Djm v. Lyb
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FCMC 17018 / 2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 17018 OF 2012 ----------------------------
---------------------------- Coram : Deputy District Judge A.N. Tse Ching in Chambers (Not Open to Public) Date of Hearing : 14 February 2014 Date of Judgment : 25 February 2014 ----------------------- J U D G M E N T ----------------------- 1.This is an application by the Respondent (Wife) for interim maintenance pending suit under section 4(1) (a) of the Matrimonial Proceedings and Property Ordinance (Cap.192) (MPPO) [See summons filed on 13 November 2013]. Issues 2.The Petitioner (Husband) is a school teacher with a fixed income. There was no dispute that the Wife has no permission to work in Hong Kong and hence has no income. In her Summons, the Wife sought a sum of $20,400 per month. This was subsequently reduced to $15,000 during the hearing. The Husband is willing to pay interim maintenance pending suit to the Wife. His original offer was $4,000 per month. This was increased to $10,000 per month. In addition, the Husband was willing to continue paying for the Wife’s rental and utilities. In other words, the only issue is the amount of the interim maintenance pending suit. Background 3.The parties were married in Japan on 25 May 2001. They have no children. The Husband is 42 years old and is a school teacher by occupation. The Wife is now 46 years old. She is a qualified aromatherapist and had work as a nurse in China, in the field of aromatherapy and as a waitress in Japan. She studied English in Australia for a number of years and is fluent in Japanese. 4.In about 2010, the Husband was employed by a school in Hong Kong and the parties came to Hong Kong in the latter half of 2010. The Husband is earning $60,309 per month (consisting of a salary of $43,450 and a housing allowance of $16,859) [See Husband’s Form E]. The Wife had and still has no permission to work in Hong Kong. 5.After their arrival in Hong Kong, the parties resided at Apartment in Tsing Yi. The Husband was responsible for the payment of rent and utilities. The rental is $9,800 per month. There appears to be no dispute that the utilities expenses are about $1,500 per month when the parties were residing together. 6.There appeared to be no dispute that the parties began to live separate lives even whilst they were living under the same roof. Whilst the Husband continued to pay the rental and utilities charges, he stopped paying any maintenance to the Wife. Since then, the Wife has had to rely on her savings and loans from her family to pay for her living and legal expenses. In the latter part of 2013, the Husband moved out but has continued to pay for the rental and utilities of the former matrimonial home. The Husband petitioned for divorce on 16 November 2012. Originally, a FDR was fixed to be heard in November 2013. However, as a result of the Wife’s application for interim maintenance pending suit, the FDR hearing was vacated and fixed for hearing on 17 March 2014. The Law 7.The present application is made under section 4(1)(a) of the MPPO. In respect of interim maintenance pending suit for the spouse, the Court may have regard to the conduct of the parties and factors set out in section 7(1) of the Ordinance. In practice, it will be unusual for the Court on an application for maintenance pending suit to be in a position to make a finding of fact sufficient, for example, to deal with conduct. The only governing principle is that the Court shall make such order as it considers reasonable in all the circumstances of the case. Consequently, such applications are approached on a broad brush basis [See Wong Wai Chi Susanna v Kim Min Sup Mark (CACV 263/98)]. 8.The finances in this case are very simple. A FDR has been fixed for hearing on 17 March 2014. Even if the FDR were to fail, the trial for ancillary relief is unlikely to last for more than one day and it is likely that a trial would be heard in a matter of months. In other words, the Court is asked to make provision for the Wife for the next few months. The Husband’s Resources and Expenditure 9.There is no dispute that the Husband’s monthly income is $60,309. He has cash deposits of over $2,200,000 in his bank accounts. In addition, he has stocks and shares of just over $12,000 and a boat worth just over $12,000. He is expecting a contract gratuity of $77,418 in August 2014 [See Husband’s Form E]. 10.In his Form E, the Husband claims that his monthly expenditure amounts to $35,118. This includes:
11.The Husband has been criticized for his failure to disclose his present address and failure to produce documents in support of his claim for his rental. I agree that there was no reason for the Husband’s failure to disclose his present address. The assertion in his Affidavit that his address was that of the former matrimonial home was also improper. However, his rental expenses are only 600 dollars above that of the Wife. I do not think that those expenses are unreasonable. 12.The Husband’s entertainment expenses of $2,000 per month were also criticized. In his Answers, the Husband admitted that he spends most Fridays to Sundays in Central and Macau and is fond of the game “Texas Hold’em Poker”. In view of the amounts alleged used by the Husband in Macau, it does not appear that these funds have been included in the entertainment expenses. If the Husband’s case is that he preferred to spend his money on gambling or entertainment rather than meeting the genuine needs of the Wife, then that assertion is wholly unacceptable or tenable. 13.Apart from the cost of food and meals out, which are slightly on the high side, none of the Husband’s expenditure appears to be extortionate. There is no dispute that the rental and utilities mentioned in the Husband’s Form E related to the former matrimonial home. The Husband has now moved into other rented premises and his says his rental is $10,400. Apart from the additional rental, there was no indication that there is any other change to the Husband’s expenditure. 14.Taking into account he Husband’s additional rental, his monthly expenditure is $45,518. 15.I note that the Husband has made no provision for legal expenses in his Form E. I am of the view that $5,000 per month would be reasonable. The Wife’s Resources and Expenses 16.There is no dispute that the Wife has no income. She has cash of about $557,000 in her bank accounts. The Wife alleges that out of the $557,000, a sum of about $312,000 in her Australian bank account is held on trust for her sister [See the Wife’s Form E]. The Wife contends that since June 2012, she has been relying on her savings and loans from her younger brother (about $250,000) to pay for her living and legal expenses. 17.Originally, the Wife claimed $20,400 per month as maintenance pending suit. This included pocket money for her mother ($1,200), medication ($1,200) and annual holidays ($3,000). Although the Wife had an operation in 2012, no evidence was adduced to show that any follow treatments or medication was required. There was also no urgency in the provision for her mother’s pocket money or annual holidays within the next few months. She therefore reduced her claim to $15,000 per month at the hearing. Particulars of her claim are:
18.The Husband alleged that the Wife’s claim for provision for Legal costs was unreasonable. He asserts that the Wife should apply for Legal Aid. Counsel for the Wife relied on the case of KGL v CKY [2005] 1 HKFLR where the Court of Appeal held that there was no reason why public funds should be expended to fund litigation when there are ample resources available within family funds. I agree with the Wife’s submissions. 19.It is clear that the amount claimed by the Wife would also have to cover expenses for the household, clothes, shoes and personal grooming. In those circumstances, her claim for $15,000 per month is more than reasonable. 20.I note that the joint expenses would exceed the Husband’s monthly income by just over $200 and that he has not made any provision for legal costs in his Form E. However, he has over $2.2 million in his bank accounts. It is clear that he is well able to make the payment of $15,000 to the Wife. Order 21.Adopting a broad brush approach, I will then make an interim order as follows:
Mr John W.R. Massieof Messrs Massie & Clement for the Petitioner Ms Yanky S.Y. Lam instructed by Messrs M.C. A. Lai & Co for the Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 17018/2012