Cho Fok Bo Ying v. Cho Chi Biu

CACV000133/1990

BETWEEN

-------------------

Coram: Hon Sir Derek Cons, V-P, Kempster and Clough, JJA

Date of Hearing: 9 November 1990

Date of Judgment: 9 November 1990

------------------

JUDGMENT

------------------

Kempster, JA :

1. This is an appeal brought by a petitioning wife, pursuant to leave granted by HH Deputy Judge Gill, against that part of an order which he had made on 3 April and confirmed after review on 2 May last whereby paragraph 4 of an earlier order made by a judge of coordinate jurisdiction, by consent, on 20 January 1987 and requiring the respondent husband to pay to the petitioner $2,300 per month, was discharged, her judgment-summons dated 15 January 1990 dismissed and she was ordered to pay to the respondent the sum of $3,000 for costs. By her Amended Notice of Appeal the petitioner seeks the reinstatement of the consent order and, consequentially, of the judgment summons together with costs here and below. I should at once make plain that the marriage had been dissolved by decree made absolute on 21 November 1986.

2. The terms of the order of 20 January 1987, calculated to effect a clean break between the parties in matters of finance, expressly demonstrated an intention that the payments therein provided fell to be made in lieu of any other relief that might be afforded under the Ordinance and should ensure that the petitioner had a roof over her head. The respondent was required to pay to the petitioner HK$2,678 a month towards rent and management fees until 30 April 1988 and thereafter HK$2,300 a month towards her mortgage repayment instalments on a flat which she would purchase with the aid of lump sum payments totalling HK$62,500; also to be made by the respondent during April as a contribution towards the deposit and legal fees. The lump sum payments were duly made as, until January 1989 but subject to delays, were the monthly contributions stipulated.

3. On 15 January 1990 the petitioner issued her judgment-summons, which recites the purpose of the monthly payments, and on 2 February the respondent issued his summons to discharge the order insofar as it required him to contribute to the petitioner's mortgage repayments.

4. The petitioner acquired a property in Temple Street, Kowloon, at a price of HK$440,000 which was mortgaged to the Hongkong & Shanghai Bank in return for a loan. Repayments commenced on 6 December 1988. On or about 28 March 1989 the petitioner assigned the property to a purchaser for a consideration of $585,000 allowing the mortgage to be discharged. She says she did so on account of the respondent's failure to meet his obligations to her but this is questionable since he commenced to pay pursuant to the order on 10 June 1988; well before the petitioner's related outgoings.

5. As is apparent from the figures the petitioner made a capital profit which she puts at HK$145,000 or $60,000 if the monies expended on the premises sold are deducted. On 27 November 1989 she acquired a smaller property at a cost of HK$313,000. Her "profit" was used for deposit, costs, commission and decoration. The smaller property was also bought with the help of a loan from the Hongkong & Shanghai Bank; in this instance of $248,000 repayable by monthly instalments of $2,858. The petitioner claims to have moved into this property. She never lived in the Temple Street premises.

6. While the validity of the consent order was not challenged below nor before us and no party has moved to quash pursuant to Order 53 of the Rules of the Supreme Court I cannot accept, as did the Judge, that it binds the parties or that the respondent's liability to make periodic payments was dependent on the petitioner's coterminous liability under a mortgage. A fortiori under a particular mortgage of particular property. The order could do no more than give effect to section 4(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192) which reads : -

7. Subject to section 9 (1) and (2) (a) of the Ordinance there was no jurisdiction by consent or otherwise to subject the respondent's financial obligations to conditions or the monies received by the petitioner to trusts. There was jurisdiction only to limit their term. Hinde v Hinde (1953) 1WLR 175. As Lord Brandon explained in Jenkins v Livesey [1985] AC 424 at p 444 : -

Again, to quote Lord Reid in Essex Incorporated Congregational Church Union v Essex County Council (1963] AC 808 at p 820 : -

8. After considering the terms of the Matrimonial Proceedings and Property Ordinance above referred to, from which alone the jurisdiction of the Judge making the consent order here derived, I conclude that the directions as to appropriation of payments made under that order are unenforceable and void as constituting an excess of jurisdiction. No authority has been cited to us which suggests that we have power to sever one part of the order from another. The practice on judicial review suggests to the contrary. In my opinion, therefore, we are bound to find that the whole order was void for want of jurisdiction regardless of the attitude of the parties. Thus, for reasons other than those given by the Judge, his order cannot be impugned and the appeal must be dismissed. The effect of this finding may well be to permit the wife to make a fresh application but it is not for us to give legal advice; only to determine the issues presently before us.

Sir Derek Cons, V-P :

9. I agree with my Lord that the appeal must fail with the reasons he has given. I would only add that even if it were possible at law to sever the offending words in paragraph 4, reading the consent order as a whole, it seems to me that it would be impossible to do so on the facts.

Clough, JA :

10. I agree that the appeal should be dismissed. There is only one very minor and perhaps technical qualification I would like to add. That is that I would not wish to accept that the consent order, as it stands, is necessarily a complete nullity: see the dictum of Lord Diplock in Isaacs v Robertson [1985] AC 97 at p 102. However the point has not been explored and I bear in mind that the dictum in that case (which I cannot cite as the case is not here) relates to an order by a court of unlimited jurisdiction. In the present case it was a District Court judge who made the orders. It may well be that this is merely an arid technicality.

Representation:

Miss Selina Lau (M/s Wong, Hui & Co) for Petitioner/Respondent

Ms Jill Spruce (M/s Woo & Woo) for Respondent/Respondent