Lal v. Jaw
Read the full judgment text of FCMC 5389/2007 on BabelCite. This Family Court judgment before Deputy District Judge Carlson.
Matrimonial causes – judgment summons – full and frank disclosure – ex-parte application – debt transfer – release of liability – costs – Petitioner wife sought to enforce divorce order requiring Respondent husband to pay USD 825,000 via funds held by Mr Nayar – Husband applied to set aside summons alleging non-disclosure of correspondence showing wife agreed to look to Nayar directly – Court held material non-disclosure occurred at ex-parte stage; order to issue summons set aside – On merits, tripartite agreement extinguished husband's liability – Costs awarded on party and party basis.
Legal issues: Full and frank disclosure at ex-parte stage · Whether a debt is owing by the husband
Outcome: Judgment summons set aside for want of full and frank disclosure. On merits, husband found not indebted.
Cites 2 cases
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FCMC 5389 / 2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 5389 OF 2007 ----------------------------
----------------------- J U D G M E N T ----------------------- Introduction 1.Although the parties are no longer married I will, as a matter of convenience, continue to refer to them as the husband and the wife. This is the hearing of a judgment summons taken out by the wife dated the 9th September 2011 [A1/1-2] in which she alleges that the husband is in default of an order dated 8th September 2008 by which he is, inter alia, required to pay her HK$6,600,498, its USD equivalent being USD825,000 which is the amount and currency referred to in the Order. How all of this comes about will become clear shortly when I set out the factual background. The husband’s response to the summons is to have it set aside for want of full and frank disclosure in obtaining ex-parte leave to issue the judgment summons in the first instance, failing which he says that he owes the wife no debt, the obligation to pay her USD825,000 having been assumed, with her informed consent, by a Mr Kishore Nayar. And so, there are two grounds of opposition, one on an important procedural requirement which enjoins all ex-parte applicants to fully and frankly set out the material background to the relief that is sought and the second, an answer based on the merits of the dispute namely, that there is no debt owing by the husband and therefore the judgment summons must, in effect, fail in limine. The husband’s summons to achieve this is dated the 4th July 2012 [A1/4]. 2.What I propose to do is to begin by setting out so much of the factual background as will enable me to decide the first issue which is whether the judgment summons ought to be struck out for want of full and frank disclosure at the ex-parte stage. Whatever the outcome of that issue I will, in the event of an appeal, proceed to deal with the dispute on its merits and decide whether any debt is now owing by the husband or whether that liability has been transferred to and assumed by Mr Nayar. This enquiry will require a more detailed investigation of the evidence which I propose to embark upon at that stage. How the indebtedness is said to arise – The Court Orders 3.Following the parties divorce, Judge K W Wong made an order by consent dated the 8th September 2008. Unsurprisingly, because it was the result of prolonged and detailed negotiations between the parties and their solicitors as to the property and financial aspects of their divorce, the parties agreement as recorded in the order is lengthy and comprehensive. The order is at A1/36-63, some 27 pages of it. It is preceded by numerous recitals. Those that are relevant for these purposes are F, G and H. The parties had agreed upon a sum of USD825,000 which the husband was to pay to the wife. The manner by which this was to be achieved is set out in those three recitals. Given their importance I will set them out in full :
The relevant part of this order is paragraph 2 which is in these terms :
4.The principal part in this saga, for this is what it has become, is that of Mr Nayar whose crucial involvement I will need to explain presently. He is referred to in recital G and H above and he is again referred to in the second order of Judge K W WONG also made by consent and also dated the 8th September 2008. This order is much shorter and I will set out its material parts in full :
5.The other relevant order is one made by Judge Chu on the 3rd December 2007. I also ought to set out its material parts. The order itself is at A1/10-11 :
It is reasonably clear on its face that the effect of this order was to preserve the then status quo with regard to a company called Global Sage Alliance and any other company in which the wife was a director or held any interest and, more importantly, that any investments that they held with Mr Nayar were not, without agreement or order of the court, to be removed from him. 6.Mr Nayar should now be brought onto the stage so that how all of this problem comes about can be explained. 7.The husband, the wife and their children were neighbours of Mr Nayar, his wife and their children at Discovery Bay. As time passed they became very good friends. Mr Nayar, who at the start of the friendship was doing something else, decided that he had the necessary expertise and aptitude to make much more money for himself if he turned to investing on his own account in the money and stock markets. Now, of course we all know that the world’s financial markets collapsed in the autumn of 2008 which threatened to bring down the world economy. Two substantial institutions, Lehmann Brothers and Bear Stearns were amongst the early casualties. Initially, Mr Nayar was extremely successful in his investing in the years running up to 2008. The more money he could get his hands on the larger the profits that he could achieve. So impressed was the husband with Mr Nayar’s successes that he became interested in attaching himself to Mr Nayar’s investment activities. As Mr Nayar was not a licensed broker or dealer he could only invest on his own behalf. This being so the only way by which Mr Nayar could operate with third parties was by borrowing money from them which he would invest and the profits of those investments would be used to repay the money borrowed from a third party like the husband at extremely attractive rates of interest, in this case 30%. Because the funds were borrowed by Mr Nayar these became his funds and the investments made were his investments. The lender of the money only had the right to repayment of the amount lent to Mr Nayar at the agreed time for repayment together with the additional agreed interest. Such were Mr Nayar’s early successes using the husband’s money that the wife decided that she too ought to lend Mr Nayar some of her own money at the attractive rate of interest that he was offering. And this is what happened until the big crash of late 2008 at which point Mr Nayar could no longer repay his loans and interest payments to the husband, the wife nor to anybody else. The documentary evidence in the hearing bundles shows that Mr Nayar, who is now out of funds would prepare client accounts showing the amounts of the loans and the repayment terms including time for repayment, notice provisions and agreed interest, was anxious to persuade the parties, especially the wife with whom he became principally concerned to postpone repayment otherwise he would not be in a position to pay anything at all. It is clear to me having heard Mr Nayar give evidence by video-link from the safe haven of India, his home country, that he had been cleaned out by the global collapse and that he hoped, given time by his creditors, to trade himself back to profitability so that he could, at least, start to make some repayment of what he owed. Wisely for him, in the event, he left Hong Kong initially for Singapore and he now resides in India where as I understood his evidence he continues to try to get himself back onto some sort of even keel. Whether this will be possible remains to be seem. 8.It is this catastrophe which has meant that the wife has not been able to receive the USD825,000 from Mr Nayar let alone other funds which may also be due to her. 9.The essential point that needs to be understood is that when the parties entered into the consent orders of the 8th September 2008, and on the face of the first Order by which the husband was directed to pay the wife the lump sum of USD825,000, they both knew and understood that this amount was to come from monies lent to Mr Nayar, on this occasion by the husband which Mr Nayar was expected to repay him in order that he might comply with the order. At that stage therefore the husband was the party against whom lay the obligation to pay this substantial amount to the wife. 10.The second order of the 8th September confirms that this was so because it established the mechanism by which this money was to make its way to her. Mr Nayar was instructed by both parties to pay the amount held by him to the credit of two Sage Group companies which were owned by the husband and the wife through which the funds had been lent to Mr Nayar. He was to pay Messrs Haldanes, the husband’s then solicitors, who would be instructed to pay the lump sum payment of USD825,000 to the wife. 11.The timing was very unfortunate because it is clear from the evidence that Mr Nayar was beginning to wobble financially as the global crisis began to take hold. What happened thereafter, as evidenced by a series of e-mail communications, is that in due course the wife agreed to look to Mr Nayar direct for payment. There is cogent evidence that this is so. She disagrees that this is the effect of this correspondence and says that even if this is the case it was brought about by the husband and Mr Nayar putting their heads together to persuade that to accept such a situation knowing full well that Mr Nayar’s financial circumstances were such that she was most unlikely to get anything, whilst at the same time releasing the husband from his liability under the first order of the 8th September. 12.The husband’s case is that her’s had been a deliberate, informed decision. She was represented by experienced solicitors and she had advice from a Mr Andrew Sherry, a family friend whose general experience was looked to by the wife. She sought his advice and was persuaded in the circumstances that she should look to Mr Nayar for payment. The ex-parte application for a Judgment summons 13.At this stage I have not descended into the detail of how this had proceeded through the e-mail exchanges. Nevertheless, suffice to say that these e-mails and the other documents that are in the court’s hearing bundles present a very genuine arguable dispute between the parties as to whether or not the husband’s interpretation of the outcome is the correct one. In this regard what was disclosed to the ex-parte judge is crucial as to whether this was sufficient to pass muster as full and frank disclosure on an ex-parte application for the bringing of coercive, indeed committal proceedings which might lead to the fining or even imprisonment of the judgment debtor. 14.What the evidence discloses is a genuine and arguable case on the part of the husband that the wife had agreed not to pursue him for the USD825,000 but would now only look to Mr Nayar for payment. Whether that argument is ultimately successful must await the second part of this judgment. At this stage, all that needs to be shown is a genuine, by which I mean a properly arguable case for saying that the husband had been released by the wife from the obligation to pay her the USD825,000. 15.That such a properly arguable case exists clearly emerges from a consideration of all these e-mails and other documents that have been put into evidence before me. I now need to examine what was actually put before the ex-parte judge. Once this evidence is examined I will be able to decide whether there has been a material failure to present a fair picture to the ex-parte judge for him to decide whether or not to allow the judgment summons to issue. What was put before the exparte Judge 16.The wife’s affidavit in support of the judgment summons is that filed on the 2nd August 2011 together with a second corrective affidavit filed on the 19th August 2011 which added nothing to what I am now considering. I will therefore concentrate on the affidavit of the 2nd August. 17.This affidavit, as is the form when asking in for leave to issue such process, sets out the orders that are relied on which establish the judgment debtor’s obligation to pay the, in this case, lump sum which is the judgment debt sought to be enforced. 18.The orders are exhibited to the affidavit and particular attention is drawn to aspects of them. A summary of their effect is set out at paragraphs 10 and 11 of the affidavit. 19.Paragraph 12 is under the sub-heading “Respondent fails to pay, USD825,000”. It baldly sets out the proposition that the wife has not received the amount in the order either from husband or from Mr Nayar. 20.Based on this and taken at face value, the exparte judge seeing that the debt was outstanding and that no excuse or reason for non-payment was apparent gave leave for the judgment summons to issue. 21.The full picture of what had gone on since these orders were made in September 2008 in terms of e-mail exchanges and other documents had not been placed before the judge. This documentation has now being revealed, and was available and in the wife’s possession at the time that the exparte application was made, as exhibits to a number of the husband’s affidavits prepared for this hearing. As a matter of convenience these e-mails and documents have been extracted and helpfully placed in bundle B3 labelled “Aide-Memoire”. It would unnecessarily burden the judgment to attempt even a summary of each of these e-mails. There can be no substitute for a careful reading of all of them which I have done and to which detailed reference has been made in the course of the evidence called before me. 22.The conclusion that I have arrived at is that, as I have already observed, they revealed a very genuine dispute as to whether the wife had advisedly decided to turn away from the arrangements set out in the two September 2008 orders of Judge K W Wong and decided to look to Mr Nayar as the individual responsible for paying out to her. Had the exparte judge been provided with all of this documentation it seems to me that he would have taken a different view of this matter. Other options would have been open to him. He might have dismissed the application for the judgment summons outright; he might have listed the application for an inter partes hearing to decide what he ought to do given the contents of the documents in B3, after which he might have adjourned the application to issue a judgment summons generally and decided instead that a summons be issued to decide whether a debt still existed between husband and wife, which is the issue that the second part of this judgment will be concerned with. Nevertheless, by virtue of an incomplete and therefore slanted presentation of the facts the judge felt compelled to do what any judge to whom an application to issue a judgment summons would have done which is to accede to the application on the material placed before him. The law on ex-parte applications 23.The law on this is perfectly clear. [see Hong Kong Civil Procedure 2013 page 650 29/1/51]. “On any exparte application the applicant must proceed with the utmost good faith …… The fact that the court is asked to grant relief without the person against whom the relief is sought having the opportunity to be heard makes it imperative that the applicant should make full and frank disclosure of all the material facts … … where the applicant fail to make full and frank disclosure the orders may be set aside without regard to the merits. ” . 24.These remarks and what follows in this note to Order 29r1 of the RHC relate to applications for ex-parte interlocutory injunctions but there is no doubt that they apply with, I venture to think, even greater force when an application is made to the court to issue proceedings which seek the committal of a person who will stand as the respondent to the process applied for. 25.I find that there has been material non-disclosure of the highest order. Nevertheless, I also consider that this has not been deliberate in the sense of amounting to cheating or being knowingly underhand. No possible blame can attach to the wife’s solicitors, they having presented the application for the issue of a judgment summons on what they had been provided by her. I am also satisfied that the wife in this case, not having knowledge of such things did not appreciate the significance of the requirement to disclose everything that was material and indeed at this time may not have had all the documents at hand although they were available to her as she had been either the sender of many of the e-mails and also the recipient of the rest of them. 26.This being so, there is no doubt that in exercising my discretion as to whether to set aside the order giving leave to issue the judgment summons I am required to consider factors which include :
[see Hong Kong Civil Procedure 2013 page 651] 27.I have had regard to all of these considerations. It seems to me that had the judge been favoured with full disclosure he would not have given leave to issue the judgment summons. Notwithstanding my finding that non-disclosure was not deliberately underhand, I regard it as of great importance in matters that affect the liberty of the individual that full compliance ought to be insisted upon and for these reasons I propose to exercise my discretion in favour of Mr Clough’s submission that the order giving leave to issue the judgment summons should be set aside, with the effect that the application for the orders sought by the wife under summons must fail in limine. The applications under the judgment summons must therefore stand dismissed with costs to be taxed on a party and party basis. I do not consider it appropriate to have a taxation on an indemnity basis because I have found that non-disclosure was not motivated by any mischievous or dishonest purpose. This costs order will be an order nisi. Is a debt owing by the husband? 28.For the sake of completeness and in the event that the judgment has to be considered in another court I am also going to deal with this issue on its merits. This will require a more detailed consideration of the contents of bundle B3. 29.Mr Clough has submitted that in the event of his failing on the issue of full and frank disclosure he will still be able to succeed by showing that the husband owes the wife nothing because his liability was transferred to Mr Nayar. If this is correct then the judgment summons would fall to be dismissed on this ground as well. 30.The whole basis of the husband’s case calls for a close consideration of the e-mails in bundle B3 as a whole which provide the history of this matter from before the making of the September 2008 orders up to January 2011. What I propose to do is to set out the material parts of the e-mails which Mr Clough says have had the effect of transferring the husband’s liability from himself to Mr Nayar and then to examine, having regard to Mrs Campbell-Moffatt’s submissions to the contrary, whether that is so. 31.Whilst it may seen to be selective to only reproduce a limited amount of the e-mail exchanges in the judgment, it should be understood that such recitations of this limited material has been done on the basis that everything in bundle B3 has been considered. What this correspondence demonstrates is that as of 27th September 2008, three weeks after the 8th September orders, the wife had been expecting payment no later than the 27th October 2008, she having given Mr Nayar notice to pay her [B3/12]. At this stage there is nothing to suggest that the husband had divested himself of any primary liability under the orders. By the 22nd October 2008 [B3/13-14] Mr Nayar was clearly in difficulties and was saying that he was not going to be able to pay out the USD825,000, although he was going to be able to pay the wife USD400,000 which was money that he owed her on loans made by her to him. This he paid by cheque dated 30th October 2008 [B3/17]. By the 19th January 2009 Mr Nayar’s position was dire [see B3/18]. This e-mail was in fact the only document which had been produced to the ex-parte judge. What the e-mail said was that he was going to have to freeze payment for at least two years whilst he waited for the markets to recover. Then in the third paragraph what one sees in my view is a crucial part of this e-mail where he states that the funds owing to the husband in account with him (from which the USD825,000 would be paid by the husband to the wife) would be transferred to the wife so that in respect of these funds Mr Nayar was now indebted to her and not to the husband. Her reaction at B3/20 is to leave things as they are in order to remain in compliance with the court orders. And so, at this stage the situation remained as it had been under the September 2008 orders. 32.On the 29th January 2009 [B3/22] Mr Nayar says, for the reasons he gives in this e-mail, that it would be better to transfer the funds from the husband’s account to her’s in order to safeguard her position. At B3/23 the husband’s e-mail of 6th February 2009 repeats to the wife the advice given to her by Mr Nayar so that Mr Nayar will now be her debtor on funds at that stage owed by him to the husband. 33.On the 1st June 2009 [B3/29] the wife wrote to Mr Nayar. It is clear from this e-mail that she knows that he holds no cash. The debt owed by him is on paper only. At this point she wants to know if the account has been changed into her name and whether she will receive more interest this way on the principal owed. 34.The next, highly significant, e-mail is at B3/36-37. It is dated 11th November 2009. The wife wanted a letter from Mr Nayar stating that the money had been taken from the account held by the husband and by herself (GSA and SGI) and put into her name. She asks to be informed when the new account in her name has been set up. On the 11th December 2009 she wrote to ask Mr Nayar for a statement of account of what is now owed to her since the transfer of the GSA and SGI accounts have been transferred into her name and to her credit [see B3/39]. Mr Nayar replied [B3/40] to confirm for her that on the 1st December USD825,000 had been transferred from SGI into her name. He then set out for her his projection of the minimum interest payments that would be due to her on the principal amount. This is a crucial e-mail which Mr Clough relies on as showing the completion of the transaction by which the wife had elected to look to Mr Nayar as her debtor in substitution to the husband. On the prepared account she was due to receive USD1,266,841.34. There then follow a series of statements of account prepared by Mr Nayar which show out the accounts now stood with him. The wife recognises this by an e-mail on 23rd December 2009 [B3/46]. This is repeated in her e-mail [B3/47] dated the 4th January 2010. 35.What the wife says is that she believed that there was real cash behind these accounts and not just numbers on pieces of paper. 36.On the 17th September 2010 she wrote again to Mr Nayar understanding his position that he would now not be able to pay her by December 2010. On the 6th December 2010 [B3/55] he sent her what must have been a very depressing e-mail to receive setting out a “5 year plan” for repayments which for her must now represent a negligible prospect of getting anything paid out. 37.Her case is that she considered that there always was real money there. Had she known that all she was getting was the transfer of a debt owed by Mr Nayar to her husband she would not have consented to these arrangements. Mrs Campbell-Moffatt submits that when one examines the evidence properly it ought to compel a conclusion that there had been collusion between the husband and Mr Nayar to get the husband off the hook and substitute Mr Nayar as the wife’s debtor, he being out of the court’s reach and not worth powder and shot. He is simply not worth pursuing especially now that he lives in India. Was there collusion? 38.This has been an important aspect of the evidence. For my part, I do not believe that there has been any collusion or manoeuvering of the wife into accepting the new arrangements by which Mr Nayar was to become her debtor in substitution of the husband. This has not been made out. Equally, I am convinced that she fully realised that when she entered into the arrangement with Mr Nayar that he lacked the means at that stage to pay her anything. All of these discussions were on the basis that he would pay in the future once he had the ability to pay. It is also significant that at this time she was having assistance from Mr Sherry. The e-mails in this regard are in B3 and, it is also right to say that she had her solicitors for advice if she wanted to. 39.I regret to say that this is a case where everybody seems to have lost. The simple fact is that Mr Nayar is most unlikely to be able to pay anybody. The husband has lost on his account with Mr Nayar as has the wife. What is the legal position? 40.These facts show that there has been a tripartite agreement by which the wife has released the husband from his liability under the September 2008 orders. He had a right to expect payment from Mr Nayar under loans that he had made to him, however illusory that expectation may have become after the 2008 financial crash. He has now transferred those rights to the wife with her agreement and full knowledge of what was going on and with the agreement of Mr Nayar. It would be unconscionable for her to now change her position and insist on her rights under the September 2008 orders. Mr Clough is right that this is a situation which is similar to that in the case of Raziya v Raziya unreported Case 1184 1/11, High Court of South Africa (Western Cape High Court, Capetown) per Fourie J. 41.Once the wife opted to follow Mr Nayar, in the circumstances of this case, she extinguished her rights under the September 2008 orders. 42.I find therefore that when she applied for the judgment summons the husband was no longer indebted to her with the result that had I been required to I would have dismissed the judgment summons with an order costs in favour of the husband. Because I have set aside the judgment summons for non-disclosure, this part of the judgment is academic and will only become relevant if I am found by another court to have been in error in setting aside for non-disclosure the ex-parte grant of leave to issue the judgment summons. 43.Lastly, I wish to express my gratitude to Mrs Campbell-Moffatt and to Mr Clough for their very considerable assistance.
Audrey Campbell-Moffatt, instructed by Stephenson Harwood for the Petitioner (Judgment creditor) Neal Clough, instructed by Yip, Tse and Tang for the Respondent (Judgment Debtor) | ||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 5389/2007