension at the hearing of her 1^st summons, I agreed with the Respondent that the change was something so fundamentally important and significant that he should have been given an opportunity to be heard, or at least served with the 2^nd summons, as it was pointed out by Deputy Judge Andrew Chung, as he then was, in the case of CHAN KAM KEE v. CHAN KAM MAN, HCMP 1042/1995 : “It is one of the fundamental principles in our legal system that litigants have a right to be heard. Service of the process is a necessary corollary to that principle without which the right to be heard would be empty words”.

19.For these reasons I agreed with the Respondent that the order obtained by the Petitioner on 4^th May 2006 was irregular, and following Po Kwong Marble Factory it was not necessary for me to consider the merits of the Respondent’s defence in setting aside that order, no matter how little the Petitioner thought there might be.

20.As the parties have agreed, the Petitioner shall have until 9^th April 2008 to pay the balance of the Respondent’s pension into court, and I shall wait for the parties to take the next step in the proceedings, and that would include the question of costs. 

Ms R.So instructed by M/s H. H. Lau & Co. for the Petitioner.

Ms E.Ho of M/s Chaine, Chow & Barbara Hung for the Respondent.