L v. C

FCMC 11799/1996

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11799 OF 1996

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BETWEEN

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Date of Hearing: 5^th November, 2012

Date of Handing Down Reasons for Decision: 8^th November, 2012

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REASONS FOR DECISION

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The Application

1.This is an application on the part of the Respondent (wife) for leave

(1) to enforce payment by the Petitioner (husband) of arrears due more than 12 months, in the total sum of $330,000 pursuant to section 12 of the Matrimonial Proceedings and Property Ordinance, Cap. 192; and

(2) to issue a judgment summons for the arrears.

The Background

2.The Petitioner petitioned for divorce in about 1996.

3.Upon granting of the decree nisi on 9^th April, 1998, the Petitioner was ordered to pay the Respondent a sum of $2,500 per month being the maintenance of the child of the family (the daughter) until her 18^th birthday or cessation of full time education whichever is the later.

4.The daughter was born in March, 1994. At the time of the decree nisi, she was about 4 years old and is now over 18. 

5.The Respondent says that the Petitioner defaulted his monthly payment as early as from the 2^nd month, i.e., as from 1^st May, 1998 onwards.  She did not receive a single cent since then.  Her summons was taken out on 21^st June, 2012 which means a lapse of about 14 years. 

6.According to Section 12(1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192, “A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun”.   

7.The periodical payment to the daughter in question is an order made by virtue of section 5(2).

8.Sub-section 2 of the same section states that “The court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment of the making of payment by instalments) as that court thinks proper, or may remit the payment of such arrears or of any part thereof.”

9.Further, section 4(4) of the Limitation Ordinance, Cap. 347 provides that “An action shall not be brought upon any judgment after the expiration of 12 years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of 6 years from the date on which the interest became due”.

10.Hence, with the combined effect of the above Section 4(4) of the Limitation Ordinance, Cap. 347 and Section 12 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, the Respondent is now seeking leave to enforce payment in arrears for 11 years, i.e., from 1^st June, 2000 to 1^st May, 2011 in the total sum of $330,000 ($2,500 x 12 months x 11 years).   She is also seeking interest and surcharge.  I am told that the interest runs up to $79,000.

The Legal Principles

11.The legal principles on how the court should exercise its discretion as to whether to grant leave or not have been clearly enunciated by Hon Hartmann J. (as he then was) in K v. K [2005] 1 HKC 303.  I only need to quote the relevant paragraphs as follows,

“9. S.12 gives statutory form to a long‑standing practice, one inherited from the ecclesiastical courts, that, as a general rule, arrears of maintenance are not to be enforced (by whatever means) if they have remained outstanding for more than 12 months : see, for example, Bernstein v. O’Neill [1989] 2 FLR 1 per Ewbank J.

10. As to the reason for the practice, in Russell v. Russell [1986] 1 FLR 465, Sir John Donaldson, Master of the Rolls, observed (at 473B) that :

“The philosophy underlying the rule must … have been that if the complainant waited a year to seek enforcement of the order, she did not need the money, or at least had managed well enough without it, and the husband might reasonably regard the liability as something which he could forget about.”

11. An applicant must therefore take reasonably timeous steps; that is, within a year, to assert his or her right to maintenance unless there is good reason otherwise.  An applicant cannot simply let the arrears accumulate, making do without them, until, with more than a year elapsed, perhaps an oppressively large capital debt has arisen.  Maintenance after all is invariably required for current needs and is an obligation which must be viewed within its social context.

12. Accordingly, in giving effect to s.12, our courts must proceed on the general principle that ‘stale arrears’, as Sir John Donaldson described them, are not to be enforced unless good reason is demonstrated or special circumstances are shown.

13. What will constitute a good reason or give rise to special circumstances will, of course, depend on the facts of each case.  No abstract rule can encompass all possibilities.

14. However, of relevance to the present case, there is authority that doing nothing for more than 12 months because the person liable to make payment is an irregular or reluctant payer will not constitute special circumstances : see Dickens v. Pattison [1985] FLR 610.”

The Respondent’s Evidence

12.Both the Petitioner and the Respondent give evidence in court.

13.The Respondent says that as soon as the Petitioner defaulted in May 1998 she repeatedly demanded payment but the Petitioner either refused or failed to pay.  She even contacted the Petitioner’s mother for assistance but all attempts failed.  She says that she exhausted all means by way of making numerous telephone calls to the Petitioner, his family members, friends and colleagues, but he still refused or failed to pay.  At that time, due to lack of money and legal knowledge and she did not speak Cantonese, she did not know how to enforce the maintenance order nor to seek legal advice.

14.The Respondent says that she, together with the daughter, returned to the mainland to stay with her parents in Hunan Province (湖南)in 1994.

15.Then in about 2001, the Respondent went to work in the United Kingdom, leaving the daughter being taken care of by her parents.

16.The daughter joined the Respondent in the United Kingdom in 2005 and has since then been remaining there until now.  It is not in dispute that she is studying full-time in London and is to go to a university in due course.

17.As for the Respondent, she returned to the mainland for good in 2011.

18.The Respondent explains that for the reason that she was out of Hong Kong during the material period, she was unable to enforce the maintenance order. She only managed to receive legal advice recently and was then in a position to chase the Petitioner for the arrears.

The Petitioner’s Evidence

19.The Petitioner’s case is that all along he has been staying in Hong Kong and he never changed his mobile and home telephone numbers.  The Respondent should have no difficulty in finding him.

20.He says that he made payments for about 4 months until September, 1998 when he was informed by the bank that the Respondent’s bank account had been closed.

21.It was not until 2005 that the Respondent first contacted him since the conclusion of the divorce proceedings in 1998.  The Respondent required him to go to court on 9^th March, 2005 to give his consent so that she might bring the daughter to the United Kingdom for education and to Australia for immigration.  The Petitioner adds that after the hearing, they talked for an hour and there was no mention by the Respondent on the arrears of maintenance.

22.Then in 2009, the Respondent called the Petitioner twice.  The first was for assistance in her clothing and shoe business and the other was on whether she could send the daughter to the Petitioner on summer holiday.  Again, the Respondent did not mention the arrears.

23.The Petitioner says whilst the Respondent left no means of contact for the Petitioner, the Respondent, on the other hand, had all his telephone numbers and was able to contact him.

Analysis

24.There are certain disputes of facts, for example, whether the Petitioner changed his telephone numbers and address and whether the Respondent closed her bank account with HSBC in about September, 1998 so that the Petitioner was not able to effect payment.  However, I do not think these are material.

25.The burden is on the Respondent to show that there is a good reason or there are special circumstances for the court to exercise its discretion in her favour.

26.After having heard her evidence, I do not find her evidence credible.  On the other hand, I find that the Petitioner’s version is closer to the truth.

27.According to the Respondent, she was in the mainland from 1999 to 2001 before she left for the United Kingdom.  She admits that during these years, she came to Hong Kong for about 2 to 4 times each year.

28.It is not dispute that she returned to Hong Kong from the United Kingdom in 2004 and 2005.  She admits that she had made call to the Petitioner’s mother while she was in Hong Kong in 2004, but she did not look for the Petitioner. 

29.As for the return in 2005, it seems to me clear that the trip was especially for obtaining leave from the court so that she might bring the daughter to the United Kingdom.  She admits that she served the application at the Petitioner’s residence by herself and the Petitioner did turn up in court.  She said that she had spoken to the Petitioner about the arrears before the court hearing.  I note from the court’s file that both parties appeared in the hearing of 9^th March, 2005. When being asked by me as to whether she had told the judge in the hearing that the Petitioner had defaulted in his maintenance payment for a substantial period of time, her answer is in the negative.  Her explanation is that the hearing lasted for a few minutes only.  The Respondent further tries to explain that she had made enquiries at the Court Registry and was informed that an application to enforce payment would last for about 8 months.  I have great doubts over what the Respondent says.  Even so, I do not think there is any reason why she did not mention this to the judge. 

30.On the evidence before me, it seems to me clear that throughout the years, the Respondent had no difficulty in finding the Petitioner and there were many opportunities when the Respondent could have taken proceedings but had not done so.

31.The Respondent was represented in the divorce proceedings.  If the Petitioner had defaulted shortly after the decree nisi, there was no reason why she did not go back to her solicitors for assistance.  Further, the Respondent testifies in court that she made enquiries at the Court Registry in 2005 and she processed the application for leave to remove the daughter by herself.  I do not accept that the Respondent did not know her legal right to enforce the maintenance order. 

32.Further, I do not accept that the Respondent did not have the financial means.  It is clear that she had the means of returning to Hong Kong and the means of sending the daughter to study in the United Kingdom.

33.Ms. Wong, in her submissions, argues for the Respondent that discretion should be exercised in her favour because the Petitioner constantly avoiding her calls and lying about his financial standing.   In her affirmation and also her evidence in court, the Respondent says that she met the Petitioner in court on 9^th March, 2005 and demanded for payment but the Petitioner’s reply was that his business was not good and he was poor.  In 2009, she contacted the Petitioner again and mentioned about the maintenance payment but the Petitioner said he was almost bankrupt.  His creditors were pursuing him and his life was in danger.  The Respondent says she had no reason not to believe him and she did not pursue the matter further.

34.I note the Respondent has set out in some lengths in her affirmations and again in court that she was maltreated by the Petitioner during the marriage, that the Petitioner never showed any interest in her well-being nor that of the daughter, that she was just like a widow, that she was treated like a servant, that she survived on instant noodles for over a month after the birth of the daughter and that she was forced, against her will, to leave home.  If what she deposed to were true, what little trust that she might have on the Petitioner would have long gone.  I wonder on what basis she would still believe in the Petitioner.

35.The delay in this case is inordinate and inexcusable.  The Respondent allowed the arrears to accumulate into an oppressively large sum.  On the evidence before me, the only inference I could draw is that the Respondent did not need the money, or at least had managed well enough without it.

Conclusion

36.For the above reasons, I do not find any good reasons or special circumstances for me to exercise my discretion in favour of the Respondent.  Her summons is hereby dismissed.

37.Costs should follow the event. There is an order nisi that the Respondent pays the Petitioner’s costs of this summons, with counsel’s certificate, to be taxed if not agreed.

Ms. Rachel Siu instructed by Messrs. Paul T.S. Lam & Co., for the Petitioner

Ms. Wong of Messrs. David Hui & Co., Solicitors for the Respondent