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)

Dates of Hearing :  10 and 11 March 2008

Date of Ruling : 26 March 2008

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RULING

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Introduction

1.There are a number of summonses before me that require determination. I have already dealt with each party’s respective applications for discovery and there will be a mutual exchange of documents on or before the 10 April 2008 in that regard. The husband has also applied to join T and M to these proceedings. They have been given leave to file an affirmation in reply to the husband’s on or before the 31 March 2008.

2.The case returns before me on the 14 April for an adjourned First Appointment hearing.  

3.In the meantime I am asked to make a ruling in relation to the following:

a)     Maintenance pending suit and the manner in which it is to be paid

b)    An amendment to the restraining order dated the 28 June 2007, if any

c)     A costs order in relation to the validity judgment and

d)    A ruling on the wife’s application for leave to commit the husband

4.At the hearing on the 11 March 2007 I gave the wife leave to file a short affirmation. This was in response to paragraph’s 20 – 23 of the husband’s 13th affirmation dated the 7 March 2007. I felt this was appropriate given the late filing of the husband’s 13^th affirmation and because it dealt with one specific point which needed further clarification, namely the legal effect of my ruling of the 28 February 2008 in Indonesia. I did not give the wife general leave to file a reply. I am afraid that this is exactly what was filed. It was also two days late. I intend to disregard most of it – which seems to me to be an attempt by the wife to reiterate her case and to do so after the event. This is unacceptable. Paragraphs 20 and 21 deals with the specific point in question, which I have read and taken into account.        

Maintenance pending suit and the manner in which it is to be paid

5.On the 11 March I ordered that US$22,750 be paid to the wife being the maintenance pending suit due and owing to her as at the 12 March 2008 out of monies held in court pursuant to the court order of the 16 October 2007.

6.This was a practical response to the difficulties highlighted by Mr Coleman. The husband’s case is that he is not the beneficial owner of the myriad of interconnecting companies identified during the course of these proceedings. Consequently it follows, says he, that he does not have the funds available to meet his obligations under the new maintenance pending suit order. Further he asks for monies from those held in court to pay his legal costs and expenses connected to his daughters wedding. Mr Coleman points out that although there has not as yet been a substantive hearing that my judgment presupposes that there will be a finding of non-disclosure by the husband. I accept this and although it seems to me that I am able to look at what Rayden refers to as the reality of the situation, that this may cause other practical difficulties in the short term. In particular I would not wish the wife to apply for a judgment summons, if the husband does not pay what has been ordered. This would also almost certainly detract from any attempts to settle during a Financial Dispute Resolution hearing (now scheduled for July).

7.It seems to me that it is necessary to contain the position, as far as I can, between now and July. In accordance with my judgment the wife seeks US$40,486.62 inclusive of interest, being the back payments due and owing under the order. I have not ordered that interest be paid and that will be deducted. Thus the sum of USD40,137.10 is presently outstanding. This sum will be paid out from the monies presently held in court. This shall be paid forthwith.

8.Going forward the wife’s monthly maintenance in the sum of USD22,750 will also be paid out of the monies held in court. The next payment will be made on the 12 April 2008. Thereafter USD22,750 will be paid as maintenance pending suit on the 12^th of each month, to the wife, out of this account.

9.I have, as I have said, read paragraphs 20 and 21 of the wife’s affirmation filed on the 20 March 2007. In any event, if maintenance payments are paid out of court, this will circumvent, pending further clarification, any concerns that the husband may have of aiding and abetting the wife.

10.In so far as the husband is concerned he seeks USD250,000 to pay his legal costs plus an additional sum to pay for his daughter’s wedding. Mr Pilbrow argues that the husband must be able to raise money against capital assets and points out that the husband appears to date to have paid a substantial amount in legal costs which must have come from somewhere. I have some sympathy with Mr Pilbrow’s submissions. However pending further clarification I will order that the husband be permitted to draw USD15,000 per month from the monies held in court as a contribution towards his legal costs. The first payment to be drawn down immediately and thereafter to be drawn down on the 12th of each month. This is the same amount that the wife will draw down. Just as I refused the wife’s application to backdate her claim for legal costs, I will likewise refuse the husband’s application. I will also make no order in relation to provision for costs to cover the daughter’s wedding. If the husband cannot afford to pay then he should not have offered to do so.

11.Thus going forward the sum of USD37,750 will be drawn down from the funds presently held in court on the 12^th day of each month. In making this order I am conscious of the fact that it is a practical response to the present situation. I have taken a broad brushed approach, the intention being to ensure that the matter proceeds expeditiously to FDR. The payments made out of court will be on the basis that any set offs can be made as appropriate after a final ancillary relief hearing when findings of fact will have been made, that is if common sense has not intervened in the meantime and the parties have not been able to reach some form of consensus going forward.      

An amendment to the restraining order dated the 28 June 2007

12.In view of the above I can see no reason to vary the restraining order, which will remain in force, in its present form. 

A costs order in relation to the validity judgement

13.In so far as the wife’s application for costs is concerned, it is agreed that costs shall follow the event. Mr Coleman rightly concedes this basic point. The arguments centre on the basis upon which the order should be made and whether the order should have immediate effect.

14.Mr Pilbrow argues that costs should be ordered on an indemnity basis. Mr Coleman argues that costs should be on a party and party basis and that the order should not be “forthwith”. In other words the costs should not be immediately taxed and should not be paid immediately. He also suggested that costs might be reserved for argument until after the FDR. Mr Pilbrow says that there should not be an order in relation to timing per se. 

15.Mr Pilbrow argues that the husband’s approach to the validity trial was in the main totally devoid of merit. He says that there was only one argument that had any substance and that was in relation to registration i.e. whether or not an Indonesian marriage had to be registered in order to be valid.  Many of the other points raised were, in his submission, a waste of time and costs were therefore unnecessarily incurred as a result.

16.Mr Coleman for his part acknowledged that this is very hostile litigation. However, he also points out that in order for the court to order indemnity costs there should be an unusual aspect to the litigation.

17.Immediately prior to the hearing on validity I expressed concern when the husband sought to introduce evidence by Indian experts at the 11^th hour. I said on that occasion that I would be robust in relation to costs if at the end of the day the introduction of the Indian evidence was found to be red herring. At paragraph 66 – 71 of my judgment of the 4 December 2007 I deal with this aspect of the case. In particular at paragraph 66 I say as follows:

In that respect it seems to be accepted by both parties that the provisions of the Hindu Marriage Act, 1955 do not apply to the parties’ marriage.  Notwithstanding that fact the husband argues that the divorce provisions found in the Hindu Marriage Act, 1955, in so far as it relates to customary divorce, should be applied here.  I am not clear on what basis he does so.

18.And again at paragraph 68 I make the following comments:

Thus it seems to me that the husband’s arguments in this respect are of no relevance to the application presently before me, as the parties are neither domiciled in India nor do they have permanent residence in India… 

19.The wife was obliged to find an expert willing to give evidence from India at a very late stage. I am of the view that the
husband’s stance in this regard was indefensible. The wife should therefore have her costs for that part of the proceedings on an indemnity basis.

20.I asked counsel how this might work from a practical perspective. I suspect that there may be difficulties in separating out this aspect of the case. For the avoidance of doubt however, the wife shall have all her costs connected to the husband’s stance, in his sixth affirmation, that the parties were divorced according to Sindhi Hindu customary rite in or about 1980. Such costs shall paid on an indemnity basis, to be taxed if not agreed.   

21.In so far as the remaining costs are concerned, although this is clearly very hostile litigation I do not believe that it warrants costs other than on the usual basis. Costs will therefore be paid on a party and party basis, to be taxed if not agreed.  I do not intend to make an order in relation to the timing or otherwise of this order. I am not persuaded that this matter should wait. The wife can proceed in the normal way.  

The wife’s application for leave to commit the husband

22.The wife seeks leave to commit the husband for contempt of court. In support of her application, made ex parte in chambers, she relies on the Amended Statement Pursuant to Order 52 Rule 2 (Rules of District Court) attached to the summons of the 31 January 2008. A previous statement was filed, dated the 3 December 2007 and reference to leave to commit was also made in the summons of the 28 November 2007. The wife also seeks to rely on her 7^th and 10 affirmations.

23.The wife complains that the husband is in breach of the mutual non-molestation undertaking given in court by both sides on the 31 October 2007. The wife’s submission centres on two things a) she says that the husband should be committed to prison for preventing her from returning to her home in Jakarta and b) he should be committed for filing a false report through his agent K. On the 13 July 2007 K filed a report with the Indonesian police making various allegations including that the wife had falsely said that she was legally married to the husband.

24.The difficulty with the wife’s case in so far as the first issue is concerned, is that on the 5 December 2007 I granted an order under the Domestic Violence Ordinance further restraining the husband and also ordering that the wife be permitted to enter in and remain in the parties former matrimonial home and that the husband be strictly enjoined and restrained from entering that premises. A penal notice was endorsed. This order was made on notice to the otherside, but without the husband having had an opportunity to file any evidence. The order was largely made on the basis of other evidence in affidavit form with exhibits attached including certain proxy letters, provided by Mr D. This was a holding order. In the event that matters had not settled down there would have been a full hearing with oral evidence being adduced in the normal way. It appears that the wife’s chief complaint namely that her home was being occupied by unknown men, was resolved following the granting of the order and that those men have since left.

25.Thus I cannot, it seems to me give leave to the wife to proceed on this basis, as the husband has since filed affirmations denying any involvement with the occupation of the property. If the men had been there at the husband’s bequest then he could be said to have purged that contempt in any event. I have also not had the opportunity to make any findings of fact, as there has not been a full hearing.

26.In so far as the second ground is concerned, K’s report was made to the Police prior to the undertaking on the 31 October 2007. I have since given my judgment in relation to validity. The husband is seeking leave to appeal. In the event that leave is not given, my judgment of the 4 December 2007 will stand. In the event that leave is given, the Court of Appeal will consider the matter further. In both instances pending further clarification, it seems to me that it would at best be inappropriate to give the wife leave to commit on this ground at this stage. The wife says that the husband can purge his contempt by ensuring that K files a report retracting the original report of the 13 July 2007. This seems to me to be premature at this stage of the proceedings. Thus leave to commit the husband is refused.       

27.In so far as costs of this hearing are concerned as neither party has fully won or lost their respective applications I will make an order nisi that there be no order as to costs, such order to be made absolute in 14 days time. There shall be certificate for counsel.

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