Nlh v. Ckc

HCMP 3152/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3152 OF 2013

(ON AN INTENDED APPEAL FROM FCMC NO. 4095 OF 2003)

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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving decision of the court) :

1.The parties were formerly husband and wife. A decree nisi based on the petitioner wife’s petition was granted on 7 January 2005. On 22 March 2006 Deputy Judge M C Jenkins, by way of ancillary relief, ordered the respondent husband to pay the wife a lump sum of HK$1,400,000 within four months and the wife to vacate the former matrimonial home within one month of the payment (‘the 2006 judgment’).

2.On20 August 2012 the wife sought leave to appeal against the 2006 judgment out of time.  The application was refused by Deputy District Judge Simon Lo on 4 March 2013.  The wife now renews the application before this Court. 

3.The history of the matter is sufficiently set out in the decision of Judge Lo.  It is not necessary to repeat it here.  The present application is a composite application for extension of time to apply for leave to appeal and also for leave to appeal.  

4.We will refuse to grant extension of time.  As the wife recognised, there is a delay of well over seven years.  The wife had offered no explanation as to why no steps had been taken to challenge the 2006 judgment earlier.  The wife merely stated that the husband had refused to pay her the judgment sum without providing any indication as to what steps she had taken in the past seven years to enforce the payment.  

5.There is also no reasonable prospect of success to the intended appeal.  The increase in the value of the former matrimonial assets cannot be a proper reason for lodging a challenge to the 2006 judgment at such a late stage.  The contention by the wife that the judgment sum (which now together with interests amounted to about HK$2,200,000) is not sufficient for her to buy an accommodation to live in is also not a sufficient reason for the 2006 judgment to be revisited.  The wife’s entitlement under the 2006 judgment was about 35% of the value of the total matrimonial assets.  This proportion was based on the law then applicable.  The law on distribution has, of course, been changed but this cannot be a proper basis for lodging a challenge to that judgment.  

6.Accordingly we will refuse the applications.  As the applications are totally without merit, we will order that the wife may not, under Order 59, rule 2A(7) of the Rules of the High Court (Cap. 4A), request an oral hearing of her applications.