Lpk v. Sh also known as Hsc and Another
Read the full judgment text of FCMC 11930/2010 on BabelCite. This Family Court judgment before Deputy District Judge G. Own.
Matrimonial Causes – Interim Injunction – Anti-suit Injunction – Taiwan Properties – Whether to restrain disposal of properties and foreign proceedings – Balance of convenience – Submission to jurisdiction – Provisional Attachment. Court granted interim injunction restraining disposal of Hong Kong and Taiwan properties and anti-suit injunction restraining Husband and Father from taking steps in Civil Action in Taiwan. Held that there was no submission to Taiwan jurisdiction by obtaining Provisional Attachment and that Father and Husband were likely acting in concerted effort to defeat Wife's ancillary relief claims. Costs order nisi made against Respondents.
Legal issues: Continuation of Interim Injunction · Grant of Anti-suit Injunction · Submission to Jurisdiction
Outcome: Interim Injunction and Anti-suit Injunction granted; Costs order nisi made against Respondents.
Cites 2 cases
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FCMC 11930/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO.11930 of 2010 ________________________________ BETWEEN
________________________________ Coram: Before Deputy District Judge G. Own in Chambers Date of Hearing: 4th July 2011 Date of Handing Down Decision: 28th July 2011 ___________________________ REASONS FOR DECISION __________________________ Introduction 1.This is the Petitioner’s wife application for interim injunction against the 1st and 2nd Respondents in respect of the following 2 landed properties, namely,
2.The Summons for interim injunction was issued on 20th January 2011 which was adjourned for full argument with 2 hours reserved. It was fixed for today’s hearing. In light of the waiting time of 6 months, the Petitioner applied and successfully obtained from this Court an “interim interim injunction” on 1st April 2011 (“1st April Injunction”). 3.The 1st and 2nd Respondents are represented by Mr. Neil Clough (“Mr. Clough”) and Miss Pauline Leung (“Miss Leung”) respectively, both also appeared in the earlier interim interim injunction application. 4.The 2nd Respondent issued a Summons 4 days before this hearing seeking leave to file affidavit from an expert as to Taiwanese law with consequential directions for expert affidavit in reply. Having heard submissions from all parties, I dismissed this Summons with costs. Reasons for dismissal are handed down separately from these Reasons. 5.For the sake of convenience, I will refer to the Petitioner as the “Wife”, the 1st Respondent as the “Husband” and the 2nd Respondent as the “Father” in the following part of these Reasons. The injunctive reliefs 6.The Wife’s application for injunctive reliefs are two-fold, namely :
The Applicable Law 7.The leading case law on Anti-suit injunctions is the Privy Council decision in Societe Nationale Industrielle Aerospatiale –v- Lee Kui Jak [1987] 1 AC 871 which sets out four fundamental principles :-
The parties’ affirmations 8.The parties have filed the following affirmations for the present application, namely :-
9.Further, the parties have filed the following as expert evidence on Taiwanese law, namely :-
10.Since the Father’s Summons dated 29th June 2011 seeking leave to adduce further expert evidence of Mr. Cai was dismissed, I have not considered any of the matters stated in the draft affirmation of Mr. Cai exhibited to the supporting affirmation to the said Summons. I am entitled to consider those expert evidence properly filed before this Court. Counsel for the Father, however, had referred to various paragraphs of Mr. Cai’s Affirmation in her skeleton submissions. The Husband’s position 11.Mr. Clough submitted that when the Taiwan Court is dealing with a dispute over Taiwan property, that proceedings are not a sham. There was no such evidence either adduced by the Wife. 12.The Civil Action in Taiwan against the Husband was for a declaration on ownership of the Taiwan properties. There is no application to vary or transfer the existing rights or change the ownership. 13.It is inappropriate for the Wife to restrain the Father, who being a Taiwan citizen and not a party to the marriage, from exercising his rights under Taiwan law to determine ownership of the Taiwan properties. The Father commenced the Civil Action only when he came to know that the Taiwan properties were being claimed by the Wife. The Husband, being the Defendant in the Civil Action, adopted a ‘neutral’ position. It would likewise be inappropriate for this Court to purport to restrain a Defendant from taking steps in proceedings against him. The Father’s position 14.Miss Leung first submitted that the Father is entitled to start the Civil Action in Taiwan. Such proceedings are neither vexatious nor oppressive. 15.Application for injunction will be refused if the grant of relief would cause injustice to the injunction defendant that would outweigh the injustice to the injunction claimant. 16.By obtaining the Provisional Attachment over the Taiwan properties, the Wife had submitted herself to the Taiwanese jurisdiction in so far as the Taiwan properties are concerned. Thus it would be vexatious and oppressive for the Wife to restrain the Father to proceed with the Civil Action in Taiwan which also relate to the Taiwan properties. 17.As the Wife had conceded that it was the Father who paid off the outstanding mortgage of the Taiwan properties back in August 2006, the Father’s case in respect of the Civil Action is not mere allegation and there are serious issues to be tried by the Taiwan Court. 18.Miss Leung then referred to the legal opinion at paragraph 4 of Mr. Cai’s draft Affirmation that the Provisional Attachment, having been made pursuant to Article 522 and 523 of the Civil Law, the Taiwanese Court must have been satisfied that there would be risk of non-enforcement or difficulty in enforcing the debt. Thus, the Wife’s interest over the Taiwan properties had been secured. 19.Again referring to the legal opinion of at paragraph 7 of Mr. Cai’s draft Affirmation that the Wife could not, after having obtained the Provisional Attachment, seek to prevent Husband from disposing of the Taiwan properties and at the same time restraining the Father to declare his interest in the Taiwan properties. 20.Further referring to the legal opinion paragraph 8 of Mr. Cai’s draft Affirmation, Miss Leung submitted that the Father could not join in or intervene the Provisional Attachment by virtue of Article 58 of the Civil Law. The Father had no alternative but to commence the Civil Action to protect his interest over the Taiwan properties. 21.The Civil Action commenced by the Father is not a kind of parallel proceedings where the opposite party to the proceedings initiated another set of proceedings in a foreign court asking for the same relief. As such, the Court should exercise caution in deciding whether or not to grant the injunction. 22.Anti-suit injunctions in general will not be granted where to do so would be inconsistent with due respect for comity. The right to litigate is a basic human right in Taiwan. For this Court to restrain the Father from proceeding with the Civil Action, it would not only offend principles of comity and would also intervene the Father’s basic human right to litigate. 23.The fact that the Husband had now conceded the forum to determine the divorce suit is Hong Kong does not, as a matter of course, mean that the Father should be restrained from proceeding the Civil Action in Taiwan. The properties in dispute are in Taiwan and thus it is not appropriate to grant anti-suit injunction against the Father. Discussion
24.First, I will deal with the Interim Injunction. This is in effect a continuation of the interim interim injunction granted on 1st April 2011. In my earlier Reasons for Decision dated 1st April 2011 for granting the interim interim injunction, I have set out my preliminary findings and observations based upon the facts of the case which I do not intend to repeat here. 25.Since the interim interim injunction was granted, there have been no material change in circumstances which displace my earlier findings and observations nor had there been any challenge made to my findings and observations on appeal or otherwise. The only change that had occurred is that the hearing of the Father’s Civil Action in Taiwan initially fixed for 14th April 2011 had, probably due to the interim interim injunction of 1st April 2011 granted by this Court, been adjourned but without a date being fixed. 26.Having heard submissions from all parties, I am satisfied that there being no material change in circumstances which warrant the discharge or uplift of the interim interim injunction dated 1st April 2011. I am satisfied that on the facts available the continuation of the interim interim injunction under Section 17 of the Matrimonial Proceedings and Property Ordinance, Cap.192 is needed. I will therefore grant the Interim Injunction on the same terms as the interim interim injunction dated 1st April 2011 until final determination of the Wife’s ancillary relief claims or further order.
27.For the Anti-suit Injunction, I agree with Counsel Miss Leung that the consideration which the Court has to take into account is materially different from that of a Hemain or other type of injunction generally or based upon where the balance of convenience lies. 28.As decided in the Societe Aerospatiale case (supra), anti-suit injunction is an equitable discretionary remedy, it will be granted only if the ends of justice so require. It is the Court’s duty to ensure not only the rights of the injunction applicant should be protected but the rights of the injunction defendant not be infringed. This in essence is a balancing exercise having had to regard to all the relevant surrounding circumstances and decided on a case to case basis. 29.In the present case, I find the balance tips in favour of the Petitioner. 30.The father and son relationship appeared as opposite parties to the Civil Action in Taiwan poses a high tendency or propensity for them to act in concerted effort, even if this is not a fact established by inference or otherwise, to defeat the Wife’s legitimate rights on ancillary reliefs in these proceedings. The subject matter of the Civil Action being the matrimonial home (i.e. Taiwan properties) which is a valuable asset worth around HK$24 to HK$25.5 million in value forming the bulk of the family assets. 31.Although I agree the proceedings taken by the Father in the Civil Action cannot be said to be vexatious or oppressive, it is noteworthy that the concept of vexation or oppression should not be restricted by definition. In the Societe Aerospatiale case (supra) where Lord Goff said at page 893E to G :
32.Bearing in mind notions of vexation and oppression are not to be restrictively defined, it follows that the Court may have to consider a wider perspective rather than simply looking at episodes of any regime. This perhaps help to explain why Lord Goff and Bowen L.J. used those words “basic principle of justice” and “prevent administration of justice being perverted” in their judgments. The ultimate question is, as I see it, where the justice lies ? 33.In the legal opinion of Lai Su Lin (for Husband) at page 517 of the Bundle, it refers to :
34.In the legal opinion of LYS (for Father) at page 251-2 of the Bundle, it refers to :
35.In the Writ issued by the Father at page 256-1 of the Bundle, it refers to :
36.In the Prayer of the Writ at the same page 256-1 of the Bundle, it refers to :
37.Taking all these conjunctively and; in particular, the Writ issued by the Father, it is plain and obvious that the Civil Action taken out by the Father also aimed at transfer of ownership of the Taiwan properties against the Son (i.e. Husband). The legal opinion on the part of the Husband considered it only to be determination of ownership. In a later Affirmation of LYS (for Father) at page 302 of the Bundle, the expert confirmed the legal advice he gave to the Father earlier. 38.The fact that the Husband so far adopted a “neutral” stance in the Civil Action coupled with the fact that the Husband did at one stage attempt to remove the Provisional Attachment over the Taiwan properties supported my observation that it is more likely than not that there are concerted effort between the Father and the Husband. I agree with Counsel Miss Remedios this is comparable to the 2 brothers in the case of Chan Kin Yuen v. Chan Kin Yip, HCA No.17878/1999. 39.Thus, I believe this Court should not simply consider the Father’s Civil Action in isolation as being non-vexatious and non-oppressive in deciding whether or not to grant the anti-suit injunction. 40.I now turn to other aspects of contention. The contention that the Wife could, under Article 58 of the Taiwan Civil Law, join in/intervene in the Civil Action and have her rights protected. This was stated in the legal opinion on the part of the Father (at page 307 of the Bundle paragraph 3) and also on the part of the Husband (at pages 517 – 518 of the Bundle at paragraph (C)). However, the legal opinion on the part of the Wife (at page 618 of the Bundle at paragraph 4) suggested otherwise. 41.I accept the legal opinion on the part of the Wife. Article 58 of the Taiwan Civil Law provides, inter alia, that :
42.The words “for the purpose of supporting one of them” provide a key and necessary condition for invoking Article 58. The Wife in claiming her personal beneficial interest over the Taiwan properties would definitely neither support the Father nor the Husband in the Civil Action between the 2 of them for obvious reasons. Hence it will be wrong to say that the Wife’s interest could be protected by relying upon Article 58 to intervene in the Civil Action. In fact it is quite the converse of the situation that the Wife’s interest over the Taiwan properties, unless properly protected by this Court, would be jeopardized if the Father and the Husband is to proceed with the Civil Action in Taiwan. 43.Although the Husband as the Defendant in the Civil Action had a minimal role to play, the fact remain is that he did apply on 6th January 2011 to the Taiwan Taipei District Court and obtained an order to compel the Wife to proceed with her divorce suit in Taiwan within 7 days (at page 500 of the Bundle at paragraph 10); failing which, he may under the relevant procedure to apply to uplift the Provisional Attachment over the Taiwan properties. If the Husband’s stance in the Civil Action remain to be ‘neutral’ as Mr. Clough had submitted, it is rare, if not unusual, for the Husband to take out such application with intent to remove the Provisional Attachment. The Husband’s application further support my earlier findings that the Father and the Husband are likely to be acting in concerted effort with intent to defeat Wife’s ancillary relief claims. 44.On the question whether the Wife had submitted herself to the Taiwanese jurisdiction when she obtained the Provisional Attachment over Taiwan properties, the legal opinion on the part of the Husband (at pages 515 – 516 of the Bundle) states, inter alia :
45.The legal opinion on the part of the Wife (at pages 616 – 617 of the Bundle) states, inter alia :
46.It is clear from the Husband’s legal opinion that the provisional seizure system (which is referring to the Provisional Attachment) is to temporarily freeze assets to ensure rights of parties and which will not have any impact on the outcome of litigation. The Wife’s legal opinion went further to suggest that it is a procedure whereby the principal action not yet initiated. 47.With respect, I do not agree with Counsel Miss Leung that the Wife had submitted to the Taiwanese Jurisdiction by obtaining the Provisional Attachment. Quoting the decision of Deputy High Court Judge Reyes (as he then was) in the case of Hwoo Huang Linda –v- Fu Being San & others (HCA 4888/2001) at paragraph 26 :
48.Although his Lordship in the Hwoo’s case formulated the guidelines in the context of submission to Hong Kong jurisdiction, I am prepared to find those guidelines also applicable in determining whether there was submission to Taiwan jurisdiction. In light of the legal opinions on Taiwanese law from the Husband and the Wife on the topic of Provisional Attachment, I find there was no submission to the Taiwan jurisdiction by the Wife. The Provisional Attachment is, in my view, a step to preserve the status quo rather than a main action to pursue a substantive claim. 49.The fact that the Provisional Attachment procedure allows the person to whom the attachment is made against to apply to the Court to compel the applicant for the Provisional Attachment to initiate action within a prescribed time dictates the fact that the main action has yet to be commenced. Thus it is incorrect to say that the main action had been commenced when the Provisional Attachment was obtained and the applicant had already submitted to jurisdiction. 50.Counsel for the Father further submitted that in the absence of satisfactory expert evidence of foreign law, this Court should apply Hong Kong law to consider the effect of the Provisional Attachment akin to Mareva injunction. With respect, I do not agree with Counsel. It is not correct to say there are no satisfactory expert evidence before this Court on foreign law. The truth is that there is. Parties have already filed their respective expert legal opinion on Taiwanese law. The fact is that the legal opinion filed on the part of the Father had not covered all the topics. This may be the reason for the Father to seek leave to adduce further supplemental expert evidence at a very late stage. Nonetheless, there are legal opinion from experts for the Husband and the Wife which I am entitled to consider and rely upon to determine the effect of the Provisional Attachment in the context of Taiwanese law. 51.The other contention that the Father had paid off the mortgage of the Taiwan properties and there being serious issues to be tried should not be a bar to grant anti-suit injunction if the ends of justice so require. 52.It is also submitted that, so far as the Father is concerned, he is not the other party to the marriage and not taking parallel proceedings for the same relief against the Wife, the Court should exercise caution in granting injunction. Again, where justice lies is the main concern rather than the status of the party against whom the injunction is sought. 53.Furthermore, I have also given thoughts to the proceedings taken by the Father and the Husband in Taiwan in the context of their exercise of rights and protection of interest. I was also invited to consider the principle of comity with respect to the foreign court’s policies and processes. 54.As stated in the Societe Aerospatiale case (supra), the anti-suit injunctions are directed against the parties individually rather than against the foreign courts. It does not offend principles of comity as it is directed towards the Husband and Father individually rather than the Taiwan Court. It should also not be considered as any intrusion or intervention of basic human rights which Counsel Miss Leung had so described in her skeleton submissions. 55.Based on all the above, I decided to grant the Anti-suit Injunction in the Wife’s favour against the Husband and the Father. I will also make a costs order nisi that the Wife shall have her costs of the Summons dated 20th January 2011 including all costs reserved to be paid by the 1st and 2nd Respondents, to be taxed if not agreed. There be also Certificates for Counsels. Such costs order nisi shall become absolute within 14 days from today. Orders (1)The Father and the Husband whether by himself, his servants or agents or otherwise be restrained from charging, dealing, transferring or otherwise disposing of the following landed properties until further Order, namely :
(2)The Father and the Husband whether by himself, his servants or agents or otherwise be restrained until further Order from taking further steps in the Civil Action in Taiwan in respect of the Taiwan properties, and/or any other action affecting the ownership or possession of the Taiwan properties, including any appeal against the restraint order granted in Taiwan on 17th November 2010 and/or the decision of the Taiwan Court refusing an application for transfer of ownership of the Taiwan properties; (3)The Wife do have the costs of the Summons dated 20th January 2011 including all costs reserved, to be taxed if not agreed, and be paid by the Father and the Husband in equal shares; (4)There be Certificates for Counsels.
Representation : Miss Corinne Remedios instructed by Messrs. Iu, Lai & Li, Solicitors for the Petitioner Mr. Neil Clough instructed by Messrs. Li, Chow & Co., Solicitors for the 1st Respondent Miss Pauline Leung instructed by Messrs. Chiu, Szeto & Cheng, Solicitors for the 2nd Respondent | |||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 11930/2010