Ngan Wah Chun Wing v. Ngan Fut Kam

CACV000146/1990

BETWEEN

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Coram: Hon. Sir Derek Cons, V-P, Kempster and Clough, JJ.A.

Date of hearing: 9 and 10 January 1991

Date of handing down of judgment: 19 February 1991

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JUDGMENT

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Clough, J.A. handed down the judgment of the court:

1. This is a husband's appeal against the order for financial provision made in divorcee proceedings by Her Honour Judge Beeson (then sitting as a Deputy District Judge) on the 21st May 1990 in favour of the petitioning wife. The order required the husband to transfer to the wife all his interest in the matrimonial home, a flat in Shamshuipo, and to make periodical payments for the benefit of the wife and her younger daughter ("the daughter"), born on the 20th April 1973, by a previous marriage who was held to be a child of the family in relation to the marriage of the husband and wife for the purposes of the Matrimonial Proceedings and Property Ordinance (Cap. 192). The husband was ordered to pay the wife $400 per month for the benefit of the daughter commencing on the 1st June 1990 and continuing on the first day of each succeeding month up to and including the 1st September 1990. Under the order he was required to pay $600 per month to the wife commencing on the 1st June 1990. By his notice of appeal the husband, who was represented by counsel on appeal but appeared in person below, sought to have the order set aside and to obtain an order for a re-hearing before another judges. The wife filed a respondent's notice containing additional grounds relied upon for the affirmation of the order.

2. The parties were married in Hong Kong on the 15th July 1983. The wife must then have been aged about 40 and the husband about 45. On the 18th October 1989 the wife affirmed her age to be then 47 and at the hearing on the 21st May 1990 her solicitor said she was 48. On the 18th November 1989 the husband affirmed that he was 52, although at the hearing below, about six months later he told the court he was nearly 60 and the wife 49. The wife had come to Hong Kong from China with the daughter on or about the 27th August 1980. The parties had married one month after meeting. The wife had also had an elder daughter by her previous marriage who subsequently came to Hong Kong to live with the parties but is now married and living with her husband and his parents in Tsim Sha Tsui.

3. The husband had been in the frozen meat trade, in a small way in North Point since the 16th March 1982. The lease of his premises expired on the 15th September 1984. On the 16th December 1984 he re-started the business in Mongkok. At this time he entered into partnership with a relative but this was dissolved after six months and thereafter he continued the business on his own. The husband claimed in his evidence that his business yielded only a very modest net profit. He exhibited copies of his tax returns relating to the period after the business had moved to Mongkok and his partnership with a relative in the Mongkok premises had been dissolved in June 1985. He provided no figures for the year ending on the 31st March 1989. The relevant dates and profit figures in the returns were as follows:

On the 16th May 1988 the husband had been informed by the Inland Revenue Department that it would not in future years be requiring him to make an annual profits tax return but that if the future annual profits of his business should exceed $81,000 he must inform the department.

4. There was no evidence regarding the wife's career, if any, prior to the marriage. It was common ground that the wife had assisted the husband in the business in North Point during the early stages of the marriage but there was a conflict of evidence regarding the subsequent period when the husband denied that she had assisted him. It was however common ground that the wife had worked from time to time in restaurants or night clubs during the latter period.

5. Apart from the husband's business the only capital asset was the matrimonial home which the husband had purchased for $218,000 on the 19th August 1985 with the assistance of a mortgage loan of $100,000 from a bank.   On the 14th October 1986 the property was transferred by the husband into the joint beneficial names of the parties for a stated consideration of $20,000. By the 23rd March 1988 the husband had paid off the mortgage which was discharged on that date.

6. The husband stated in answer to the wife's questionnaire under rule 74(4) of the Matrimonial Causes Rules that a policy issued to him by an American insurance company had a cash value of (US)$70,000. This was relied upon by the wife below, by the judge in her judgment, and by the wife in her respondent's notice, but by the time of the hearing of this appeal it was common ground that there had been a misunderstanding about the present value of the policy which evidently had no substantial surrender value and could not be regarded as a substantial asset.

7. The marriage was short and unsuccessful. By early 1985 quarrels were occurring over money and the wife's allegations that the husband was having affairs with and contemplating marriage with another woman in China. This led to violence by the husband culminating in the making of an order against the husband on the 15th May 1988 under sections 3 and 5 of the Domestic Violence Ordinance (Cap. 189) restraining the husband from molesting the wife and daughter and excluding him from the matrimonial home. On the 30th June 1988 the wife filed her petition for divorce under section 11A(1)(b) of the Matrimonial Causes Ordinance (Cap. 179) on the ground that the husband had behaved in such a way that the wife could not reasonably be expected to live with him. The husband purported to file an answer to the petition on the 24th October 1988 but this was ineffectual as on the 12th October 1988 the wife had been granted a decree nisi by His Honour Judge Blackwell on the ground contained in her petition. At the same time custody of the daughter was granted to the wife. The matter of financial provision was adjourned to Chambers and the parties were directed to file their affidavits of means exhibiting their respective bank statements.

8. Between Judge Blackwell's order on the 12th October 1988 and the eventual hearing before Judge Beeson on the 21st May 1990 a substantial volume of affirmation evidence was filed on both sides. Relevant procedural events were as follows. On the 23rd November 1988, after the parties had filed their initial affirmations of means,  the wife gave notice of her intention to apply at the pending hearing before Judge Blackwell on the 6th December 1988 to cross examine the husband on his affirmation of means. When the matter came before Judge Blackwell it was not ready for hearing and had to be stood over. However the judge ordered the husband to file evidence exhibiting copies of all his bank statements for the previous four years with a number of specified banks and made an order for interim maintenance of the wife and daughter. The husband was ordered to pay $2,500 per month ($1500 for the wife and $1,000 for the daughter) commencing on the 1st December 1988. These payments were required to be made into the wife's account with the Hong Kong Bank

9. There followed disputes concerning the payment of interim maintenance by the husband. By their letter dated the 17th March 1989 to the husband the wife's solicitors claimed that he had only paid $2,000 into the wife's bank account for the month of December and nothing for February and March They claimed arrears of $5,500. The husband, by his letter in reply dated the 30th March 1989 denied that he was in arrears. He claimed to have overpaid to the extent of $800. He relied inter alia on six alleged cash payments to the wife (notwithstanding the terms of Judge Blackwell's order for interim maintenance) amounting to $3,800. As appears below, the dispute over arrears of maintenance has never been resolved.

10. On the 17th July 1989 His Honour Judge Lee made an order (endorsed with a penal notice) inter alia requiring the husband to file further evidence exhibiting copies of all bank statements during the previous four years from eight specified banks. The husband purported to comply with this order, as far as he was able to do, on the 1st August 1989 and evidently gave the wife's solicitors written authority to make their own investigations into his bank accounts. This resulted in the wife exhibiting to her second affidavit of means, filed on the 9th October 1989, copies of bank statements of the husband from the Hang Lung and Hong Kong Banks, the former disclosing a balance of $1,612.40 on the 24th November 1984 and the latter a balance of $114.42 on the 30th June 1989.

11. The matter came before Judge Lee for hearing on the 20th October 1989. It was again adjourned to a date to be fixed and both parties were given leave to file further affirmations. By a long questionnaire under rule 77(4) the wife required further information of a wide ranging nature concerning his affairs.  This was answered by the husband on the 18th November 1989 when he made his third affirmation of means.

12. When finally the matter came to be heard by Judge Beeson on the 21st May 1990 the evidence was voluminous. The record does not indicate that Mr. To, the wife's solicitor, referred the judge to the wife's notice of intention to apply to cross examine the husband. He told the judge that Judge Lee had suggested "an accounting" but Mr. To seems to have regarded B. v. B. [1989]1 FLR 119 as authority for the view that the husband's business, which was not intended to be sold, but considered only a source of income, should not be inquired into in great detail. Accordingly Mr. To made no application to cross examine the husband and based his submissions on the affidavit evidence.

13. In presenting the wife's case below Mr. To initially asked the court to order the husband to transfer his interest in the matrimonial home (the value of which the wife had affirmed on the 18th October 1989 to be, about $350,000 on a rough estimate) to the wife (so that she would get the flat absolutely) and also to make monthly payments of $1,000 to the household of the wife and the daughter who would be living together in the flat. He advanced this claim on the basis that the wife's evidence showed the expenses of the wife and the daughter's household to be $4,700. He put the wife's monthly earning capacity at $2,700 and added $1,000 which he said the wife could obtain as rent on one of the rooms in the flat if it became her absolute property. The $1,000 per month claimed from the husband would thus make up the balance of the required $4,700. In advancing these claims Mr. To asked the court to treat the husband as in fact having a monthly income of not less than $10,000, so that he would have no difficulty in finding a place to live.

14. When pressing the wife's claim to the whole beneficial interest in the flat, Mr. To stressed that the husband had been and was in arrears in making interim maintenance payments and that the position of the wife and daughter might be insecure if they were made to rely on periodical payments by him. After the husband had made submissions claiming inter alia that he had bought the flat for his old age from his savings, that the wife had contributed nothing and that he had nowhere else to live, Mr. To appears from the judge's note to have replied in terms indicating inter alia that if the wife should be given the husband's notionally severed half share in the flat at the wife's value of $175,000 (i.e. one half of $350,000) that would be "equivalent 17 months periodical payments." We do not know what the judge made of this. We cannot reconcile the proposition either with the monthly sum of $4,700 which Mr. To relied on as the expenses of the wife's household (unless the 17 should be 37) or with the monthly sum of $1,000 claimed as a periodical payment for the wife and daughter together. Be that as it may, at the end of his reply Mr. To is recorded assaying:

15. This submission did not amount to an abandonment by Mr. To of the wife's claim for periodical payments for the maintenance of herself and the daughter. It was not so understood by the   judge who indicated in her judgment that the wife was claiming maintenance for herself and the daughter and also the husband's interest in the flat, although no claim was made against the husband's business or for a lump sum. However, Mr. To's final submission was clearly raising the lesser claim of the property transfer without additional periodical payments as an alternative.

16. The judge's findings, in what we were informed by counsel for the wife, on instructions from his instructing solicitors, was an oral extempore judgment, were unfavourable to the husband on most of the issues. She formed the view that he "had not been frank with the court as to his assets and earnings and that he did not recognise any responsibility towards his wife at all". In the early part of her judgment the judge indicated that she understood the transfer of the husband's interest in the flat was sought as a means of ensuring that the wife "retained a place in which to live and that her maintenance in future years was ensured". However, in common with counsel on both sides in the appeal we have found it impossible to comprehend all the figures in the concluding part of the judgment or to reconcile that part of the judgment with the order that followed.

17. After giving her reasons for accepting the wife's estimate of the value of the flat, the judge put a value of $175,000 on the husband's interest. She then concluded her judgment as follows:

18. The reasonable inference to be drawn from this concluding passage must be that the Judge was proposing to make a property transfer order against the husband in order to provide some measure of security to the wife for her maintenance because any order for periodic payments would be useless. This would be in accord with the alternative submission by Mr. To on behalf of the wife. However, having declared that an order for periodical payments would be a brutum fulmen the judge proceeded to make such an order. This part of the order was understandably attacked in the husband's grounds of appeal, but not pressed in the case of the daughter because the order in her case provided for only four payments of $400 and became spent on the 1st September 1990. In the case of the wife it is difficult to see how it can be justified and not surprising that p Mr. Mitchell, who argued the appeal ably on the wife's behalf, felt unable to sustain the order for periodical payments in favour of the wife.

19. Mr. Mitchell sought to persuade the court to vary this part of the order to one for nominal periodical payments so as to keep the position open for the future. We are not disposed to accede to this proposal because, for the reasons given later in this judgment, we consider that in all the circumstances of the case, considered in the light of section 7 of the Matrimonial Proceedings and Property Ordinance, the wife's reasonable requirements would be adequately provided for by the property transfer order made by the judge.

20. We have found it convenient to isolate and deal first with the husband's ground of appeal relating to the order for periodical payments in favour of the wife.  However, apart from the order for periodical payments in favour of the daughter, Miss Van der Eb attacked the whole order made by the judge root and branch and sought a re-trial. The first ground for this attack was that the judge had wrongly made a number of adverse findings (some of them demonstrably erroneous) against the husband on material disputed issues of fact without hearing the parties on oath and under cross examination. The second ground of appeal alleged that the judge had not given any or any proper consideration to a number of material facts. These were that:

21. The third ground of appeal was that (a) the judge had erred in law by not explaining to the husband, who appeared in person, his right to cross examine the wife on her affirmation evidence and (b) in view of the wife's notice dated the 23rd November 1988, the judge wrongly stated that neither party had applied to cross examine.

22. As to the first ground of appeal, rule 77(5) of the Matrimonial Causes Rules (which by a tortuous legislative route apply to these proceedings under the Matrimonial Proceedings and Property Ordinance) provides:

No authority was cited to suggest that the judge was under a duty to direct oral evidence and cross examination on her own initiative in the absence of any application by either of the parties in that behalf in this case. Indeed rule 77(5) confers a power, not a duty on the court. If either party had applied to the judge for leave to adduce oral evidence and/or to cross examine the other party the judge should, in our opinion, and no doubt would have granted the application: c.f. Walsh v. Corcoran (1983) 4 FLR,59 (C.A.)(which was not cited) where Ormrod L.J. at p.61D-E and Wood J. at p.64 emphasised the desirability of admitting oral evidence in order to determine credibility issues where the parties wish it in proceedings of this nature. In this connection, as Mr. Mitchell pointed out, substantial volume of evidence and discovery had occurred subsequent to the service of the wife's notice of intention to apply to cross-examine and it was clearly open to the wife to refrain from applying to cross-examine when the hearing occurred about eighteen months later.

23. We emphasise the manifest desirability of oral evidence being admitted to enable the court to determine issues of credibility where there. is material conflict in affidavit evidence, but whilst the court may always warn parties that it may be unable to determine such conflicts in the absence of oral evidence and cross-examination we do not consider that it has jurisdiction to direct an unwilling party to adduce oral evidence or to cross-examine a witness for the other party.

24. Where, as in the present case, the evidence is confined to affidavit evidence the extent to which, if at all, the court can properly determine the factual issues arising between the parties must depend upon the circumstances of the case. It is a familiar problem in Order 14 cases. In the present case some of the findings of the judge can be shown to have been wholly or partially wrong or unjustified but whether such findings render her property transfer order erroneous and a re-trial necessary is another matter.

25. Six findings of fact are attacked under the first ground of appeal. The first finding was that the husband had been dilatory in filing his affirmation of means. As to this Miss Van der Eb was able to demonstrate that the husband had in fact complied within time with every relevant order. However, in fairness to the judge, what she actually said in her  judgment was:

Mr. Mitchell pointed out that whilst the husband filed his evidence in time there was difficulty in getting him to comply with Judge Blackwell's order made on the 12th October 1988 requiring him to exhibit bank statements. Eventually Judge Lee had made an order in this respect on the 17th July 1989 endorsed with a penal notice, but even then the wife's solicitors discovered the existence of his bank accounts referred to in paragraph 19 of the wife's affirmation filed on the 19th October 1989. Furthermore subsequent requests for discovery by the husband of copies of audited balance sheets and profit and loss accounts of his business since August 1985 elicited only a reference to his previously exhibited tax returns. Whilst the husband no doubt had his difficulties in making proper discovery in compliance with the orders of the court it can fairly be said that his effective compliance was neither immediate nor comprehensive.

26. The second finding related to the vesting of the flat in joint names. We mention that whilst the niceties of distinction between beneficial joint tenancy and beneficial common ownership have been understandably ignored in these proceedings, we have accepted for the purposes of this judgment that the fact that the parties could have severed their joint interest (see section 8 of the Convincing and Property Ordinance Cap. 219) or obtained Ian order for sale of the flat, under sections 2 and 6 of the Partition Ordinance (Cap. 352), provides practical justification for referring to the parties as each having a half share in the flat. The finding of the judge was to the effect that the husband had transferred a half share in the flat to the wife in recognition of her contribution in cash and labour to the marriage and to the husband's business.

27. Miss Van der Eb rightly stressed that the husband had affirmed in various affirmations that the wife had made no contribution towards the purchase of the flat and that she had worked in the business for only a few months. The context in which the judge made her finding in her judgment was as follows:

28. Although the evidence understandably escaped the vigilance of counsel and, of the judge (and of this court at the hearing of the appeal) the wife's own evidence in paragraph 21 of her affirmation filed on the 16th November 1988 was that in 1986 the wife strongly opposed the husband's proposal to marry a girl in China and he had added the wife's name as a joint beneficial owner of the flat "as he feared that I would go back to mainland China to accuse him of bigamy". This evidence from the wife herself provides a clear basis for removing the difficulty expressed by the judge in seeing what pressure could be applied to the husband to force a transfer of a half share in the flat to the wife. However, as Mr. Mitchell rightly submitted, the court was concerned with the question whether the husband should transfer his interest in the flat to the wife. The wife was entitled to her interest in the flat in her own right under the terms of an express transfer. The husband had not applied for a transfer order in his favour in respect of her interest which he had in fact offered to purchase at her valuation.

29. In fairness to the husband, we have considered this matter on the basis that, as he contended, the wife only effectively assisted in the business during the few months that the business remained in North Point. However we have borne in mind, as the judge did, that the husband admitted that the wife had worked during the marriage. In this way she contributed to the welfare of the family in addition to doing so by looking after the home and caring for the family: see section 7(1)(f) of the Ordinance. The error made by the judge in this finding is not therefore, in our opinion, of major or fatal relevance.

30. The third finding was that very little interim maintenance ordered to be paid by the husband had been paid and that at the time of the hearing substantial arrears were outstanding. At the end of the judgment, in the concluding passage cited earlier in this judgment, the judge stated that $30,000 was in arrears.

31. Miss Van der Eb relied on the fact that the husband had disputed in his evidence that he had ever been in arrears. As already indicated above the husband had denied in his letter dated the 30th March 1989 that he was in arrears and claimed to have overpaid the wife at that time by $800. In paragraph 10 of her affirmation filed on the 19th October 1989 the wife claimed that the husband was $7,600 in arrears and identified the unpaid payments as being those due on the 1st December 1988, and on the 1st February, 1st August and 1st September 1989 respectively. The husband denied these arrears in paragraph 10 of his affirmation made on the 18th November 1989. He referred to his letter dated the 30th March 1989 but did not identify any later payments. At the hearing the wife's solicitor had pressed the unreliability of the husband in making payments of interim maintenance.

32. Mr. Mitchell for the wife accepted that the judge's figure of $30,000 arrears of interim maintenance payments could not be sustained. However he stressed that the husband had disregarded Judge Blackwell's original direction to pay the maintenance payments into the wife's Hongkong Bank account. Furthermore when obtaining leave to appeal on the 31st July 1990 the husband had accepted the condition that arrears of maintenance be paid off. Mr. Mitchell informed the court from the bar that he understood the amount of arrears to be about $15,000 but there was still a dispute as to the actual amount. He submitted that there must have been arrears at the date of the hearing because since leave was granted the husband had paid $7,500 on the 7th August 1990, in respect of arrears. Thereafter he had made a payment of $3,000 on the 31st August, $1,000 on the 11th September and another payment of $3,000 on the 20th December 1990. It may be that these later payments are attributable to Judge Beeson's order.

33. We conclude that although the quantification of the arrears by the judge has been shown to be excessive, events since the hearing have shown that the husband has admitted that he was in arrears when given leave to appeal on the 31st July 1990 and that he subsequently paid at least $7,500 in respect of arrears. In addition, if and to the extent that the husband's evidence of cash payments is to be believed, the husband has seen fit to disregard Judge Blackwell's original order regarding the manner in which the payments were to be made. This has contributed to the uncertainty of the wife's position.

34. The fourth finding related to the cockloft in the husband's business premises which was occupied by his nephew and his family. The wife's evidence was that the husband had let the cockloft to two families of relatives for $1300 per month. The husband's evidence was that his nephew whom he employed in his business occupied the cockloft with his wife and two sons under licence under the conditions of the nephew's service. The relevant finding of the judge was stated in the grounds of appeal to be that the husband had given no explanation as to why his nephew was given free accommodation in his work place. It was contended that this finding overlooked the explanation expressly given in the evidence of the husband in paragraph 18 of his affirmation made on the 18th November 1989 where the husband had affirmed that his nephew and family occupied the cockloft as part of his terms of employment in the husband's business.

35. The actual words used by the judge were not as stated in the grounds of appeal. In their context we do not understand the judge's words to have the meaning attributed to them by counsel for the husband. The words are underlined in their context in the following passage of the judgment:

36. Our understanding of this passage is not that it betrays a failure by the judge to appreciate that the nephew's rent-free occupation of the cockloft was attributable to his terms of service, but that it was intended to indicate by the use of the word "priority" that the husband had failed to explain in his evidence why the nephew should be permitted by the husband to continue to occupy the cockloft as part of his terms of service even at a time when the husband had no home of his own. This understanding of the relevant passage absolves the Judge from the evidential blunder alleged against her. We accept that it leaves open the possibility that the husband might, if he had been cross-examined by the wife's solicitor, have given an acceptable explanation for the husband's view that the cockloft was not available to him as a residence. We have therefore assumed for the benefit of the husband, for the purposes of this appeal, that it may not have been legally or commercially practicable for the husband's nephew and his family to be ousted from the cockloft by the husband in order to provide a home for himself.

37. The fifth finding was made in two different passages of the judgment, to the effect that the husband's business was substantial and that it employed three people.  It was contended on behalf of the husband that this finding was contrary to the evidence of the husband (supported by his tax returns for three years) showing income insufficient to attract tax, by his evidence of cash flow problems preventing him from making interim maintenance payments, by his evidence of the necessity to close his business when he had a hernia operation in August 1989 and by his evidence that he employed only one regular employee (his nephew) and one casual worker with the occasional addition of a second casual worker on festival days.

38. We accept the validity of this criticism of the judge's description of the husband's business as being substantial. By any standards it was a small business and, on the husband's evidence it did not employ three employees full time. However we equally accept Mr. Mitchell's submission that the important point is that there was evidence adduced by the husband himself from which it was reasonably to be inferred that the business was viable. The trend of the profit figures (set out above) in the three tax returns was upwards, the bank accounts of the business were healthy, the business could support the husband and his family and it enabled him to pay off the interest and capital of the $100,000 mortgage on the flat in about 2 1/2 years.

39. The last mentioned fact was relied upon by the judge to support her view that the husband had not been frank with the court as to his assets and earnings. We have formed the same view in the light of the husband's evidence. There are other unmistakable indicators that the husband was able to assume and discharge relatively substantial liabilities over and above his normal living expenses. Thus he has incurred an annual liability of $11,228 in respect of an insurance policy. He made regular trips to China, albeit trips of short duration. The evidence obtained from the Immigration Department is not complete, but it indicates that in 1988 he made 42 departures. According to his reply to the wife's questionnaire he took about $3-400 with him on each trip. Again he indicated in his affirmation made on the 18th November 1989 that he was prepared to raise $175,000 on a mortgage of the flat to enable him to buy out the wife's interest in that property.

40. These are all important indicators of financial viability and liquidity which do not enable the court to quantify the husband's genuine financial worth but provide support for the judge's view, which we share, that his disclosure of his true financial position was not frank or complete. The fact that the judge can be shown to have described the husband's business in exaggerated terms ceases to be of decisive significance in the light of these factors.

41. The sixth finding was that the wife was in poor physical health and unable to earn more than minimal wages while the daughter remained at school. On behalf of the husband the complaint is made that this finding was made in the face of the evidence of the husband in his affidavit made on the 18th November 1989 that the petitioner was working in two establishments and that her health was no worse than his own. This is clearly a valid criticism, but it seems to us that the important question here is the actual earning capacity of the wife. Her solicitor conceded to the judge that she had a monthly earning capacity of $2,700. This was more than the $2,000 per month which the husband's evidence showed her to be earning when he made his affirmation on the 18th November 1989. In fairness to the husband we have borne the wife's admitted earning capacity (to which the judge made no quantified reference) in mind below.

42. Overall we are unable to accept that any of the erroneous findings established by the husband are so serious in themselves as to require this court to set aside the property transfer order in favour of the wife. However, when considering the second and third grounds of appeal and the respondent's notice we have borne in mind the factors in favour of the husband which we have identified above and to which it may be said that the judge should have given weight.

43. Having found, as was conceded on behalf of the wife, that the periodical payments in favour of the wife cannot be sustained, it seems to us that there is no further substance in the second ground of appeal. The fact that the judge did not in terms refer to the marriage as a 5 year childless marriage does not mean that she did not so regard it. Furthermore those facts have to be considered, not in isolation, but together with all the other relevant factors under section 7 of the Ordinance. These were, in our opinion, identified in the respondent's notice.

44. Both parties (and the daughter) had a need for a home. The marital history was such that the wife could not reasonably be expected to continue to live in the same flat as the husband. He had managed to get her consent to return to the flat and remain there from the 12th October 1988 until the 31st July 1990 but the contiguity of the parties must have been very difficult and it is not surprising that the wife complained, in her affirmation filed on the 19th October 1989, of stress and pressure resulting from the husband living in the same premises.

45. The wife's age and absence of capacity to earn more than a very modest monthly wage of about $2,700 made it impossible for her to house herself and pay her basic living expenses on anything approaching even the modest standard of living she had enjoyed during the marriage. Her only capital asset was her interest in the flat the realisation of which would necessarily involve giving up her home. The husband's record in the matter of paying interim payments rendered it unrealistic to require him to make periodical payments to meet her reasonable housing and living requirements. His evidence indicated that he considered that it would be reasonable for him to buy out her interest in the flat for $175,000 and leave her to work for a living. That would clearly be inadequate and unreasonable and would mean that he would be making no provision at all for her, because her interest in the flat was already realisable by her under the Partition Ordinance.

46. In our opinion the reasonable requirements of the wife, who contributed to the welfare of the family by her work, initially in the business and subsequently in paid employment, and by caring for the family, would be best and more securely met by affirming the property transfer order. The result would be that she would have the security off home.

47. In her affirmation filed on the 19th October 1989 she gave her monthly expenditure as $5,200 made up as follows:

At the hearing the wife's solicitor put her reasonable expenditure at $4,700, presumably because he accepted that item (a) could not be included. It was accepted on appeal that the daughter, who was born on the 20th April 1973 was not suitable for further education and that provision for her by the husband beyond that made in the order was not required. If item (b) is therefore deleted the wife's monthly expenses are reduced to $3,200.

48. The wife's monthly earning capacity was admitted to be $2,700. She proposed, if the property order were made, to let one of the rooms in the flat for $1,000 per month.   This would mean that she can be taken to have a prospective monthly income of $3,700, which would cover her expenses and leave a margin of $500 for her to pay towards the daughter or her parents. On this basis the wife will be living in reduced circumstances but will have the security of a home and a capital asset.

49. The husband on the other hand was in a relatively strong financial position. He gave his age as 52 in his affirmation made on the 18th November 1989. We would not therefore accept his statement in his submission to the judge below that he was nearly 60 at the date of the hearing six months later. In our opinion the husband is not to be regarded as in declining health.  He had given evidence of his hernia operation, but there is no evidence that he is not in reasonable health for a man of his age.

50. On his own evidence he earned $74,937 in the year ending the 31st March 1988. That amounts to $6,244 per month. He provided no details of his subsequent earnings. For the reasons we have given above we consider that it is reasonably to be inferred (although it is not possible to arrive at any quantification) that his state of liquidity and sources of income exceed what he was prepared to admit in his evidence.

51. If the property transfer order were upheld the husband would lose his home. This would clearly cause him substantial loss and inconvenience. It is understandable that he has fought hard to avoid this, particularly as he regards the flat as a capital asset acquired by him which represents the fruits of his business activities. The order would leave him in the position where he would either have to rent, or acquire on mortgage, another home, or come to terms (involving financial adjustment adverse to him) with his nephew for the surrender of the cockloft in the business premises.

52. On the other hand we are in no doubt on the evidence before the court that the husband, who would in future be free from the obligation to make any maintenance payments to the wife or daughter, would be in a position to house himself and maintain a reasonable standard of living. He has a viable business and his earning capacity, despite his age, far exceeds that of the wife. The husband's real loss and inconvenience will, in our opinion, be balanced by the advantage of a clean break solution to his short marriage. He should not, in our opinion, be deprived of this advantage by any nominal order for maintenance in favour of the wife.

53. As regards the third ground of appeal, we have already dealt with the contention that the judge was wrong to say that there had been no application to cross examine by either party. We agree with the contention that the judge erred in law by not explaining to the husband that he was entitled to apply to cross examine the wife. It is the duty of the court to assist an unrepresented party, who is at a considerable disadvantage, by informing him of his rights. It is also the duty of counsel or solicitor for the represented party, consistently with his duty to his own client, to assist the unrepresented party.  This was not done in the present case.

54. In appropriate circumstances we would regard this omission as sufficiently fundamental to entitle the husband to a re-trial. However, in the present case, where the legal costs already amount to about $90,000, we cannot accept that it could be to the advantage of the husband to order a re-trial with the further burden of costs occasioned thereby and by a possible subsequent appeal: c.f. the emphasis by Booth J. (in a judgment delivered with the concurrence of the President of the Family Division) in Evans v. Evans in (1990)140 NLJ 291 on the need for legal advisers to ensure that costs in these cases do not absorb a disproportionate amount of the assets available to be divided between the parties. Miss Van der Eb gave no indication of the matters upon which the husband or counsel on his behalf might cross examine the wife. To the extent that such matters are included in the first ground of appeal, we have in this judgment made assumptions in favour of the husband. Furthermore assuming that the wife could be effectively cross examined and that at a re-trial the husband's evidence on all disputed matters were to be believed, we cannot envisage that the court would make an order more favourable to him than this court proposes to make on this appeal. It seems to us that the case cries out for a clean break solution which can only reasonably be achieved by the proposed order.

55. We therefore allow this appeal to the extent only of setting aside the order for periodical payments to the wife. There will be an order nisi that the parties are to bear their own costs of the appeal (the wife's costs of the appeal to be the subject of taxation under the Legal Aid Regulations) and that the order as to costs below shall remain undisturbed.

Representation:

Miss Van der Eb (M/S Liu, Chan & Lam)for Appellant/Respondent

Mr. Neil Mitchell (M/S K.B. Chau & Co.) for Respondent/Petitioner