Hrt v. Rht

FCMC 5488 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5488 OF 2006

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BETWEEN

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Coram : Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)

Date of Hearing :  30 May 2007

Date of Judgment :  21 June 2007

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J U D G M E N T

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Introduction

1.This is an application by a Petitioner wife for maintenance pending suit pursuant to s. 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO).  For convenience sake, and without in any way pre judging the issues that exist between the parties, I will refer to them as husband and wife in this judgment.  The wife has also issued a summons under s. 17 MPPO and rule 84 Matrimonial Causes Rules, seeking inter alia to set aside certain dispositions made by the husband.  Counsel for the wife sought directions that the summons be served on A and K, the second daughter of the parties and her husband.  A direction was given to that effect.  I also directed that service be effected in any alternate names that A and K may utilize.  Counsel for the husband indicated that a similar application might be issued by the husband against the wife in due course.  That application is not presently before me.

Background to the “Marriage”

2.The central issue at present before this court concerns the existence or otherwise of the parties’ marriage.  In summary the wife says that the parties are validly married and the husband says that they are not.  I need not concern myself with this for the moment.  At the beginning of November, the parties will come back before me for five days, in order to determine this issue.  What is not in dispute, however, is that the parties cohabited in Indonesia from March 1960 and that there are four children of the family.  The children play a prominent role in this and other litigation.  They are

1) R, daughter aged 46, divorced with one child and suffering from ill health

2) A, daughter aged 44, married with two children

3) T, son aged 42, married with two children

4) M, son aged 37, married with two children.

3.There is some dispute over the paternity of M and again for the purposes of this summons that matter remains largely irrelevant.

4.The wife says that the parties separated some 12 years ago in 1995.  The husband for his part says that the parties began to separate in 1976 and that the separation was complete by 1980.  In any event the wife filed for divorce in Hong Kong on the 12^th May 2006 and ten months later on the 22^nd March 2007 issued a summons for maintenance pending suit.  The wife in her affirmations in support also seeks

i) a contribution towards her medical expenses and

ii) a contribution or full payment of her legal costs going forward.

5.Reference was also made to a lump sum for medical expenses already incurred.  However, it was common ground at the hearing that a maintenance pending suit application was not the proper forum for an application for a lump sum, albeit a small lump sum payment, as the court has no jurisdiction to entertain an application of this nature (i.e. the payment of an interim lump sum).  The wife also asks that the maintenance pending suit be backdated to the date of her petition.

Background to the Present Litigation

6.This application forms only part of a series of litigated suits being contested between the parties and a variety of related family corporate structures.  There are 14 different companies, situated in Hong Kong, the Marshall Islands, Dubai, India, Switzerland and Indonesia.  Given the complexity of the situation I think it might be helpful if I set out the litigation as it has been presented to date.

Jakarta

Singapore

8.a)          Writs are issued against T and M by V International Limited (Hong Kong and Marshall Islands) at the direction, it appears, of the husband who is a Director of both companies.  The writs are dated the 24^th March 2006 and 16^th July 2006 respectively.

Hong Kong

9.a) A writ is issued by M against the husband and N Int’l Ltd on the 23^rd March 2007.

b) A writ is issued by M against S Limited on the 2^nd April 2007 for libel.

c) A writ is issued by M against S Limited for the return of US$29,033.62.

10.It is against this myriad of inter connecting pieces of litigation that the application for maintenance pending suit came before this court.  Before I deal then with the substantive issues, there are two other preliminary matters that were raised that I would like to address here.

Preliminary issues

Oral evidence

11.One preliminary issue that was raised was whether or not this was one of those rare cases where oral evidence should properly be given on an application for maintenance pending suit.  Mr. Pilbrow SC for the wife said not.  It was the wife’s contention that this was a maintenance pending suit application like any other and that the normal approach should apply, namely that the application should be made on the basis of submissions only.  Mr. Egerton for the husband said that they wished to cross-examine the wife.  A Notice of Cross-examination was filed with the court on the 28^th May 2007, only two days before the hearing.  On that point it was noted by the court that the wife resides in Indonesia, although there was some confusion as to whether she was in Indonesia or Singapore at the time of the hearing.  In any event she was out of the jurisdiction.  No application was made to adjourn the hearing on this basis.

12.Given the circumstances I was satisfied that it was appropriate to proceed on the basis of submissions only, not least because I did not wish the matter to become a full ancillary relief hearing, in anything but name only.  I agree that the objective of maintenance pending suit is not to examine the parties’ finances in detail but to provide appropriate relief on an interim basis pending a full examination of the parties’ financial circumstances at an ancillary relief hearing.  This is why the court’s approach is necessarily broad-brush, the idea being that any over payment or underpayment can be dealt with by the court at a later date.

Discovery

13.The other preliminary issue to be raised was that of discovery.  I was particularly concerned about the acquisition by the wife of the 75% shareholding in P Indonesia.  The circumstances surrounding this acquisition and the reasons for it are hotly contested.  The wife’s position is that this is immaterial as a) this was an asset and the application before the court only concerns maintenance and b) it was a dormant company in any event.  The husband’s case is that this transfer was part of a conspiracy to take over his business empire and that this and other action taken by the wife and the sons had lost him revenue of approximately US$10 million.  The husband also says in his Form E that

“The operation of The Main Company has generated substantial profits in the past.  At the end of April 2005 while I was in Jakarta, I was told by the Sales Manager Mr. AP and which was confirmed by M that the Main Company recorded a gross profits of USD800, 000 for the year 2004”.

14.The suggestion therefore is that the company is or has been income producing.  No evidence was filed in relation to this company.  In the wife’s Form E, she says that her estimate of the value of the shareholding was “not currently available”.  Further she says, in her third affirmation that

“ …… P has been inactive since June 2005.  I have received no dividends from the company”.

The husband in his Form E says

“75% shares of the company have purportedly been transferred to the Petitioner.  I requested unaudited and or audited accounts of the company, which were not provided.  The last unaudited accounts given to me were for the month of 31-12-2000 ……”

15.As I have said above, the parties also do not agree which is the main company.  The husband says P Indonesia is the main company, whereas the wife says that N. Int’l Limited, a company domiciled in the Marshall Islands, is the main company.

16.For the purposes of this application it is impossible to determine on this evidence whether or not the 75% shareholding in P is income producing, or if the income is now produced through another corporate vehicle.  Whether or not this is a financial resource at the wife’s disposal, either directly or through T and M, is also impossible to determine.  If however, at the end of the day the court finds that the wife did have financial resources at her disposal, which were not adequately disclosed at the time of making this maintenance pending suit application, then taking the broad-brush approach envisaged, suitable adjustments could be made at a final ancillary relief hearing.  Further the matter can be revisited when determining costs.

It was then on this basis that the matter proceeded to hearing.

The main issues

17.There are a number of issues to be determined by the court namely

1) Should the husband be ordered to pay the wife any maintenance at all ?

2) If so, what amount should the court order the husband to pay for the wife’s general living expenses ?

3) Should the husband be ordered to make a contribution towards the wife’s medical expenses, as part of the order for maintenance pending suit ?

4) If so in what amount ?

5) Should the husband be ordered to make a contribution towards the wife’s litigation costs going forward, as part of the order for maintenance pending suit ?

6) If so in what amount ?

7) Does the husband have the ability to pay the sum ordered ?

8) Should the sum be backdated to the date of the petition ?

The law

Maintenance pending suit

18.First to the law.  Mr. Pilbrow very helpfully referred me to the appropriate section of Rayden that deals with the issue of maintenance pending suit in a situation, such as this, where the validity of the marriage is challenged.  It says as follows :

“Orders can be made if validity of marriage is challenged
16.14. The court may in its discretion award maintenance pending suit to a wife notwithstanding that the husband is raising a question as to the court’s jurisdiction to entertain the suit, or where there is an issue as to whether there was ever a valid marriage, or that the marriage was bigamous or void.  Once the court decides, if it does, that it has no jurisdiction to hear a particular suit, any prior order as to maintenance pending suit will forthwith cease to be of effect and no order for maintenance pending suit may thereafter be made in respect of that suit which itself has ceased to be of effect” (Rayden 18^th edition Ch 16.4)

19.Section 3 MPPO Cap 192, states that the only governing principle is that the court shall make such order, as it considers reasonable in the circumstances.  Consequently, as I have said above, applications such as these are approached on a broad-brush basis.  A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime.

20.Regarding the principles that under pin an application for maintenance pending suit, paragraphs 16.17 and 16.18 of Rayden, 18^th edition, are also of some assistance.

“The court has an unfettered discretion to award such sum as it thinks reasonable.  There is no hard and fast rule, and no fixed proportion : each case depends on its own facts.  It has been said that the approach to maintenance pending suit should be empirical, and that ‘in the ordinary sort of case the district judges who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a rough and ready conclusion, or to take a ‘broad brush approach’’.  The overall consideration is the actual needs of the parties’ pending suit.  Although the provisions of s. 25 MCA 1973 are expressed to arise only when the court is deciding whether to exercise its powers under s. 23, 24 or 24A, the court may nonetheless have regard to the criteria listed in s. 25 on an application for maintenance pending suit.

In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure.  However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.  The court can look at the reality of the situation …… Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there are every opportunity to do fairness by set off ……”

21.Hong Kong’s equivalent of s.25 Matrimonial Causes Act 1973 is s. 7 MPPO.  In a Hong Kong Court of Appeal decision CACV 75/2004 unreported, this principle is reaffirmed.  The Hon Cheung JA, giving judgment for the court said

“9. The power to award maintenance pending suit to the wife is under section 3 of the Matrimonial Proceedings and Property Ordinance (‘the Ordinance’, Cap 192).  Provision for the children are under section 5 (1) of the Ordinance.

10. In respect of maintenance pending suit for the spouse the court, may regard the conduct of the parties and the factors set out in section 7 (1) of the Ordinance.  Although these factors are expressed to arise when the court is deciding whether to exercise its power under section 4 (financial provision on divorce), section 6 (order for transfer and settlement of property on divorce) and section 6A (order for sale of property), in practice it will be unusual for the court on an application for maintenance pending suit to be in a position to make a finding of fact sufficient, for example, to deal with conduct : Rayden & Jackson on Divorce and Family Matters 17th Ed. Vol 1 Para 21.6 and Yung v Yung (Civil Appeal No 21 of 1985)”

                The court then set out the s.7 factors.

22.Another case CYTS v LCK [2005] 1 HKC 376 is of some assistance here.  In that case the Court of Appeal refused a husband leave to appeal.  Here the Judge at first instance had not believed that the husband’s business had ceased trading or that money withdrawn had been to repay loans to his family.  In the head note it states as follows :

“Held, dismissing the application :

9) Generally where there was a dispute of fact, a court should not reject a respondent’s evidence without cross examination save in limited exceptions.  However, this was a case related to financial provisions pending suit and the judge’s task was to consider whether to make an order for periodical payments pending suit as he thought fit pursuant to s. 3 Matrimonial Proceedings and Property Ordinance (Cap 192).  He was only required to fix a reasonable figure as to maintenance, having regard to the needs and ability of the parties to pay.  It was inappropriate and unnecessary for the judge to make a detailed investigation of the financial position of the parties or to resolve conflicts of evidence.  Wong Che Wai Raymond v Wong Chung Yee Fong Helen [1983] 1 HKC 556 applied.  Long v Farrer & Co and Farrer [2004] BPIR 1218 considered (at 378F-H)

(2) In matters relating to financial provisions after the breakdown of a marriage, the court was fully entitled to take into account the standard of living of the parties prior to the breakdown.  Such standard of living was a ready yardstick for the consideration of the financial needs of the parties, barring credible and acceptable evidence supporting the respondent’s allegations, the judge was fully entitled to place great weight on the standard of living of the parties prior to the breakdown of the marriage (at 3781 – 379C)”

23.To that end C V F, FCMC 1707 / 2000, an unreported case from this court, is also of some assistance.  In that case Chan J cited Thorpe J in F v F (Ancillary Relief: Substantial Assets) (1995) 2 FLR 45.  Thorpe J said

“I think that it is necessary to establish a yardstick that more nearly reflects the standard of living which has been the norm for the wife ever since marriage and for the husband for considerably longer”.

Litigation costs

24.In so far as the law on the funding of litigation costs is concerned, Counsel referred me to A v A [201] 1 FLR 377, which established the principle that maintenance pending suit could include an element for legal costs.  This principle was followed in the Hong Kong case KGL v CKY [2003] 2 HKC513.  Reference was also made to TL v ML [2006] 1 FLR 1263.  Mr. Egerton referred me in particular to a section in TL v ML where Deputy Judge Nicholas Mostyn refers to Thorpe LJ in Moses -Taiga v Taiga [2005] EWCA Civ 1013 as follows :

“ …… The modern reality is that the highly specialist solicitors and counsel necessary for the conduct of big money cases will no longer do publicly-funded work.  So if the applicant has no assets, can give no security for borrowings, cannot guarantee an outcome that would enable her to enter into an arrangement such as that which was upheld in Sears Tooth v Payne Hicks Beach [1997] 2FLR 116, then there is no source of funding of the litigation other than the approach to the court for a maintenance pending suit that will include a substantial element to fund the cost of the litigation.  Obviously in all these cases the dominant safeguard against injustice is the discretion of the trial judge, and it will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction”.

25.Since then there have been a number of judgments in which the exceptional definition has been qualified or further developed in some way.  In the very recent case Currey v Currey [2006] EWCA Civ 1338, this issue was revisited by a differently constituted Court of Appeal.

26.Two very useful articles have recently appeared in Family Law on this issue.  In the March 2007 edition a summary of the position to date can be found in an article entitled Maintenance Pending Suit and Costs Allowance by David Salter.  (reference – page 218).  This was followed by a shorter article in the May edition by David Burrows entitled Interim Costs Provision out of Costs Allowance.  (reference p.426).

In Currey v Currey [2006] EWCA Civ 1338,

“the conditions for a ‘costs allowance’ are as follows :

(1) That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).

(2) That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).

(3) That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4) That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20])”

(Interim Costs Provision out of Costs Allowance.  (reference p.427).

To quote from David Salter’s article :

“The meaning of the ‘exceptional’ test originating in Moses-Taiga (and the glosses placed on it in TL v ML and C v C) were considered by a differently constituted Court of Appeal in Currey and Currey [2006] EWCA Civ 1338, [2007] FLR (forthcoming), where the lead judgment was given by Wilson J.  After confirming that there was no doubt as to the existence of the jurisdiction to include a costs allowance (at para [16]), Wilson LJ indicated that the repeated use by Thorpe LJ [in Moses-Taiga] of the word “exceptional” has become controversial.  He considered that the word ‘exceptional’ was obstructing the proper exercise of the jurisdiction to include a costs allowance.  He continued (at para [19]) that the three-stage test referred to by Thorpe LJ should not be taken literally and that he would go further than Nicholas Mostyn QC in TL v ML, as did Hedley J in C v C where the wife could give security for borrowings and consider whether it was reasonable to expect her to do so.  At para [20], Wilson J held that the initial, overarching enquiry should be into whether the applicant for a costs allowance could demonstrate that she cannot reasonably procure legal advice and representation by any other means. Therefore, to the extent that an applicant has assets (as in C v C), she has to demonstrate that they cannot reasonably be deployed (whether directly or as the means of raising a loan) in funding legal services …… Wilson LJ went on to add (at para [21]) that the overarching enquiry to which he had referred was a necessary condition of making an order for a costs allowance.  It would not always be a sufficient condition.  He therefore disagreed with the analysis of Nicholas Mostyn QC in TL v ML to the effect that exceptional meant satisfying the three criteria identified in Moses-Taiga.  Other factors may well come into play.  The subject matter of the proceedings would always be relevant, as would the reasonableness of the applicant’s stance in the proceedings”.

27.Wilson LJ, referring to the facts of the case, then set out the two-stage approach favoured by the Court of Appeal.  He said at para 22

“In my view the judge’s approach to the application was essentially correct.  He posed to himself the central question whether the husband could reasonably procure legal advice and representation otherwise than by a costs allowance.  Having answered the question negatively, he proceeded to weigh Mr. Le Grice’s other points and indeed held that they carried significant force; yet in the end he favoured making the allowance”.

The Wife’s case

28.The wife’s case is that she needs US$4,000 per month to cover her monthly outgoings, US$1,000 per month as a contribution towards her medical costs and US$7,000 per month as a contribution towards her litigation costs i.e. a total of US$12,000 per month as maintenance pending suit.  She says that the husband maintained her until May 2005 and that she has survived to date by relying on her savings and that she can do so no longer.  She says that as her husband, the Respondent has a legal duty to support her and that in contrast her sons have no legal duty to do so.  Therefore, it is argued that I should not take into account any support that she may have received from the sons in the past and that this is not a legal resource that I should be cognizant of.  The wife is 70 years old and suffers from ill health.  She lives in Jakarta and has never worked outside the home.  The issue of medical insurance appears to be disputed.  The wife says that she has no medical insurance.

29.It is the wife’s case that previously the husband paid US$7,000 per month as her maintenance, but that this came to an end in 1999 when M moved into the Jakarta property that she then resided in.  He then contributed towards the household expenses.  The wife says that M moved out in 2005 and that the maintenance was not increased.  It ceased altogether in May 2005.

30.On litigation costs it is the wife’s case that the court is only bound by KGL v CKY [2003] 2 HKC 513, which I do of course accept.  Everything else is of persuasive value only.  On that premise Mr Pilbrow urged me to allow the wife’s claim for legal costs and said that I was not bound by Nicholas Mostyn’s guidelines in TL v ML [2006] 1 FLR 1263.

The Husband’s case

31.The husband’s case is that this application is strategic.  He says that it has been made in order to put pressure on him in relation to the other ongoing litigation and is part of a conspiracy by the wife and the sons to take control of his insurance business.  In so far as maintenance is concerned the husband says that he had an agreement with M, entered into in April 2005 whereby he was to receive US$5,000 per month from the company.  Of that US$2,000 was to go to the wife for her support and US$3,000 was to go to R for her support.  He points to e-mails, which appear to support this contention.  It is not disputed however, that payments stopped in April / May 2005.  The husband says that this coincided with the illegal transfer of the 75% shareholding in P Indonesia to the wife.  The husband says that as the wife now controls P Indonesia, she should receive dividends and the like from the company and not need financial support from him.  On this basis the husband asks that the application be dismissed.  If however he is ordered to pay anything, he says that US$1,000 per month should be sufficient.  The husband also alleges that the wife has other funds at her disposal.

32.In so far as medical costs are concerned the husband says that the wife had medical insurance and that the medical insurance was cancelled by M.

33.On the issue of litigation costs it is the husband’s case that the wife has not satisfied the criteria as originally set out by Lord Justice Thorpe and as identified by Deputy Judge Nicholas Mostyn as set out above, i.e. that this is an “exceptional case” in which an order for litigation funding can properly be made.

The husband is 67 years old and also suffers from ill health.

The Evidence

34.I must now turn to consider the issues, the law, and the parties’ evidence as set out in the affirmations filed together with the submissions made by counsel.

Should the husband be ordered to pay the wife any maintenance at all ?

35. The evidence before me is that from 1 January 2003 - April 2005 the wife was receiving US$2,000 per month, presumably as her maintenance.  I was referred to bank statements which show this regular amount being deposited into her bank account each month.  The last regular payment was made in April 2005 at which point there was US$41,773 in the account.  No regular payments are made out of this account save for a payment of US$1,000 or US$2,000, which the husband says is for a CHIT account – a form of savings in Indonesia.  Certainly this account is not used for regular monthly living expenses, but on the face of it appears to be a savings account.  The wife transferred approximately US$25,000 out of this account in January 2003.  From April – December 2005 she only withdrew US$4,900, at a time when she said she was receiving nothing from the husband.  The wife acknowledges this and says in her second affirmation that

“The bulk of my expenses during this period were paid for from my cash savings.  In addition, I had to borrow money from my sons to pay for my legal expenses which have been mounting since November 2005”.

36.The wife says that previously she received US$7,000 per month, but no evidence was produced in support of that contention.  The husband says that US$2,000 per month had been paid for “quite some time” and he refers to a bank transfer dated the 21^st July 1999 in that amount.

37.It is the husband’s case that following an altercation between him and M in April / May 2005

“ …… it was agreed that the allowance of USD2,000 per month would be provided to the Petitioner from my account with the Main Company in which I held 75% of the shares.  It was mutually agreed that M would receive a salary of USD4,000 per month and I would receive a salary of USD5,000 per month.  The Main Company would pay the USD2,000 to the Petitioner for my salary.  The balance of my salary in the sum of USD3,000 would be used to pay R, who is in poor health.  At the end of each financial year, the net profits of the Main Company were to be shared between M and myself on a 50 / 50 basis.  All these terms were proposed by the Petitioner who was appointed as an arbitrator by M for the future arrangement between M and myself”.

38.For whatever reason, it is not disputed that this did not happen and that payment of US$2,000 ceased sometime between April and June 2005.

The transfer of 75% shares P Indonesia

39.Although as I have said above, I have some sympathy with the husband on this issue, I will not dismiss the wife’s claim for maintenance pending suit on the basis of an allegedly illegal transfer of shares in a company which may or may not be income producing.

Other funds at her disposal

40.The husband says that the wife has other funds at her disposal.  As at the 21^st March when the wife filed her affirmation in support of her application for maintenance pending suit, she said, on her own evidence, that she HK$314,471 in various bank accounts.  On the 27^th April, just over a month later, she said that she only had HK$69,500 at her disposal.  She does not adequately explain the reasons for the difference.  In addition the husband alleges that the wife previously held a bank account with Citibank, Singapore in the joint names of herself and M which held approximately US$400,000.  This sum has now been transferred to the sons.  The wife says that this money was not hers, but was simply placed in her name for reasons of corporate convenience.  Reference is made to other accounts including an additional sum of approximately US$118,000 odd.  The wife says that this money has been spent.  The husband says that she clearly has funds at her disposal, which she should now avail herself of.  Not so says the wife.  Again the existence of these accounts or otherwise goes to discovery and the parties’ duty to make full and frank disclosure of their means.  If at the end of the day the disclosure is found to be inadequate then appropriate steps can be taken to remedy any apparent unfairness between the parties at a later stage.

Financial support from the sons

41.To what extent the wife has been and continues to be supported by the sons is also of concern.  I am of the view that this support, if it exists, is a financial resource to which the court may have proper regard under s.7 MPPO, especially given the present circumstances.  I was not, however, addressed on this point specifically, save that reference was made to utility bills, held in the name of the sons, but relating to the matrimonial home.  Mr. Pilbrow said that this should not be regarded as being anything unusual given the fact that the wife is elderly and in poor health.  Without any specific evidence on the point I do not think I can take the matter very much further.

42.Given the above I am satisfied that the husband should be ordered to pay maintenance to cover the wife’s living expenses.

If so, what amount should the court order the husband to pay for the wife’s general living expenses ?

43.The wife says that she now needs US$4,000 per month to cover her living expenses.  The husband says if he is to pay anything, US$1,000 should be sufficient.

44.The evidence in support of the wife’s case is very limited.  She has provided a breakdown with estimates setting out the IDR amount and its US$ equivalent.  The exchange rate is not given. I have adopted the exchange rate as at the 17^th June 2007 provided by XE.com currency converter.  As at that date the exchange rate was US$1 to IDR9,046.  The wife provides copies of only 4 bills – a water bill dated the 22^nd December 2006 in the sum of IDR 253,580 (US$28) under the name of T the elder son, an electricity bill dated the 20^th February 2007 in the sum of IDR 1,263,650 (US$140) also under the name of T and two telephone bills under the name of M both for the month of February in the sum of IRD 736,583 (US$81.50) and 97,100 (US$10) respectively.  Although I accept the first two bills, I did not find the evidence of the telephone bills convincing.  No evidence was produced in support of the wife’s other estimated expenditure.  In addition I was not pointed to any evidence in relation to the cost of living in Indonesia generally.  The wife’s bank statements are of no assistance as there is no evidence that she used her bank accounts to pay for her monthly expenses.  As I have said, by way of partial explanation, the wife says that she only withdrew US$4,900 for the period from April to December 2005 because

“The bulk of expenses during this period were paid for from my cash savings”

I also find this explanation unconvincing.

45.Given that it seems to me appropriate to look to the situation prior to the cessation of the payment of maintenance and to use that as a guide.  It is not disputed that the husband previously paid the wife US$2,000 per month.  The wife says that back in 1999 he was paying her US$7,000 per month but there is no evidence in support of that statement.  In any event the wife is now seeking US$4,000 to cover her present living expenses.  Consequently I will use the maintenance previously paid as a yardstick to determine the amount of maintenance that should be paid now.  I will make an order that the husband pay the wife US$2,000 per month to cover her general living expenses.

Should the husband be ordered to make a contribution towards the wife’s medical expenses, as part of the order for maintenance pending suit ?

And if so in what amount ?

46.The wife seeks US$1,000 per month towards her medical expenses.  E-mails were produced which showed that the wife had been covered by medical insurance in 2002.  The wife says that the husband cancelled her medical insurance.  The husband says that the sons cancelled her medical insurance and he believes that she presently has other medical insurance with an alternate provider.  The wife says she has no medical insurance.

47.Given that, the wife’s age and her alleged ill health I do not think the wife’s request unreasonable.  I will order that the husband pay the wife US$1,000 per month towards her medical costs.

Should the husband be ordered to make a contribution towards the wife’s litigation costs going forward, as part of the order for maintenance pending suit ?

48.I find this a much harder issue to determine.  The wife is seeking a contribution towards the funding of her litigation costs going forward.  In the wife’s Form E she estimates her legal costs to date in relation to both the Hong Kong and Indonesian proceedings as HK$624,000.  Of that HK$284,667 has been paid to lawyers in Hong Kong.  The estimate of the wife’s cost going forward, which will cover the cost of the application concerning the validity of the marriage only are put at just under HK$1 million.  I have no doubt that the husband’s costs will be something similar.  I accept that the legal costs on both sides going forward will be very high.  But that on its own is not sufficient to make an order in the wife’s favour.

49.The law in England and Wales is developing quickly in this area and I intend to rely on the guidance provided by Currey v Currey in this respect, notwithstanding the fact that I was not referred to this case by counsel.  I will therefore adopt to the two-stage approach identified by Wilson LJ.

50.Am I satisfied that the wife can reasonably procure legal advice and representation otherwise than by the costs allowance proposed ?  The evidence on this point in tenuous.  Mr. Pilbrow said that the wife cannot take out a loan as she is too old.  She cannot utilize the matrimonial home in any way as it is presently held by the Republic of Indonesia and on the wife’s case P Indonesia is dormant.  It is the husband’s case that the wife does have other assets, including cash assets at her disposal.  I am particularly mindful of the fact that P Indonesia holds three properties.  Mr. Pilbrow said

“If it should be discovered that the wife actually has a business going on in Indonesia which is worth millions, I know that the business had two properties, one of which I’m informed by the son has been sold and the other one is also being sold, so that if the court finds that it is wrong at a later stage it can adjust later ……”

51.I agree with Mr. Pilbrow in so far as general living costs and medical costs are concerned.  I am of the view however, that the considerations for funding litigation are somewhat different.  I am also fully aware of the fact that the wife owns 75% of the shares in P Indonesia referred to above, which in turn hold three properties, one of which has been sold and the other is in the process of being sold.  During the hearing the husband put the value of the residential property at US$200,000.  In his Form E the husband puts the value of all three properties in Indonesia at just over HK$9 million.  These are assets, which if the wife chooses, should be available to fund the litigation going forward.  Indeed it was suggested that the sale of the first property was required in order to fund the ongoing litigation.  It was not clear which litigation the proceeds might be funding.

52.Indeed, there is no clear distinction between the wife’s litigation and the son’s litigation.  It all seems to serve the same purpose.  To what extent the wife is responsible for funding the present litigation and to what extent the sons are funding it, is not clear.  In these circumstances I am of the view that the wife probably does have the ability to procure legal advice notwithstanding her own personal circumstances.

53.Strictly speaking the analysis by the court should end here.  However I would like to add that it seems to me that the subject matter of these proceedings, in their widest possible context and the reasonableness of the wife’s stance, are also of particular relevance. For whatever reason it is the wife who initiated what some might consider to be hostile proceedings in Jakarta and she appears to have done so with the assistance of the parties sons.  It is the wife who transferred a 75% shareholding in P Indonesia into her sole name, using the fact that she was validly married to the husband as the basis for doing so. She also sought to transfer her present residential property into her sole name, notwithstanding the fact that the husband solely owned it at the time.  She says that she has a right to do so because the husband as an Indian national is not able to hold property in Indonesia.  She was not however obliged to take the steps she did.  She chose to take this action and must surely have considered the ramifications of doing so.  Should the wife now come to this court and say in effect that the husband must fund the costs of her litigation, which goes to the heart of all legal action taken by her to date i.e. the validity of the parties’ marriage ?  I think not. In making an initial overarching enquiry I satisfied that this would be wholly unreasonable.

54.Consequently, I will not make an order for a costs allowance.  I am satisfied that given the circumstances it would be wholly inappropriate and unjust to make such an order.

Does the husband have the ability to pay the sum ordered ?

55.I am satisfied on the evidence before me that the husband has the ability to pay maintenance pending suit in the total sum of US$3,000 per month.  On the face of it the husband is a wealthy man.  However, he has, as the wife rightly points out, divested himself of much of that wealth of late.  He admits to transferring 99% shareholding in S Ltd to A and the remaining 1% to K.  This company holds substantial property assets with an estimated book value of 50 million.  He has also transferred cash assets of just over US$1 million into the name of his daughters A and R and K.  These transfers are subject to the s. 17 application referred to at the beginning of this judgment.  As at May 2006, when the petition was issued, there was just over HK$9 million in the husband’s premier bank account with HSBC.  Many of the subsequent withdrawals, although explained by the husband are not accepted by the wife and no doubt much will be said about this and other matters in due course.  On the husband’s own evidence he had just over HK$800,000 in his bank accounts at the time of the filing of his Form E.  He also had admitted assets of HK$5.6 million.  On that basis I am satisfied that he has the means to pay the amount ordered on an interim basis.

Should the sum be backdated to the date of the petition ?

56.The wife asks that the maintenance be backdated to the date of her petition i.e. to May of last year.  The husband says that there should be no back dating pointing to the fact that there appears to be no urgency in the situation the parties having come before the court for a directions hearing in July of last year.  Given that the wife has not receiving any assistance with her living costs or medical expenses since April / June 2005, I will make an order that the sum of US$3,000 be backdated to May of last year.

Costs

57.I will reserve costs for argument until after the final determination of ancillary relief.

Mr. Pilbrow S.C instructed by Messrs Robertsons, for the Petitioner

Mr. Egerton, instructed by Messrs Howell & Co, for the Respondent