El v. Cfl
Read the full judgment text of FCMC 4685/2012 on BabelCite. This Family Court judgment before HH Judge Bruno Chan.
Matrimonial Proceedings – Specific Discovery – Credit Card Statements – Bank Statements – Relevance – Proportionality – Confidentiality – LKW v DD – B v B – Wife seeks discovery of Husband's financial documents to prove high standard of living – Husband objects on business confidentiality and proportionality – Credit card statements allowed; bank statements refused – Costs in the cause
Legal issues: Un-redacted Credit Card Statements · Bank Account Statements
Outcome: Application for specific discovery partially allowed
Cites 2 cases
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FCMC 4685/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES SUIT NO. 4685 OF 2012 ---------------------------- BETWEEN
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----------------------- DECISION ----------------------- 1.By way of a summons issued on 28th March 2013, the Petitioner Wife applies for certain specific discovery as to the Respondent Husband’s financial means. In her 7th Affirmation in support (A2/602) she described a very extravagant lifestyle during the marriage and criticized the Husband’s financial disclosure as inadequate, inaccurate or misleading, and attacked his credibility, and while he has since provided answers in his 2nd Answer dated 5th July 2013 and his 12th Affirmation of 23rd July 2013, Ms Yip for the Wife argues that some of his answers are still either inadequate, unsatisfactory or not answered at all, and that her requests are very much relevant to the major issues in dispute between the parties over their standard of living during their marriage and the true extent of the Husband’s means. 2.Mr Coleman for the Husband however contends that some of the requests are not for specific discovery but rather for evidential explanation, and that in any event they have already been appropriately answered, whereas those for specific documentation such as bank records and credit cards statements are either being objected by his employer as they were related to his business expenses, or that they go way beyond the normal or reasonable period for proper disclosure, and that they are either unnecessary, unjustified or excessive under the circumstances, or are not proportional to the disclosure exercise. 3.Disclosure must of course always be relevant to the matters in issue, as it was held in B v B (Matrimonial Proceedings : Discovery) [1979] 1 All ER 801 when Dunn J summarised the law relating to discovery in ancillary relief applications at p811:
4.The learned judge also made the following observations on relevancy in the context of financial proceedings in matrimonial cases at p809:
5.I agree this is a fairly accurate summary of how the court should deal with the matters of discovery in ancillary relief proceedings, but in the exercise of its judicial discretion in relation thereto, the court should also bear in mind of those 4 principles enunciated by Mr Justice Ribeiro PJ of the Court of Final Appeal in LKW v DD [2010] 13 HKCFAR 537 when he referred to Objective of Fairness, Rejection of Discrimination, Yardstick of Equal Division, and Rejection of Minute Retrospective Investigation, in particularly the last principle for the present purpose, of which he said as follows starting from paragraph 62:
6.It is with these principles in mind that I shall determine the matters now before me, but first it is essential to give some material background of the case. Relevant Background 7.The Husband was born on 6th October 1977 in Canada and is now aged 35. He spent his first 9 years in Hong Kong before furthering his studies in Canada, returning to Hong Kong in 1999 after graduating from university with a degree in economics. He has since been working in a group of companies, for the present purpose collectively referred to as REL, a family business in financial consultancy and investments which the Wife believes is controlled by his mother, first as an associate and now as CEO. In 2005 he purchased a property in Singapore (“the Singapore property”) by means of a bank mortgage and is said to have since made the monthly mortgage payments with a housing allowance from his employer. 8.The Wife was also born in Canada on 1st May 1980 and is now aged 33. After graduating from Canada in 2002 she came to Hong Kong to visit her parents and subsequently became employed by REL as an associate. After a courtship for about 2 years the parties married each other on 24th November 2006, and then made their matrimonial home in a property at Mountain Lodge on the Peak held by a company of which the Husband is named as director and shareholder but which he claims to be holding in trust for his mother. 9.On 22nd October 2010 the Wife gave birth to their only child, a daughter now almost 3 years old, but sadly the parties started to experience various marital conflicts which eventually led to the Husband moving out of the matrimonial home in late February 2012, followed soon by the Wife issuing a petition for divorce on 2nd April 2012 against the Husband based on his behaviour, and her inevitable resignation from REL to later join her present employer in June 2012 whom the Husband says to be a rival competitor of REL. 10.In her petition the Wife also sought sole custody care and control of the daughter and general ancillary for herself and the daughter, which were all opposed by the Husband, and hence for the following year or so the parties became embroiled in what can fairly be described as a most acrimonious and stubborn litigation initially mainly over every arrangement of their daughter down to the most numbing details, and now in their financial disputes including for further disclosure and discovery from both sides, such as the matter now before me, resulting in an insanely and staggering 13 bundles of pleadings and exhibits of almost 4000 pages, plus 4 correspondence bundles of 437 letters between solicitors with another 1272 pages mostly of incessant quarrels over every aspect of their litigation, resulting in a combined legal costs between them so far incurred of over HK$9 millions. All these for just 15 months since the issue of the petition, and with the FDR-related hearings yet to come. 11.These kinds of costs and litigation generated over such a relatively brief period of time seem to me wholly disproportional to the means and assets disclosed by the parties, no matter how justified they may well argue, or how well off they are accusing each other of, in particularly in the case of the Husband who according to the Wife has since the proceedings been crying poor but yet was responsible for as much as 2/3 of those costs, to which he retorted were the result of her unyielding, uncompromising and unreasonable attitude throughout the entire proceedings. An examination of their disclosed means in their Form E will reveal such insanity. 12.In his Financial Statement Form E of 19th June 2012 the Husband put his total income including housing allowance at HK$170,000 per month, with assets consisting of the said Singapore property with a net value of HK$21 million, savings of about HK$1.2 million, shares investment jointly with his mother of HK$1.4 million jointly, monies owed to him of about HK1 million (from the Wife), and personal items including a Lamborghini sports car, a few club memberships and some watches and wine collections totalling HK$3.5 million, but with various debts and liabilities of almost HK$13.5 million, the bulk of which being various loans from his mother of more than HK$12 million from 2005 to date, thus giving him a net worth of only HK$15 million (A1/114). Against this he has as noted above since incurred close to HK$6 million in legal costs in these proceedings. 13.In the same Form E the Husband described the standard of living enjoyed by the parties during the marriage as “a fairly comfortable lifestyle”, that they had stayed in the Mountain Lodge property only temporarily which is owned by his mother, that they only had 2 leisure holidays before their daughter was born, and thereafter only 3 holidays, some of which they would tag on the end of his business trips in order to minimize costs and expenses, that they did not have any club memberships until after the birth of their daughter, and that he had to borrow funds from his mother to purchase some of those club memberships with a view to provide their daughter some places to spend time with his parents (A1/119). 14.As for the Wife, her disclosed financial situation appears even more daunting. While she may have given herself a net worth of almost HK$62 million in her Form E filed slightly earlier on 29th May 2012 A1/47), the very bulk of which were in fact made up of her alleged half beneficial interests in the said Mountain Lodge property which she believes to be owned solely by the Husband and worth HK$60 million, and in the said Singapore property which is also in his sole name and which she believes to be worth a lot more than his estimation at HK$57 million. 15.What she actually owns or has in her possession or control consist in fact of only a Taikoo Shing flat occupied by her grandmother and some savings and equity with a total net value of just over HK$3.6 million, with some personal items such as jewellery to be appraised but clearly illiquid. As for her income she stated at just over HK$30,000 per month while at REL, and then at HK$97,500 per month from her present employer. 16.However, of significance is how she painted a very different picture from the Husband’s of their lifestyle during their marriage which she claims to be one of very high standard including the use and enjoyment of spacious and luxurious homes in both Hong Kong and Singapore, a team of 5 expensive cars including the said Lamborghini, memberships to exclusive clubs in Hong Kong and various other cities, with as many as 15 lavish holidays all over the world per year always on business class, and unlimited credit card spending on expensive jewellery and designer clothes and handbags regularly during the marriage, and that even after its breakdown, she would require more than HK$250,000 per month to meet her reasonable needs and those of her daughter without having to pay for accommodation in the former matrimonial home (A1/65). 17.In addition she also referred to other circumstances that she considers could significantly affect the extent of the financial provision to be made for her : that the chairman and owner of REL is of an elderly age and his succession planning has been in place, and that in the event of his demise, the Husband and his mother will stand to become the majority shareholders and their net worth will grow significantly, while the Husband is the only child in his family with already very wealthy parents with luxurious properties and expensive cars around the world (A1/66). 18.It is therefore patently obvious that at the heart of their financial dispute is over true extent of the Husband’s income and assets, which the Wife argues can only be accurately reflected by what was in fact the very high standard of their living and lifestyle prior to the breakdown of their marriage, the details of which she claims are all in his financial documents such as bank accounts records, credit cards statements and insurance policies sought by her application for specific discovery now before me. 19.As a matter of fact, prior to this application the Wife had already served 2 very substantive questionnaires dated respectively 11th January 2013 and 15th May 2013 on the Husband to which he had given his answers, but which the Wife obviously found unsatisfactory and hence her present specific discovery application which I now turn to consider. The Application 20.As already noted above, some of the requests have since been answered or dealt with and no longer require my determination. What remains outstanding are set out as below using the same numbering of the summons, which the Wife seek an order for the Husband to within 14 days file an affirmation or provide copies of documents : Paragraph 1 (4) : Explaining the receipts and payments from REL for the period from 1 may 2011 to 2 may 2012 totalling approximately SG$50,000 and SG$160,000 respectively together with supporting documents; Paragraph 1 (5) : Explaining whether he has had or previously owned any life insurance policies including an explanation whether he has ever held any life insurance policies in his own name or in respect of which he is the beneficiary of Sunlife Assurance New York Life John Hancock / Manulife Paragraph 2 (1) : Un-redacted copies of his credit card statements from March 2009 to date save for those already provided in respect of his personal credit cards with :
Paragraph 2 (2) : Bank statements from March 2009 to date save for those already provided in respect of the following bank accounts :
Paragraph 2 (3) : Bank statements or monthly transaction summary from JP Morgan Bank in respect of his JP Morgan International Bank Account from January 2005 to April 2010 Paragraph 2 (4) : The Wife’s credit card statement in respect of her supplementary HSBC Gold Visa from 2003 and American Express Black Centurion credit card from 2005 until the final date of cancellation of the credit cards by the Husband 21.I propose to deal with the parties’ arguments in respect of each of these items separately. Paragraph 1 (4) : REL receipts and payments 22.This item relates to the Husband’s Singapore property for which he claims to have paid HK$775,000 for the deposit and used the housing allowance from REL ranging between S$6,000 and S$8,000 per month to meet its mortgage payments, the purpose of which was to save hotel expenses due to his business travel commitments. 23.Ms Yip however argues that the Singapore property is such a luxurious apartment that had been enjoyed by the parties and shows the extremely high standard of their living that it cannot be right that part of the purchase price, namely the monthly instalment repayments, was “housing allowance” provided by the employer, and that it is the Wife’s case that the Husband can cause his employer to pay for his private luxurious apartment, and since these issues are highly relevant to the Husband’s true means and resources which ought to be investigated by the court, but without proper disclosure of such relevant information, the court’s investigative function would be fettered. 24.Mr Coleman submits that the Husband has already given his explanation in his 7th affirmation why the property was purchased and how it was funded, and that since it was purchased in 2005, he can no longer retrieve the relevant bank statements to prove the source of funds, but that in any event he does not deny that it is his asset, that he has already agreed to sell it so that funds will be made available to the parties, and that whatever benefits he has obtained from his employer towards the mortgage repayments whether by way of the housing allowance or its guise as suspected by the Wife, they will be properly reflected in the final value of the property in the ancillary relief application, hence he questions the relevancy of the request. 25.I agree with Mr Coleman that the Husband has already clarified from his disclosed bank records of how funds in US$ were transferred from his employer every month into his HSBC account and then exchanged into S$ to meet the mortgage instalments, and that the apparent irregularity in the monthly amounts were due to the fluctuation in exchanging the 2 different currencies. Any further disclosure in my view will not take the Wife’s case any further, nor will it be of any further assistance to the court, I therefore refuse this request. Paragraph 1 (5) : Insurance Policies 26.Ms Yip submits that the Husband’s original answer that he “does not currently hold any life insurance policy” was dodgy and incomplete, and was just too deliberate and an blatant attempt to avoid providing full disclosure. Mr Coleman argues that this was again a request for an explanation instead of specific discovery, and that in any event the Husband has already in his 12th Affirmation explained that he does not have any life insurance policy, nor is he aware that he is a beneficiary of any such policy. 27.In her supportive affirmation the Wife explained in paragraph 107 (A3/628) that her such request was based on the fact that the Husband had told her that he had these 4 universal life policies each worth US$10 million, and that in her understanding of her line of work, as a general rule of thumb, to have that kind of coverage a client will need to disclose assets with proof worth twice as much as the amount in coverage, hence if the Husband has life insurance of US$40 million in coverage, he would have a minimum net worth of US$80 million. 28.If that assertion is true, which is disputed by the Husband, and even accepting that he may have come from a family as wealthy as painted by the Wife, it would still seem too far-fetched to me that he would have a net worth of at least US$80 million, or the equivalence of HK$624 million, when he was then still in his late 20s having been out of school working for just a few years. Fortunately the matter eventually resolved itself at the hearing when the Husband confirmed through his counsel that he has never ever held any life insurance policy. Paragraph 2 (1) Un-redacted Credit Cards Statements of Husband 29.This is, as submitted by Ms Yip, the real bone of contention of this application. The basis of the Wife for un-redacted credit cards statements going back to 2009 is that the Husband’s spending on these cards is spectacular, especially with his American Express Centurion with an average amount of well over HK$400,000 per month, which will just go to support her case that it was a very high standard of living during the marriage, but with a large portion of his disclosed statements redacted because he claims they were business related for which his employer has already confirmed in writing and with reimbursement. 30.In addition the Husband has produced as evidence a letter from his employer (B10/3159) refusing permission for him to disclose the un-redacted copies of the statements, for which Mr Coleman contends that the employer has sound commercial reasons given that the Wife is now the senior vice president of the sales and marketing department for a company which is the direct competitor of the Husband’s employer, thus justifying redacting those transactions in the first place. 31.Furthermore, Mr Coleman argues that the employer’s auditor has already stated that on the expenses reports submitted by the Husband to the employer between May 2010 and May 2013 claiming reimbursement expenses in the amount of HK$3,336,046.07 and SGD238,323.04, the descriptions identify that all the expenses incurred were related to the employer’s business expenses, and that these reports had been duly approved by the CEO of the employer or an authorised representative of the CEO, and that the approved expenses of the 2 said sums had been reimbursed to the Husband and paid out from the relevant companies. 32.In any event Mr Coleman argues that since the parties separated in late February 2012 with the petition issued less than 2 months later, what the Wife is now seeking in fact goes back at least 3 years before separation and petition is wholly without basis, is unreasonable and costs disproportional. 33.To which Ms Yip counters that the redacted transactions from 21st March 2011 to 18th April 2012 for the AE card totalled HK$2,290,875.66 is in fact substantially larger than the alleged reimbursements of HK$818,624.60 for the same period and hence does not tally with the Husband’s case, and that those alleged confirmations of business expenses look suspicious given his close relationship with his employer. 34.As to his employer’s alleged fear of the Wife’s misuse of the redacted information, Ms Yip argues that such concern is baseless and should be allayed by the double protection of the implied duty of confidentiality imposed by law in private proceedings and the Wife’s express undertaking not to divulge such information. In any event she contends that the Husband’s allegations in his 12th affirmation about the Wife and her brother breaching his company regulations after she left her employment are purely speculative averments unsupported by evidence. 35.Ms Yip further argues that it is the Husband’s allegation that in order to satisfy the Wife’s demands for luxury, he began heavy borrowings from his mother since 2005 which are so substantial that it would affect the size of the family assets significantly, the expenses on the credit cards will support or destroy his case on the loans, hence they are highly relevant to the core issue and ought to be disclosed. 36.As I have already identified above the significance of the parties’ core issue over the standard of living and lifestyle during the marriage, I agree with Ms Yip that credit card spending are of such relevance and importance to the core issue that in my view it should outweigh whatever concern the employer may have over any possible bleach of confidentiality or misuse of their information by the Wife, in particularly with the undertaking given by her to the court. Besides, as pointed out by Ms Yip, any particular commercial practices or dealings the Husband may have with his clients would not have been any secret to his wife who had worked in the same company for almost 9 years. 37.I also agree with the Wife’s reason for the un-redacted statements to go back to 2009 as necessary to reveal their spending pattern over a period before and after the birth of their daughter so as to reflect an accurate and complete picture of their lifestyle as a whole family. Furthermore, un-redacting those credit card statements should not involve much legal costs, and if they were indeed the Husband’s business related expenses, it would no doubt go a long way to resolve one of their core issues. I would therefore allow this request. Paragraph 2 (2) Bank Accounts Statements 38.The Wife gave the same reason as above for seeking disclosure from one year prior to breakdown of the marriage, and also relies on paragraph 8.2 of her FTI report (B7/2090) which suggests that:
39.Hence Ms Yip contends that the forensic examination of the Husband’s bank accounts is extremely relevant to the core issue of his means, and therefore disclosure from March 2009 is amply justified. 40.It is not in dispute that the Husband has already disclosed all bank statements from April 2010 and with additional disclosure in response to the Wife’s 2 Questionnaires mentioned above, of which Mr Coleman submits as more than sufficient, and that there is no justification to go back more than 4 years and more than 2 years prior to the issue of the petition in the context of a relatively short marriage of 5 years. 41.The Husband’s disclosure from April 2010 is in fact some 6 months prior to the birth of the daughter when there is no indication to suggest any marital problems between the parties that may cause the Wife to suspect any intention on his part to start concealing his income or means. In fact it is her case that their lavish lifestyle had continued up to the time of their separation in early 2012. If indeed what her FTI report has suggested about the quantum of those transactions in his disclosed bank statements far exceeding his reported income is correct, she already has sufficient evidence to ask the court to draw adverse inferences against him, and the burden would be on him to refute them, I fail to see how much more assistance the additional disclosure for one more year to 2009 would help to resolve this issue. I agree with Mr Coleman that the Husband has already made sufficient disclosure of his bank statements, and hence I refuse this request of the Wife. Paragraph 2 (3) JP Morgan Account 42.Same as with his bank statements, the Husband has already made disclosure of this investment account from April 2010, but the Wife now seeks further disclosure going back to 2005 for the reasons set out in paragraphs 108 to 110 of her 7th Affirmation (A2/628 – 629), which seem to me were rather more relevant to supporting her case over his alleged life insurance policy but which he has now confirmed that he has never ever held any, in which case her main justification for requiring disclosure going back to 2005 would seem no longer valid. 43.However, Ms Yip argues that such requirement would still be necessary since it is the Husband’s case that “he was so broke that since 2005, he began to live on loans”, but yet those statements which he has disclosed has revealed extremely valuable transactions which she says are unbecoming of a salary man earning only HK$125,000 per month, and hence she believes that a production of the historical documents will show that he is indeed a man of substantial independent wealth. 44.Again the Husband argues that sufficient disclosure has already been made for 2 years before the petition from April 2010, and that there is simply no justification to go back to January 2005, almost 2 years even before the marriage in November 2006. I agree. Unlike credit card statements which are usually for gauging standard of living during marriage and hence some historical track record is obviously necessary, investment accounts are rather more relevant to ascertaining the extent or value of assets, and unless there is evidence to suggest attempts on his part to dissipate assets, of which there is none here as far as I am aware of, I fail to see the necessity of seeking any further disclosure of the Husband’s JP Morgan account than already made, let alone going that far back as sought by the Wife. I therefore refuse this request. Paragraph 2 (4) Wife’s Supplementary Credit Cards Statements 45.The Wife makes this request because it is her case that she spent on exquisite items with no limit on quantum since 2003 even before the dating, and that the “doting” on her by the Husband continued until the day right after the separation, and it is therefore of vital importance that the court should have a clear picture of not just the Husband’s but also the Wife’s spending pattern as well, but since her cards were all supplementary to his, she requires their production by him. 46.Whether or not the Wife was indeed “dotted” on by the Husband even prior to their marriage, which is in reality not uncommon during courtship, it is still only relevant to that issue of standard of living during the marriage, and which I have already dealt with above with the Husband’s credit cards statements, and I agree with Mr Coleman that there is no justification or necessity for such a request, and which I will not allow. Conclusion 47.In conclusion and for these reasons I make an order as above accordingly. I however find it necessary to say this : while I may not agree with Mr Coleman that the Wife’s application was a blatant fishing expedition, I certainly share the sentiment that, and as I have already commented above, this constant complaint of hers as to lack of funds to meet her legal costs, to which I was fully sympathetic at her earlier maintenance pending suit application, and I also note similar complaint from the Husband, but notwithstanding still the tendency to argue over almost anything in the proceedings between them instead of trying to compromise through mediation or otherwise, thereby causing more and more contested applications and court hearings with obviously more legal costs by both sides is simply and painfully unfathomable. If indeed the parties are psychologically or emotionally incapable of helping themselves to see the irony and to get out of this vicious circle, certainly those representing them have a duty and obligation to help them to do so, or so I implore them to. 48.Finally, on the question of costs of the application, I propose to make an order nisi that costs be in the cause to be made absolute at the expiration of 14 days. As always I have had the benefit of the most valuable assistance from both Ms Yip and Mr Coleman, to whom I am very grateful.
Ms Anita Yip instructed by Messrs. Stevenson, Wong & Co for the Petitioner. Mr Russell Coleman SC instructed by Messrs. Hampton Winter & Glynn for the Respondent. | ||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 4685/2012