Hannelore De Lasala-debring v. Ernest Ferdinand Perez De La Sala

HCMP 1029/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1029 OF 2013

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Between

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REASONS FOR DECISION

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1.There is before this court a Summons issued by the defendant for, inter alia, an order that these proceedings be continued as if begun by writ (“Summons”). 

2.This is an usual action which was commenced by way of an originating summons (“OS”) issued on 10 May 2013.  The parties were married many years ago.  Briefly, in these proceedings the plaintiff is seeking to impeach a consent order (“Order”) made some 44 years ago in a set of matrimonial proceedings by Mr Justice Briggs on 23 May 1970.  The Order provided for the financial arrangement in favour of the plaintiff and the child of the marriage.  It is alleged by the plaintiff that her consent to the Order was obtained by the fraud of the defendant in misrepresenting his financial position. 

3.The issue here is quite simple and a matter of what is the appropriate procedure to be adopted for the expeditious and just resolution of this dispute.

4.It is common ground, and I accept as correct, that an OS can be used as the procedure for impeaching an order of the court.  Whether an OS should be so deployed must, I believe, depend on the substance of the complaint. 

5.It is trite that an OS is generally an inappropriate procedure where there is substantial dispute as to facts.

6.It is equally trite that allegations of fraud must be formulated with exactitude and sufficient particulars so that the same can be met fairly and squarely.  I should add that actions involving allegations of fraud are by their nature hotly contested.  Properly formulated pleadings are necessary for the court to exercise control over such actions.

7.Bearing in mind the points made in the two preceding paragraphs, I believe that it will normally be inappropriate to initiate an impeachment action based on fraud by way of an OS. 

8.Turning to this particular case, I agree with Ms Tong, who appeared for the defendant, that the evidence filed by the plaintiff in support of her case lacks precision and it would be unfair to the defendant to have to answer such a case. 

9.I also bear in mind three particular features in this case.  Firstly, the alleged fraud took place many years ago and it is all the more important for the plaintiff to put her house in order and to advance a properly conceived case, including the appropriate relief.  In this regard, I should mention that back in 1976 the plaintiff had attempted to set aside and vary the Order on the basis of fraud allegedly committed by the defendant. Those proceedings went all the way to the Privy Council and were ultimately unsuccessful (see de Lasala v de Lasala [1980] AC 546).  In the judgment of the Privy Council, the strength of the plaintiff’s case was the subject matter of adverse comments (at p 561 E to G).

10.Secondly, the case now advanced by the plaintiff is premised upon new documents which she says have been brought to her notice recently.  In short, these are evidence filed in a set of proceedings in Singapore.  Those proceedings concern a dispute between the defendant and 6 family companies, which are apparently owned by members of the defendant’s family, over various assets.  The trial of those proceedings is currently on foot. 

11.Mr Coleman SC, who appeared for the plaintiff, submitted that the plaintiff’s case is a simple one premised upon the defendant’s own evidence filed in the Singaporean proceedings.  I believe that is an over simplistic view of these matters.  As Ms Tong has pointed out, one cannot simply say that the plaintiff had an asset without any regard to the liability incurred by him in acquiring the same.  It is essential as a matter of fairness for the plaintiff to identify the assets which she says were hidden from her by the defendant at the material time.  It must be said that any person would find it quite difficult to recount what he owned 44 years ago.  Further, without proper identification of issues, there will be no proper parameters for the trial of this action.

12.Thirdly, there is a concern on the part of the plaintiff about the delay which will result from granting this application. Such concern is not unreasonable given that the parties are no longer young. On the other hand, this is the second attempt to impeach the Order which has been brought very late in the day.  Further, there would have been no delay if these proceedings had begun by way of a writ. 

13.For these reasons, I granted the order sought in paras 1 to 4 of the Summons as amended.  The costs of and occasioned by this Summons were awarded to the defendant to be taxed if not agreed. 

Mr Russell Coleman SC, instructed by Howse Williams Bowers, for the plaintiff

Ms Sara Tong, instructed by Clifford Chance, for the defendant