B, L v. K, Ws
Read the full judgment text of FCMC 17190/2014 on BabelCite. This Family Court judgment was delivered on 14 May 2015 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Leave to appeal – Maintenance pending suit – Pre-nuptial agreement – Litigation funding – District Court Ordinance s 63A – Whether appeal has reasonable chance of success – Leave refused – Costs to Petitioner
Legal issues: Leave to appeal test · Costs
Outcome: Leave to appeal refused; summonses dismissed; Costs to Petitioner
Cited by 4 cases · Cites 2 cases
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FCMC 17190/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 17190 OF 2014 ----------------------------
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---------------------------------- Introduction 1.This is an application by a Respondent husband for leave to appeal against my judgment of the 13 April 2015 which was essentially an application by the Petitioner wife for maintenance pending suit and litigation funding. He also asks for a stay of execution as follows:
2.Paragraph 2 of the order states that:
3.Whereas paragraphs e) and f) confirm:
Background to the litigation 4.By way of background I should add, as stated in paragraph 3 of the judgment:
5.I should say at the outset that I accept entirely that the whole area of nuptial agreements – both pre nuptial and post nuptial is a developing one and that guidance is somewhat limited. There is a also a question about the extent to which a court should be bound by a Pre Nuptial Agreement (PNA) pending a Crossley application – or in the event that there is no such application pending either a Financial Dispute Resolution hearing or a trial on ancillary relief. Having said that I do not accept, for reasons that I will go into below, that this is necessarily a suitable case to go up to the Court of Appeal. The law 6.As both parties have rightly pointed out the appropriate test when seeking leave to appeal is set out in statute and can be found at s 63A District Court Ordinance, Cap 336. This states that either the appeal must have a reasonable chance of success or that there is some other reason in the interests of justice why the appeal should be heard. 7.It follows that generally speaking the Court of Appeal is unlikely to interfere with the exercise of a judge’s discretion unless it can be shown that she (or he as the case may be) has clearly exercised her discretion incorrectly i.e. that it was exercised according to a mistake of law, or she had misunderstood the facts, or she had taken into account something that was irrelevant or “the exercise of the discretion was ‘outside the generous ambit within which a reasonable disagreement is possible”. Stay of execution pending appeal 8.As Mr Coleman SC pointed out reference can also be made to the principles applicable to a stay of execution as set out in Star Play Development Limited v Bess fashion Management Co Limited [2007] 5 HKC 84 as necessary. I will not however repeat the same here. The Grounds of Appeal 9.The husband asks that the appeal be allowed generally because:
10.However as will be noted from the transcript, the husband did not argue at the maintenance pending suit hearing that he should be released from his undertakings, given earlier that day, to inter alia maintain the wife’s subsidiary credit cards up to a combined total of HK$220,000 per month, because he had paid or was prepared to pay US$300,000 as an advanced capital sum to the wife. The offer to pay a US$300,000 capital sum to the wife came right at the end of the hearing after the submissions had effectively closed. Mr Barnes for the husband put it thus:
11.The offer was made in the context of a discussion about litigation funding – given that the husband had originally offered to advance the wife US$100,000 for that purpose on the premise that it be deducted from any capital sum that she might receive at the end of the day. The point made was that the wife’s claim for litigation funding could not succeed in the event that the husband advanced her US$300,000. There was no further mention of his undertaking. 12.The husband then paid the sum of US$300,000 to the wife directly after the judgment was handed down on the 13 April 2015 when it was ordered, as I have said, that he pay US$300,000 to the wife’ solicitors as litigation funding. 13.The husband paid the US$300,000 to the wife “as advance capital to use as she wishes …” on the premise that she agree to his request that he be released from his undertakings to provide the credit card provision pending the outcome of the appeal. Solicitors for the wife said in their letter of the 28 April that this:
They added:
14.I would agree with their assessment of the situation. It seems to me that it ill becomes the husband to attempt to change the goal posts after the event and to then use that as a basis for an appeal. He did not argue at the maintenance pending suit hearing that a capital advance of US$300,000 would be in lieu of the provision of credit to the tune of HK$220,000 per month on the wife’s subsidiary credit cards. That line of argument has only been advanced post judgment. Specific grounds of appeal 15.I do not intend to go through each and every point – however it seems to me that the following is of particular relevance. 1. The learned Judge erred in law and fact in her approach to the parties PNA
16.It seems to me that this is a moot point. As Mr Barnes rightly pointed out (see paragraph 10 above) it almost goes without saying that as a maintenance pending suit order/interim maintenance order is broad brush by definition, it is capable of being varied either upwards or downwards. It would not be usual to specifically state that any award “is without prejudice as to whether it be set off against a final award” – although that is always a possibility. 2. The learned Judge further erred in law in finding that the wife “will have an arguable case” on the PNA 17.At paragraph 6 of the judgment I said as follows:
18.I added at paragraph 14:
19.I am not convinced that a reference to the wife having an “arguable case” in this context of itself constitute a valid ground of appeal. 3. The learned Judge erred in making any award of MPS to the Wife 20.Although it is true that the wife did not provide a detailed budget of her expenditure, sufficient information had been provided in order to proceed with her application. It is of note that the husband did not seek to adjourn the matter on that premise. It was suggested during this hearing that I should have done so of my own motion. This seemed to me to be quite an extraordinary suggestion in the circumstances. In any event as I have already said, given that maintenance pending suit orders are by their very nature broad brush any over payment or underpayment can be dealt with at the end of the day by way of set off as necessary. In the context of this case, in the event that the PNA is upheld it would be possible to offset any maintenance payments for the wife against her lump sum award of US$850,000 on the premise that it is found that she is only entitled to a lump sum of US$850,000 and no maintenance at all for herself. 4. The learned Judge erred in her contradictory approach to the PNA 21.This point relates to the issue of the children’s maintenance vis a vis the order made. This was fully canvassed in the judgment and necessary adjustment would be anticipated in due course. 5. The learned Judge erred in law in awarding the sum of US$300,000 to the wife as MPS for her own legal costs. 22.Please see the comments made in paragraphs 9 – 15 above. MrColeman S.C said that it was wrong in principle to make such an order when it would not be possible for the husband to recover a like amount in costs in the event that he is vindicated. Whilst I would accept that is likely – it seems to me that that same principle applies in all cases where there is an order for litigation funding. To the best of my knowledge (and I stand to be corrected on this) I am not aware of any case where that argument has been successfully used as a basis for not making an order for litigation funding. 23.Further it was suggested that it was wrong of me to state that the order was not subject “to any caveats”. That was said in the following context:
24.In other words I did not accept that the condition precedent should be specifically made part of the order i.e. that this sum should be off set against the wife’s capital sum – come what may. Certainly it is within the discretion of the court – but the court should not be bound by such an order. Again I do not accept that this is an appealable point. Conclusion 25.Whilst as I have said I accept entirely that the whole area of nuptial agreements is a developing area of the law in Hong Kong, I do not agree that the husband has identified a point worthy of going up to the Court of Appeal at this stage of the litigation. It will be for him to convince the Court of Appeal that I am wrong in this. In the meantime both of the husband’s summonses dated the 27 April 2015 do stand dismissed. Costs be to the Petitioner wife to be taxed if not agreed on a party and party basis. There shall be a certificate for all counsel involved.
Mr Robin Egerton instructed by Howse Williams & Bowers for the Petitioner Mr Russell Coleman SC and Ms M Rattigan instructed by Withers for the Respondent |
Cases cited in this judgment
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Further hearings and rulings under FCMC 17190/2014