Cdgh v. Dgh, Jr

HCMP 2809/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2809 OF 2013

(ON AN INTENDED APPEAL FROM FCMC NO. 6690 OF 2009)

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BETWEEN

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

1.We are concerned with a summons by the wife for leave to appeal against the judgment of Deputy High Court Judge B Chu on 29 October 2012 (“the Judgment”) in her application for ancillary relief and the judge’s ruling on costs on 20 May 2013 in the ancillary relief application (“the Costs Ruling”). The judge refused leave to appeal in a ruling handed down on 8 October 2013 (“the Ruling”).

2.The wife renewed her application to this court for leave to appeal by a summons issued on 22 October 2013.  Pursuant to Order 59 rule 2A, statements in support of and in opposition to the application were filed by the wife and the husband.  They took the form of written submissions by Mr Coleman, SC on the wife’s behalf and Mr Pilbrow, SC on the husband’s behalf.

3.In his submission, Mr Coleman submitted that “should the Court not be minded to grant leave to appeal on the papers, the Wife would request an oral hearing”.  We firmly reject this submission.

4.Unlike the situation in an application for leave to apply for judicial review (Order 53 rule 3(3) provides that the judge may determine the application without a hearing, unless a hearing is requested in the notice of application for judicial review), this court has an unfettered discretion under Order 59 rule 2A(5) whether to determine the application for leave to appeal on the basis of written submissions only or direct an oral hearing.  Further, by rule 2A(8), where this court determines the application on the basis of written submissions only, it may, if it considers that the application is totally without merit, make an order that no party may under rule 2A(7) request the court to reconsider the determination at an oral hearing inter partes.  It is clear the fact that the application is likely to be refused is not, in itself, a reason to direct an oral hearing.

5.The discretion whether to hold a hearing under Order 59 rule 2A(5) is to be exercised with regard to the underlying objectives in Order 1A rule 1.  Among them: to increase the cost-effectiveness of any practice and procedure, to ensure that a case is dealt with as expeditiously as is reasonably practicable, to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings, to ensure fairness between the parties, and to ensure that the resources of the court are distributed fairly.

6.Having regard to these underlying objectives, we think it entirely appropriate to determine the wife’s application on the basis of written submissions only.  If the discretion to hold a hearing were to be exercised if and when the court is not minded to grant leave, as Mr Coleman has urged us to do, this would be inimical to the underlying objectives.

7.For leave of appeal to be granted, the wife is required to satisfy section 63A of the District Court Ordinance, Cap 336, namely, that her appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why her appeal should be heard.  The wife relies on both limbs.

8.The principles on granting leave to appeal are well established.  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” (SMSE v KL [2009] 4 HKLRD 125 at §17).

9.Annexed to the summons for leave to appeal are two draft notices of appeal.  The draft notice in respect of the appeal against the Judgment is an eleven-page document, with seven grounds in all.  The other draft in respect of the appeal against the Costs Ruling is a three-page document, with three grounds.  The grounds of appeal are sufficiently detailed for the court to be apprised of the arguments intended to be raised.  Besides, they have been considered in some detail by the judge in the Ruling.

10.In these circumstances, it would not be helpful to the court dealing with the leave application to be provided with a detailed and lengthy submission of counsel.  Mr Coleman’s submission to this court ran to 20 pages, which would not be out of place if this court were hearing the appeal.  As we are dealing with a leave application, and our only concern is whether the test for granting leave is satisfied, a full and comprehensive submission is inappropriate, quite apart from the fact that this is contrary to Practice Direction 4.1 Part B §15.  For present purposes, counsel should concentrate on the main grounds of the intended appeal, and just refer the court to the other grounds which have been comprehensively dealt with in the draft notice of appeal.

11.We refer to our decision in CWG v MH & Ors, HCMP 2409/2013, 9 January 2014, §§9 to 11, in which we asked litigants to take note of the Practice Direction and avoid the proliferation of bundles and lengthy submissions for leave applications.  If it had not been for the fact that the bundles and submission in this application were lodged before our decision in CWG v MH & Ors, they would have been returned to the wife’s solicitors unread, as a very large part of the bundles (five lever arch files in all) is not necessary for the present exercise.  We wish to give fair warning that in future if solicitors and counsel should lodge bundles and submissions without regard to the Practice Direction, the court may consider making a wasted costs order on its own motion pursuant to Order 62 rule 8A.

12.In respect of the intended appeal against the Judgment, seven grounds are advanced by the wife.

13.Two main points are taken in Ground 1.  The first point (that in accepting the valuation of the wife’s expert of the Chateau at €1.8 million plus or minus 5%, the judge was wrong to adopt the low point being minus 5% and set the value at €1.7 million) is not capable of sustained argument.  Quite apart from the reason given in the Ruling at §9 (with which we agree), the judge’s assessment is within the ambit within which reasonable disagreement is possible.  We see no reasonable basis to disturb her assessment.  The second point relating to the deduction of notional costs of sale and capital gains tax is a matter premised on the judge’s evaluation of the evidence and the weight to be attached to particular matters.  That another tribunal might have given different weight to such or other matters will not afford a basis to interfere with the judge’s discretion.  We see no error in her approach and the decision she reached having regard to “all the circumstances” (the Judgment, §83).  Nor do we agree with Mr Coleman that matters of general importance are raised by this point such that it should be considered by the appeal court.

14.As for Ground 2, the judge’s reasons for adopting an across-the-board deduction of 20% on the contents of the Chateau (the Judgment, §§122 to 124) are unassailable.

15.Ground 3 relates to the exclusion of the HSBC shares from the matrimonial property for division, it was found by the judge that 60,000 shares were a gift to the husband from his mother and 4,052 shares were accruals from the 60,000 shares (the Judgment, §§35, 41 and 150).  We do not consider any of the grounds advanced on behalf of the wife are sufficient for the appeal court to interfere with the findings of fact of the judge.  We see no material contradiction in the husband’s evidence.  Although the judge mentioned in the Ruling at §16 that the shares were received by the husband “after” the end of the marital relationship, it is clear from the matters set out in the Judgment at §150 the actual finding was that the shares were received by the husband “towards” the end of the parties’ marital relationship.  Nor is there any proper basis to interfere with the exercise of the judge’s discretion to exclude the shares from equal division.

16.Ground 4 is a complaint that the judge failed to take into account the evidence which demonstrated that the husband had failed to make full and frank disclosure and a contention that she should have found there is an undisclosed source of funding of the husband.  We have considered those parts of the transcript and the wife’s second affidavit to which our attention was drawn, and the matters put forward in Mr Coleman’s submission in Grounds 4 and 5.  We find no substance in this complaint, and no basis to interfere with the judge’s finding of fact that notwithstanding the omissions in the initial Form E of the husband and his piece-meal disclosures, there was insufficient evidence that he was deliberately concealing his assets and income (the Judgment, §23).  We agree with the judge for the reasons given in the Ruling at §§19 to 21 that the wife’s contention must be rejected.  We do not agree with Mr Coleman there is any matter of general importance arising out of this ground that should be considered by the appeal court.

17.Ground 5 is a complaint that the judge failed or refused to deal with the husband’s serious material non-disclosure save in the context of costs, so to some extent it is dependent on the success of Ground 4.  It is argued by Mr Coleman that the judge should have found there is sufficient evidence of deliberate concealment.  As we see no basis to interfere with the judge’s decision to decline to find deliberate concealment of assets or income on the evidence, likewise we do not find it arguable that the judge was in error in holding that the unsatisfactory disclosure of the husband should relate to costs only.

18.Ground 6 relates to the complaint that the judge had not made any ‘add backs’ on account of such sums of matrimonial property improperly used by the husband to the wife’s detriment.  The reason for this is that there was no finding in the Judgment of financial misconduct, or extravagant or reckless frittering away of assets on the husband’s part (the Ruling, §25).  Again this is a factual finding the appeal court would not interfere with in the absence of cogent reasons.

19.Ground 7 attacks the finding of fact that there is no sufficient evidence the husband will be receiving any significant inheritance in the foreseeable future (the Judgment, §138).  We do not think there are any or any sufficient grounds for intervention.

20.As for the intended appeal against the Costs Ruling, the judge had reviewed comprehensively the procedural history, the conduct of the parties, the findings in the Judgment, and noted the matters for which she declined to make any finding before she arrived at her decision not to award indemnity costs against the husband.  There is no basis to interfere with the judge’s exercise of discretion.

21.We decline to give leave to appeal against the Judgment and the Costs Ruling as the threshold requirements in section 63A of the District Court Ordinance are not met.  We make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing as the leave application is entirely without merit.

22.We make an order nisi that the wife should pay the husband’s costs of this application, to be taxed if not agreed in the ordinary way.  Any party seeking to vary the order nisi shall lodge a written submission within seven days hereof, with leave to the other party to reply in writing seven days thereafter.

Written submissions by Mr Russell Coleman, SC, instructed by Hampton Winter & Glynn, for the petitioner (applicant)

Written submissions by Mr David Pilbrow, SC instructed by Howse Williams Bowers, for the respondent (respondent)