S,Wck v. F, P
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FCMC 11192/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO 11192 OF 2012 ________________________
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________________________ R U L I N G ________________________ 1.This application is concerned with the construction and possible variation of a court order dated 28 August 2013, entered into by consent following a successful FDR hearing, in which, inter alia, it was agreed that:
2.The difficulty that has arisen since the order was made is that it has not proved possible to sell the former matrimonial home as had been originally envisaged. In part this is because the outside of the property is presently being renovated which arguably makes it a less attractive option for a potential purchaser at the present time. Further it is a large flat with high ceilings and is generally less sought after than other properties in the same price bracket. I am told that offers to date have been well below the original asking price of HK$80 million. 3.On the 5 September 2014 the respondent husband filed the following summons. He is currently unrepresented.
4.In so far as item 1 is concerned that has now been resolved and both parties have contributed to the renovation costs. As indicated previously the court has no jurisdiction to compel a litigant to counter sign a loan application on a jointly owned property and thus item 4 also falls away. That leaves items B and C to determine. Must the Petitioner share the monthly expenses until the sale of the flat? 5.This application centres on the proper construction of clause K and order 2 as contained in the court order dated the 28 August 2013 as set out above. The husband argues that order 2 is absolute – i.e. that the property is to be sold within 6 months and that his obligations under clause K only continue therefore for a six month period i.e. until the 28 February 2014. Otherwise he argues, if the property is not sold then the alternative would mean that he might be obliged to pay the household expenses ad infinitum. He maintains that that was not the original intention of the order. In the meantime it appears that the husband is not paying the household expenses as was originally intended. It is also of note that he has not made any application under the “liberty to apply” provision that was expressly retained in order 2. In other words if the property did not sell within the 6 month period then this provision allowed either party to make an application to the court for further directions in relation to the proposed sale. 6.The wife for her part takes issue with the husband’s stance on the household expenses. She also points out that the husband’s case is not consistent. 7.It seems to me that, on a correct reading of these two clauses that the original intent was that each party should continue to be responsible for the costs that they had been responsible for, in the matrimonial home as at the 28 August 2013. These expenses were set out in the parties respective Form E’s. In the event that the property did not sell as expected then the correct course of action would be to return to court in order to expedite the sale. In the event that the parties did not make that application and the property remained unsold then it seems to me that they remain bound by clause K. The Form E’s 8.According to the husband’s Form E dated the 5 October 2012 he had the following expenses:
9.Likewise according to the wife’s Form E dated the 3 October 2012 she had the following expenses:
These are the figures that are referred to in clause K. 10.For the purposes of this application each party’s personal expenses are largely irrelevant. It also seems to have been accepted, as set out above, that the husband was paying the lion share of the general or household expenses in the sum of HK$60,500 per month and the wife was paying an additional HK$29,460 per month. In round figures then the living costs at the former matrimonial home were split on a 1/3 : 2/3 basis. 11.The difficulty that arises is that as time has moved on the situation has changed. This is in part due to the fact that the husband claims to be short of money which he says is a direct result of not being able to sell the property. Putting that to one side for the moment the fact remains for example that the driver is no longer employed and that the husband has cancelled the ParkNshop card. Other payments have been varied – although this does not appear to have been by agreement between the parties. I am told that both parties continue to reside in the former matrimonial home with J – although there is no communication between them. The husband also spends approximately half of the month in Bangkok. The wife says that she now pays more because the husband has failed to comply with clause K. The husband says that it was always the intention that the wife would be responsible for J’s expenses going forward – which is why there is a fund against which she can claim in any event. I accept that up to a point. It was though never anticipated that the parties would still be living under the same roof at the former matrimonial home with all of the attendant expenses that that implies. 12.In such circumstances it seems to me that there will need to be a proper accounting exercise and that each party shall file an affidavit in which they each set out the general expenses paid by them since the court order of the 28 August 2013 – i.e. from the 1 September 2013. The list of expenses shall be in the same format as the Form E – General. Documentary evidence of payment shall be attached as appropriate. As an indication I will expect the husband to pay 2/3 of those General expenses and the wife 1/3 until the sale of the former matrimonial home. This is in line with the original intention behind clause K. For the avoidance of doubt the husband must share the monthly expenses on the flat in that ratio until the flat is sold. I do not accept that the original intention of the order was that the husband should only contribute towards those expenses until the 28 February 2014. There shall be no reimbursement by one party to the other pending the outcome of the accounting exercise. Should the Petitioner reimburse the Respondent for expenses paid by him for the son’s (J’s) expenses since the 1 September 2013? 13.The rationale for this request seems to be that because the order allows for a fund to meet the costs and expenses for J that it follows that the husband should be reimbursed from this fund in the same way as it was anticipated that the wife should be given that the parties are still living under the same roof and each is contributing to J’s general expenses. At annex B attached to the order the fund for J was estimated as follows:
In the event that there was a surplus then it was agreed that those funds would belong to J absolutely – if there was a deficit then it was agreed that there would be liberty to apply and that the matter would return to court. 14.The wife says that given the fact that the former matrimonial home has not sold, she has been shouldering most of J’s expenses on her own. For example she has been paying for J’s school fees and other related costs. I accept that this must have been a considerable burden for her – notwithstanding the fact that she will be able to claim against the fund for some of these expenses in due course. 15.The real difficulty lies in relation to the reference in the schedule to household expenses, expenses for the domestic helper, utilities and home maintenance at HK$120,000 per annum – this being the share attributed by the parties to J’s general household expenses. This amounts to HK$10,000 per month. It was anticipated that J would be living with the wife after the sale of the matrimonial home and that this would be J’s notional share of her general expenses. In addition it is clear from order 4 that it was also intended that the wife should be able to claim against the fund for reimbursement for J with effect from the 1 September 2013. Consequently the husband argues that the wife should be responsible for all J’s expenses and that he should be reimbursed for J’s share of household expenses that he has continued to be responsible for by either the wife and/or from the fund. He argues that given that he has been contributing towards the general household expenses that this is only fair and reasonable. He has also tried to calculate what he says J’s actual share of those expenses should be. Unfortunately these are not in the same categories as the Form E and thus it is very difficult if not impossible to compare the two accurately. In such circumstances it seems to me that the most straight forward way to proceed is that on the premise that the parties should continue to contribute towards the general expenses of the household on a 1/3 (wife) : 2/3 (husband) ratio which shall include a contribution towards J’s general household expenses, it is further directed that once the fund is established each party may claim HK$5,000 per month from the fund for the period from 1 September 2013 to either September 2016 when J starts College, or when the property is sold and the parties move out – whichever is the earlier. Thus each party shall continue to contribute towards the household expenses as was originally intended and this shall include a contribution towards J’s expenses. On that basis they shall be able to equally claim against the fund for a portion of J’s share of the household expenses whilst J continues to reside at the former matrimonial home. Other points Can the husband afford to pay this sum? 16.The husband pleads poverty – but on the basis of his own submissions he has spent over HK$3 million (HK$3,130,105) from September 2013 to February 2015 – i.e. HK$184,125 per month. This is a significant sum for one person. It is not clear how this level of expenditure can be sustained given that he has no income, even if the matrimonial home is eventually sold for HK$80 million. The problem it seems to me is that the husband has taken no steps at all to alter his own lifestyle so as to accommodate the present situation. Thus although I accept that he may indeed have cash flow difficulties, to an extent that is a matter of his own making and is not a reason to vary the existing order. Conclusion 17.I will therefore order that:
18.In the event that either party wishes to seek further directions in relation to the sale of the former matrimonial home, then it is further directed that the appropriate summons and supporting affidavit be filed returnable on the 16 June 2015 in the first instance.
Ms T Kwan instructed by Withers for the Petitioner The Respondent appeared in person | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
