Tl v. Ysw also known as Wsy
Read the full judgment text of FCMC 13455/2011 on BabelCite. This Family Court judgment was delivered on 25 March 2014 before Deputy District Judge Grace Chan.
Family law – Ancillary relief – Leave to appeal – Costs – District Court – 81-year-old husband vs 56-year-old wife – 10-year marriage – Lump sum order of HK$16,970,000 – Reasonable prospect of success test – Costs order variation – Leave to appeal refused – Costs order varied to 80% – Stay of execution refused
Legal issues: Leave to appeal · Variation of costs order nisi · Stay of execution
Outcome: Leave to appeal refused; stay of execution refused; costs order nisi varied to require Respondent to bear 80% of Petitioner's costs; Petitioner awarded 75% of costs of these applications.
Cited by 3 cases · Cites 5 cases
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FCMC 13455 /2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 13455 OF 2011 ----------------------------
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------------------------------------- DECISION ------------------------------------- Introduction 1.On 3 December 2013, I handed down my judgment (with corrigendum) (“Judgment”) in respect of the 81-year-old petitioner husband’s claim for ancillary relief against the 56-year-old respondent wife, whereby, in essence, I accepted the husband’s case that the length of the marriage lasted for almost 10 years and that the wife’s current assets sourced mainly from the husband but not her maiden family. I rejected the wife’s proposition that the sharing principle did not apply to this case at all and that the husband’s ancillary relief claim should stand dismissed. I decided that the parties’ wealth should be shared equally, but after taking into account the husband’s open proposal, I made an ancillary relief order that the wife should pay a lump sum of HK$16,970,000 to the husband as a clean break financial arrangement between them. The effect of this order represents that the husband gets about 39% of the matrimonial pot. 2.In the same Judgment, I made a costs order nisi that the wife shall bear the husband’s costs of the ancillary relief proceedings (including all costs reserved). 3.The wife now makes the following applications before me:
4.The basic facts of the parties and the marriage were already set out at paras 1-16 of the Judgment and I do not propose to repeat them here. For convenience, I would adopt herein the abbreviations used in the Judgment. Applicable legal principles on leave to appeal 5.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard. 6.The wife’s application for leave to appeal is premised on the limb of “reasonable prospect of success”. The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011. 7.Where there is an appeal against primary finding of facts, the question is whether the Court of Appeal is satisfied that the conclusion on the facts made by the trial judge was plainly wrong: Ting Kwok Keung v Tam Dick Yuen & Others (2005) 8 HKCFAR 387. 8.Where there is an appeal against the exercise of discretion, the test is whether it can be shown that the trial judge acted under a misapprehension of fact in that the he/she either gave weight to irrelevant or unproven matters or omitted to take into account matters that are relevant: Blunt v Blunt [1943] AC 517. The wife’s Proposed Grounds of Appeal 9.In her 15-pages of draft notice to appeal, the wife proposes to appeal against the whole of the Judgment and my findings on all the issues, more particularly on the following:
10.The wife argues that had I made correct findings on the above issues, I would and should have concluded that there should be a departure from the equality yardstick in this case, to the extent that she should keep all her assets without sharing them with the husband at all. In effect, it would mean that she should retain about 95% of the total assets set out in para 93 of the Judgment. Length of Marriage 11.On this issue, Mr Jonathan Mok, solicitors for the wife, argues that I failed to place weight on her evidence or failed to take into account, among other points, the following:
12.All the above points were examined/cross-examined in the trial and submission made thereon by the parties. Therefore, I have fully considered them and set out my reasoning of rejecting the wife’s case in paras 25 – 43 of the Judgment. I do not propose to repeat them here. However, I do wish to emphasize 3 points as follows. 13.First, even though the parties did not physically live together from August 1997 to 1998 (when the wife lived with her mother at the maiden home) or the husband might not have come back to the wife each day due to his work (while the lived at Island Place and Tanner Garden), it would be over-simplified, in my view, to discount these periods from the duration of marriage. I repeat what I have said in para 36 of the Judgment and take the view that each couple has their own way of conducting their marriage (See: Z v X [2012] 5 HKLRD 791). 14.Second, it is very telling of the wife to describe One Silversea (the last venue where, according to the husband, the parties lived together immediately before separation) as the “matrimonial home” in all of her Form Es, which is a clear and material contradiction to her own case of “lodger” allegation. 15.Third, the husband did explain why he rented a 2nd unit at Metropolis[2]. His explanation was spontaneous, logical and plausible. I cannot see why I should not accept this evidence. 16.Mr Mok also submits that while I have found that the Metropolis was the matrimonial home between June 2003 and February 2006 (see para 80 of the Judgment), I have failed to make an express finding if the parties lived together therein. He argues that if the husband had really lived there, he would not have got the details (eg tower and floor nos of the Metropolis) wrong in his affirmation[3]. 17.As I have pointed out to Mr Mok during his oral submission in this hearing, there is a typo in para 80 of the Judgment. In my ruling, the Metropolis was the matrimonial home between June 2003 and February 2004 (not 2006), because I have said in para 43 that I accepted the husband’s evidence on the length of marriage.[4] It is his evidence that he accompanied the wife to view potential apartments of the Metropolis[5] (this was not challenged by the wife in the trial). It is his affidavit evidence that the Metropolis was bought “as the home for [him] and the [wife]”.[6] It thus goes without explicit saying that the parties lived together at the Metropolis during the relevant period. It is true that the husband gave a different floor and tower nos of the Metropolis in his affirmation from that of the land search records[7]. But, according to my finding, the parties stayed at the Metropolis almost 10 years ago and for a rather short period of time. Vague or mistaken memory is not impossible, especially to an 81-years-old man. 18.Mr Mok further submits that there is no logical basis for me to conclude that the separation took place in May 2007, when the living arrangements of the parties were apparently unchanged from September 2005 to July 2011. I do not agree. The evidence of the husband, which I have accepted, is clear that although living under the same roof at One Silversea, the parties lived apart since or about May 2007, because they did not have sex and lived in separate bedrooms; seldom talked to each other; did not go out to eat together or share any common interest or lifestyle.[8] 19.As to Mr Mok’s submission on the lack of or “new” evidence on the part of the husband in relation to the monthly payment to the wife as household and personal expenses, I repeat the husband’s background in paras 8 and 9 as well as what I have said in para 35 of the Judgment. 20.Mr Mok attempts to work out, by retrospective calculation, that the husband could not have sufficient funds to pay the alleged maintenance to the wife.[9] However, this line of submission was not made before me in the trial; the crux of the wife’s then submission centred on the “new” and/or the lack of documentary evidence of the husband. Besides, Mr Mok now purports to adopt the monthly expenses in the husband’s Form E as at December 2011 (ie HK$28,081) in order to work out his total expenses between July 2003 and 1 December 2011 (spanning over a period of some 8.5 years), which in my view and with respect to Mr Mok, is prone to over-generalisation and thus cannot stand up to closer scrutiny. Mr Mok’s submission on the husband’s financial resources has also overlooked the latter’s evidence that he also relied on sale proceeds in shares trading.[10] 21.There are other minor points made by Mr Mok in the hearing, which I do not propose to repeat them here. Suffice it is for me to say that I have considered them all; I am not persuaded by his argument. 22.To conclude, I do not see any prospect of success on this ground. Source of the wife’s asset 23.In the trial, I rejected the wife’s case that she received over HK$20 million by way of cash gifts[11] given by her late mother or her brothers prior to or during the marriage (save to the extent of HK$1.05 million, HK$300,000 and HK$355,000)[12], and accepted the husband’s evidence that he had gifted the wife with millions of shares or cash prior to and/or during the early years of their marriage. 24.Set out in about 3 ½ pages in her draft notice of appeal[13], the wife’s major argument essentially boils down to her complaint that I applied a different (and thus unfair) standard to the evidence of the respective parties and more particularly the following:
25.I have set out in para 44 – 50 of the Judgment of the wife’s position on the source of her assets, and in paras 51 – 64, in particularly para 58 as to why I did not accept the wife’s documentary evidence. I stress that the analysis on the wife’s evidence including her documentary evidence was carried out independently of the husband’s evidence. 26.The analysis on the husband’s evidence is set out separately in paras 65 – 77 therein, especially paras 72 – 77 on the analysis of his oral evidence by applying the credibility test identified in para 71 of the Judgment. I concluded in para 77 that having considered all evidence, including observing the demeanour of the witnesses while in the witness box, that his evidence should be believed. 27.Mr Mok says in this hearing that I failed to consider the inconsistency of the husband’s affirmation and oral evidence. For example, in his 2nd affirmation, the husband deposed that he gave HK$1 million to the wife prior to marriage[14], but during trial he said that he gave no less than HK$5 million shares/cash to the wife prior to marriage. Submission on such discrepancy was made during the trial by the wife. I have considered it and given my view in paras 69 and 70 of the Judgment. 28.Mr Mok submits that even on the husband’s own case, his evidence is unable to pass the threshold of the credibility test, in particularly the 2nd limb of the test. 29.He points out in his submission[15] the discrepancies between the husband and the land search records of the Metropolis, the Sorrento and One Silversea to show, inter alias, that there is a lurking doubt on whether the funds of purchase of these properties were really his funds. Similar submission, if not totally identical, was made by the wife in the trial. I had considered it and taken the view that despite the discrepancy, leeway should be allowed due to the husband’s advanced age. After all, a trial is not supposed to be a memory test. 30.He further argues that in the husband’s own case, he had given only about HK$11 million (HK$9 million of which was shares) to the wife by 1997, which, if without any income of the wife or gifts from her maiden family, would not have appreciated to almost $21 million in 2005 or further to $39 million in 2013. He says so because as at 10 October 2005, the wife was holding the 3 properties (the Metropolis; the Sorrento and a car park space; One Silversea) at the same time, which already cost her total outlay of about $8.76 million; she also made partial mortgage repayment to One Silversea over the years. The combined effect would mean that she would not have much funds left for additional injection into her shares account. Coupled with this, he submits that the shares market was still recovering from the Asian financial crisis in around 1998 and the SARS epic in 2003. Simply put, even if the husband’s alleged gifts from him to the wife was true, they could not have generated her wealth whether in 2005 or in 2013.[16] 31.All I would say is that this line of submission was not put forward to me by the wife in the trial. Further, the submission on retrospective projection of the wife’s asset as at 2005 is based on assumptions that were never canvassed during the trial. The submission also overlooks the well-known rapid rise in property value over the years. More importantly, even if (just assuming) the total amount of the husband’s gifts of cash/shares to the wife could not have generated her current wealth, thus leading to the conclusion that her current assets also consisted of cash gifts given by her maiden family, I am of the view that given this long marriage, the factor of source of assets has minimal effect on the application of the equality principle and the final distribution of their assets. 32.Hence, I do not think the wife has any reasonable prospect of success on this ground. Separate finance 33.In his submission, Mr Mok argues that I failed to make any findings on whether the parties kept separate finances, even though I identified it to be one of the issues in the Judgment. Yet, I have set out in paras 85 - 86 that given the findings on the length of marriage and source of assets, I took the view that the parties had become financially interdependent to each other. 34.I would add one more observation and it is this. If (just assuming) the parties really and truly kept independent and separate finances during their marriage so that the wife needed not to share her wealth with the husband, then I fail to appreciate her logic of asserting that the Tung Chung property (in the joint names of the husband and his youngest daughter born out of another relationship), be it in full value or half value, is a matrimonial property and should be included into the matrimonial pot for distribution (to be discussed further below). In so arguing, the wife is herself applying double standard to her and the husband’s assets. 35.I am not persuaded that the wife has a reasonable prospect of success on this ground. Any concealment of assets by the husband 36.On this topic, Mr Mok’s submission is essentially these:
37.I have explained in para 90 of the Judgment why I did not find any abnormality in the said sum of $279,030. I have elaborated in para 91 why I concluded that the said sum of HK$404,690 should be added back. 38.The wife also sets out her argument on the alleged hidden assets of the husband in para 12 of the draft notice of appeal. I have the following to say. 39.The criticism on the husband’s lack of documentary evidence dated back for almost 10 years ago, eg about the loss of investment in his native county, was raised in the trial and thus considered by me. I have said in para 88 of the Judgment that I accepted the husband’s case. 40.I repeat what I have commented in the above para 20 in relation to Mr Mok’s retrospective calculation of the husband’s monthly expenses between July 2003 and December 2011. 41.It is never the husband’s case that he paid directly for the purchase price or monthly mortgage repayments of the Sorrento or One Silversea.[19] Rather, his evidence was that these moneys were paid by the wife direct, but out of the gifts of shares/cash given by him to her prior to or in the early years of the marriage. 42.In the premises, I fail to say that the wife has a reasonable prospect of success on this ground. Needs of the parties 43.It is Mr Mok’s submission that I failed to make specific findings on the needs of the respective parties in the Judgment. 44.In the trial, the financial needs of the wife were not challenged by the husband. It is thus quite unnecessary to rule on this. 45.My view on the financial needs of the parties was set out in paras 94 – 96 of the Judgment. Essentially, I was of the view that this is not a “needs” case and due to the great wealth of the parties, there is more than sufficient funds to cover their needs. Failure to include full value of the Tung Chung property 46.The wife argues that I ought to have found that the husband used the matrimonial property to purchase the Tung Chung property and thus full, instead of half, value of it should be taken into account. 47.As I have already pointed out to Mr Mok in this hearing, in computing only half of the value of Tung Chung Property, this court simply relied on the joint financial statement dated 13 September 2013 duly signed by both counsel for the respective parties and submitted to this court during the trial. The wife is thus bound by it. Mr Mok fairly indicated that he did not have further submission to this. 48.That said, this ground of ground of appeal does not have any reasonable prospect of success. Conclusion on the leave to appeal 49.Due to the matters set out above, I am not satisfied that the wife’s proposed grounds of appeal show any realistic prospect of success. Her leave to appeal is refused. Application to vary costs order nisi 50.I shall now turn to deal with the wife’s application to vary the costs order nisi that she is to bear the whole of the husband’s costs of the ancillary relief trial (including all costs reserved). She now seeks a costs order that certain deduction should be made in her favour to reflect the circumstances of the case set out below:
51.The husband opposes to the wife’s application to vary the costs order nisi because:
52.Neither party has provided any authority to substantiate their argument on costs. Discussion 53.It must be a common ground of the parties that prima facie costs should follow the event. In the time-tested family case of Gojkovic v Gojkovic (no 2) [1992] 1 All ER 267, Bulter-Sloss LJ said at 271 that,
54.In EJB v CJB [2011] 5 HKLRD 508, Hartmann JA (as he then was) made the following observation at para 133:
55.In F v F (No 2) [2003]3 HKLRD 976, Hartmann J (as he then was) emphasised at para 22 that,
56.In Commissioner of Inland Revenue v Hit Finance Ltd (Judgment on Costs), FACV Nos 8 and 16 of 2007 (date of judgment: 26 June 2008), Bokhary PJ (as he then was) stated that,
57.Applying the above principles to our case, given the great wealth of the parties (approaching HK$50 million), there is clearly ample fund available to satisfy the costs order made by the court. The husband is the real winner of the case and his open proposal has been made an award of this court. He had not caused a significant increase in the length of the proceedings by raising issues on which he did not succeed. 58.I do not accept that deduction should be made for the wife on the ground that she won partially on some issues, because the case law is clear that costs were not determined by dividing litigation into quantifiable subjects and figures (F v F (No 2)) (supra). 59.However, it is true that on the 1st day of the trial, the husband has given some oral evidence which was not set out at all or in a detailed manner in his affirmations, thereby prompting counsel for the wife to seek a ½ day’s adjournment for taking instructions. In my view, such adjournment was not unnecessary or unfair in the circumstances. 60.Having considered the submission made by respective parties and all circumstances of the case, I am persuaded by Mr Mok for the wife that the costs order nisi should be varied to reflect what I have opined above. I shall thus vary the costs order nisi to the effect that the wife should bear 80% of the husband’s costs of the ancillary relief proceedings (including costs reserved). Stay of execution 61.Neither party has made any submission, in writing or orally, on the stay of execution in this hearing. 62.But since I have refused to give leave to the wife to appeal, I cannot see why I should grant a stay of execution of the order made in the Judgment. Costs of these applications 63.Of the 3 applications (contained in 2 summonses) taken out by the wife, she lost in her application for leave to appeal and stay of execution but partially won in her application for variation of costs order nisi. 64.A very substantial amount of time in the hearing was dedicated to the leave to appeal application. 65.In all the circumstances, I take the view that the husband should have 75% of the costs of this hearing. Conclusion 66.Due to the matters set out above, I shall make the following order:
Mr Paul Wu instructed by Messrs H M Tsang for the Petitioner (Husband) Mr Jonathan Mok of Mayer Brown JSM for the Respondent (Wife) [1] See para (g) on p3 of the draft notice of appeal. But according to the evidence, what the husband rented during the said period was Metropolis (都匯軒), not Island Place (港運城). See transcript [28/N-O] [2] See transcript [28/N-O] [3] See para 24 of the wife’s written submission [4] See also the husband’s case on the places where parties had lived since the marriage [5] See para 37 of the Judgment [6] See bundle [B1/616-36/§8] [7] See table in para 24 of the wife’s written submission [8] See transcript [207] – [208] [9] See paras 36 – 40 of the wife’s written submission; para 12 (d) of draft notice of appeal [10] See transcript [212/K-O] [11] Particulars of the cash gifts are set out in para 48 of the Judgment [12] See paras 63 – 64 of the Judgment [13] See paras 3 – 6 of the drafter notice of appeal [14] See bundle [B1/613/§3] [15] See paras 22-26 of the wife’s written submission [16] See paras 27-35 of the wife’s written submission [17] See para 12 of the draft notice of appeal [18] See para 12 of the draft notice of appeal [19] See para 12 (l) & (o) of the draft notice of appeal | |||||||||||||||||||
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