Esby v. Lch

HCMP 1420/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1420 OF 2013

(ON AN INTENDED APPEAL FROM FCMC NO. 8469 OF 2006)

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BETWEEN

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D E C I S I O N

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Hon Kwan JA (giving the decision of the Court):

1.This is an application for leave to appeal against the judgment of His Honour Judge C K Chan on 20 March 2013 in a variation of maintenance by the mother concerning an eight-year old boy, which is governed by section 11(1) and (7) of the Matrimonial Proceedings and Property Ordinance, Cap 192. The mother sought an increase of monthly maintenance from the father from $2,800 to $12,335. After a two-day trial, the judge varied the maintenance to $4,100 per month. The mother sought leave to appeal to this court. The judge refused leave on 28 May 2013 after considering each of the grounds in the draft notice of appeal placed before him. The mother issued a summons in the present proceedings on 10 June 2013 to renew her application for leave to appeal to this court.

2.The father has been acting in person throughout.  He has filed a statement in opposition.  The wife was represented by her solicitor and by counsel for the purpose of her applications for leave to appeal.

3.We exercise our power under Order 59 rule 2A(5) of the Rules of the High Court to determine this application without an oral hearing.

4.Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”[1].

5.A judge’s order in a variation of maintenance is an exercise of discretion.  In accordance with established principles, an appeal court does not interfere with a judge’s discretion merely because it might have taken a different view.  It would only interfere if the judge’s exercise of discretion was based upon a misunderstanding of the law or of the evidence before him or if his decision was plainly wrong.  As stated by Asquith LJ in Bellenden (Formerly Satterwaite) v Satterwaite [1948] 1 All ER 343 at 345, “it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

6.The relevant background of the application for variation of maintenance of the child and the findings of the judge were conveniently summarised by the judge in his judgment in refusing leave to appeal (“the 2^nd Judgment”), which I set out below:

“2. The parties married in 2004. T was born in the same year and is therefore now aged 8.

3. After the mother had issued a petition for divorce in 2006, the parties entered into negotiation resulting in the court granting a joint custody order of T with care and control to the mother and defined access to the father.”

7.I pause here to mention that as the judge had observed in his judgment of 20 March 2013 (“the 1^st Judgment”), under the agreed access arrangement which includes staying access, T spends a “not insubstantial amount of time with the father in access.”

8.Carrying on with the background and findings as summarised by the judge, this reads as follows:

“4. For the issue of ancillary relief, the parties had entered into a consent summons dated 4 February 2008 to include, inter alia, a term for the father to pay $2,800 per month towards the maintenance of T. Apart from this there was also an undertaking from the father in the following term:

“IV. AND UPON [the father’s] undertaking to the Court and to [the mother] that he will not seek reimbursement from [the mother] for any expenses in relation to the child of the family, namely [T], … incurred when he is exercising access to [T].”

…

6. The consent summons was later made an order of the court on 22 April 2008 with the said undertaking.

7. On 22 October 2012, the mother issued a notice for application for ancillary relief asking for T’s maintenance to be increased. The latest positions of the parties before trial were that the mother asked for the monthly maintenance to be increased to $12,335 while the father only agreed to pay a sum of $4,500.

8. A trial was conducted and this court’s Judgment was handed down on 20 March 2013 with the following findings:

(1) The total reasonable monthly expenses of T should be $26,098 (with $19,723 currently borne by the mother and $6,375 by the father).

(2) The sharing of those expenses should be by the ratio of 60% to the mother and 40% to the father, meaning that the father should bear the sum of $10,439 ($26,098 x 40% = $10,439).

(3) Since the father had already been expending the monthly sum of $6,375 on T, the net monthly payment that he should make to the mother was $4,064 ($10,439 - $6,375 = $4,064). Such sum was rounded up to $4,100 for the ease of calculation.

9. As a result, this court ordered the monthly maintenance payable by the father to be increased from $2,800 to $4,100 with the other terms of the original order remaining the same, including the said undertaking.”

9.In the draft notice of appeal annexed to the present summons, the grounds of appeal were expanded from six in the grounds placed before the judge to 15.  The main ground of appeal concerns the undertaking in the consent order made in 2008, and this is covered in grounds 1 to 7.

10.In gist, the mother contended that the judge had failed to give any or any sufficient weight to the undertaking, which was not referred to in the 1^st Judgment.  She contended that it is contrary to the terms and effect of the undertaking to include the expenses incurred by the father towards the child during access in the total expenses of the child.  In so doing, the judge unilaterally re-wrote the parties’ agreement in the consent order of 2008 and had in effect released the father from the undertaking without justification and without giving an opportunity to the mother to address him on any decision to release the undertaking.  It was contended the judge should have allowed the parties to adduce evidence regarding the circumstances as to how it was given before he should decide on its interpretation.  And the judge should have informed the parties that the father’s expenses towards the child during access would be included in the computation contrary to the undertaking, to give the mother an opportunity to adduce evidence and make submissions on this.

11.The crux of the matter is whether in taking into account the expenses incurred by the father towards the child during access in the computation of the total expenses of the child, this is contrary to the terms of the father’s undertaking not to “seek reimbursement” from the mother in respect of such expenses.  We are firmly of the view this is not contrary to the terms of the undertaking, according to the ordinary and natural meaning of the wording.  We fail to see any ambiguity on the wording or that the undertaking is reasonably capable of more than one interpretation, as contended by counsel.

12.To the contrary, if the parties had intended that the father, who was envisaged to incur expenses during the not insubstantial periods of access, should not be allowed to include such expenses in his liability towards the reasonable maintenance of the child, or to have such expenses to be taken into account in any way vis-à-vis the mother, a much clearer form of wording is required for the undertaking.  As the judge has postulated in the present case, if the father’s expenses during access were precluded from being taken into account so that he should pay the mother 40% of the child’s total expenses ($26,098 x 40% = $10,439), his total contribution would be $16,814 ($10,439 + $6,375) in that he would have to pay his actual expenses ($6,375) twice and his contribution towards the child’s expenses would be duplicated.  If this result was indeed intended by the parties when they entered into the agreement in 2008, the father’s undertaking would have to be worded differently.

13.For the above reasons, we do not think the mother’s arguments on the undertaking would satisfy the threshold test for leave to appeal to be granted.  We do not think there is merit in the contention that the judge has released the father from the undertaking by the order he made.  There is no error of law or of principle.

14.The other grounds of appeal may be disposed of succinctly.

15.Attack was made in grounds 8 to 10 on the genuineness of the tenancy agreement which the father claimed he entered into with his parents.  We agree with the judge for the reasons given in §29 of the 2^nd Judgment there is nothing to this criticism.  Nor do we think there is any merit in ground 13 which challenges the judge’s holding that the father had supported his parents financially, for the reasons the judge gave in §§26 and 27 of the 2^nd Judgment.

16.The remaining substantive grounds are 11 (which relates to the finding that ¼ of the father’s expenses was attributable to the child) and 12 (which relates to the ruling that the apportionment of the total expenses between the parents with 40% to the father and 60% to the mother).  Bearing in mind the established principles mentioned above, these are clearly matters for which there would be a generous ambit within which reasonable disagreement is possible.  We are not persuaded the judge is clearly wrong in those matters, and there is no basis for the appeal court to intervene.

17.For all the above reasons, we do not consider there is any reasonable prospect of success in the appeal proposed to be brought by the mother.  The threshold requirement for granting leave to appeal is not met, nor is there any other reason in the interests of justice why the appeal should be heard.  We therefore dismiss the application for leave to appeal.

18.As the application is wholly without merit, we make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

19.We make an order nisi that the mother is to pay the father’s costs of this application, which we assess summarily on a gross sum basis at $800.  Any party who seeks to vary the order nisi shall lodge a written submission within 7 days hereof, failing which such order shall become absolute.

Written submissions by Mr Albert R Xavier, instructed by Chaine, Chow & Barbara Hung, for the Petitioner (the mother)

Written submissions by the Respondent (the father), acting in person

[1] SMSE v KL [2009] 4 HKLRD 125 §17