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王 v 羅

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date26 September 2022
Neutral Citation[2022] HKFC 198
Year2021
Judgement NumberFCMC1378/2021
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC1378/2021 王 v. 羅

FCMC1378/2021

[2022] HKFC 198

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1378 OF 2021

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BETWEEN
王 Petitioner
And
羅 Respondent

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Coram: District Judge K.K. PANG in Chambers (Not open to public)

Date of Hearing: 19 August 2022

Date of Judgment: 26 September 2022

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J U D G M E N T

(Anti-Suit Injunction etc.)

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Background

1. The parties were married in 2013 in Hong Kong. The child of the family, namely a girl (‘the daughter’), was born in 2014.

2. The relevant chronology is as follows: -

(1) The parties jointly purchased the former matrimonial home (‘FMH’) a resident flat situation in Kowloon Tong in 2012.

(2) The parties were married in Hong Kong in 2013.

(3) The daughter was born in 2014.

(4) The petitioner husband (‘H’) became a permanent Hong Kong resident in 2017.

(5) The respondent wife (‘W’) became a permanent Hong Kong resident in 2019.

(6) H filed the petition for divorce by reason of behaviour on 19 February 2021, amended on 14 May 2021 pursuant to rule 16(2) of the Matrimonial Causes Rules, Cap 179A.

(7) By the summons filed on 25 May 2021, H made an application for an order for the interim custody, care and control of the daughter.

(8) Despite that W filed her Form 4 indicating her intention to contest the suit on 23 June 2021, no answer has been filed.

(9) On 26 July 2021, H filed the Application for Directions for Trial of this cause by the Special Procedure List.

(10) By the summons filed on 2 August 2021, H made an application for an order prohibiting the daughter from leaving Hong Kong without the leave of the court and the return of the daughter if she is out of Hong Kong.

(11) Pursuant to the above summons filed on 2 August 2021, and upon H’s personal undertaking to the court that as and when W and the daughter return to the FMH, he shall not enter or remain in the FMH, and upon hearing counsel for the parties respectively, an order prohibiting the daughter from leaving Hong Kong without the court’s leave was made on 5 August 2021.

(12) By another order made on 5 August 2021, it is ordered that the parties do file and serve their respective Form J within 14 days of the order and the Children Appointment was adjourned to 7 January 2022.

(13) By the Form A filed on 6 August 2021, H made an application for a lump sum order, a settlement of property order and a transfer of property order in respect of two landed properties in Hong Kong, one of which is the FMH.

(14) By the summons filed on 24 August 2021, H made an application for an ouster order prohibiting W from entering and remaining in the FMH and the discharge of his personal undertaking to the court dated 5 August 2021.

(15) By the order made on 25 August 2021, it was ordered that the First Appointment on 18 October 2021 was adjourned and heard together with the Children Appointment on 7 January 2022 and that the parties do file and serve the Form E on or before 6 October 2021.

(16) By another order made on 25 August 2022, it was ordered that H do have interim access to the daughter.

(17) On 24 December 2021, the Certificate of Registrar was issued and the court fixed 13 January 2022 for the pronouncement of the decree nisi.

(18) By the summons filed on 4 January 2022, H made an application for the withdrawal of the Amended Petition and the discontinuance of these proceedings unconditionally, except that costs including all reserved costs be payable by him to W.

(19) On 4 January 2022, W filed her Form J.

(20) On 6 January 2022, W filed her Form E.

(21) Upon the application by the summons filed on 4 January 2022, by the order made on 7 January 2022, it was ordered that the pronouncement of the decree nisi was adjourned to a date to be fixed.

(22) On 3 March 2022, H issued the divorce application in the People’s Court of Daxing District (大興區人民法院) in Beijing (‘BJ’)[1], in which he seeks the dissolution of marriage, the sole custody of the daughter and financial relief in respect of three landed properties in PRC that are held under W’s name. That is to say, H wishes to have the main suit, the children matter as well as the financial relief to be determined in the legal proceedings in BJ.

(23) On or about 29 March 2022, W raised the issue of jurisdiction in the legal proceedings in BJ[2].

(24) By the summons filed on 28 April 2022, W made an application for an anti-suit injunction order and an interim anti-suit injunction order restraining H from continuing the legal proceedings in BJ or commencing any legal proceedings in PRC raising the same or substantially the same disputes or issues as these divorce proceedings.

(25) By the 2nd summons filed on 28 April 2022, W made an application for leave to file the answer and cross petition by reason of behaviour out of time

(26) By the summons filed on 13 May 2022, H made an application for leave to withdraw the summons filed on 25 May 2021, the summons filed on 2 August 2021 and the summons filed on 24 August 2021.

(27) On 20 July 2022, the People’s Court of Daxing District handed down the judgment that H’s divorce application therein was dismissed inter alia on the ground of forum[3].

(28) On 22 July 2022, H lodged an appeal against the judgment dated 20 July 2022[4].

3. This is the hearing of H’s summons filed on 4 January 2022 and 13 May 2022 respectively and W’s summons filed on 28 April 2022 for an anti-suit injunction order.

The summons filed on 4 January 2022 and 13 May 2022 respectively

4. Order 21 rule 3(1) of the Rules of the High Court (‘RHC’) provides that except as provided by rule 2, a party may not discontinue an action or withdraw any particular claim made by him therein, without the leave of the court.

5. The applicable legal principles are summarized in Hong Kong Civil Procedure 2022 (at 21/5/11): -

“…The principle underlying the requirement for leave is that after proceedings have reached a certain stage, the plaintiff, who has brought her adversary into court, should not be able to escape by a side door and avoid the contest since she is no longer dominus litis, and it is for the court to say whether the action should be discontinued and upon what terms: Fox v Star Newspaper Co Ltd [1898] 1 QB 636, 639 (Chitty LJ).

Nevertheless it is not desirable that a plaintiff should be compelled to litigate against her will; the court will normally grant him leave to discontinue if she wants to, provided no injustice will be caused to the defendant nor will the defendant be deprived of any advantage which she has already gained in the litigation, which so far as possible should be preserved. The order of the court must take effect from the date on which such leave is granted since the court has no power under the rules or under its relevant jurisdiction to back-date such an order: Covell Matthews & Partners v French Wools Ltd [1978] 1 WLR 1477, [1978] 2 All ER 800 (CA) affirming Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876, [1977] 2 All ER 591; Wong Shing v Loi Kam Cheong (DCPI 1842/2007, [2008] HKEC 1791).”

6. W draws the court’s attention to Coqueen Co Ltd (昶華有限公司) v Chui Wai Kwan (unreported HCMP 438/2010 8 December 2015) where To J held that for the court to grant the leave under Order 21 r.3(1) RHC, good reason must be shown: -

“ [38] A plaintiff applying under this rule has to show he has a good reason to discontinue the action. What is a good reason depends on the circumstances of the case. Examples of good reasons include: that the dispute has become academic; that a crucial witness has died or has otherwise become unavailable; that the subject matter of litigation has ceased to exist; or that the defendant has no means to satisfy any judgment which may be awarded against him. A good reason does not necessarily entitle a plaintiff to unconditional leave to discontinue. It is only the threshold which he must overcome before the court would even consider whether to grant leave to discontinue on terms without costs. Absence of good reason must necessarily mean the starting point applies”

7. W further refers to Castanho v Brown & Root (UK) Ltd [1981] AC 557. The plaintiff therein issued a notice of discontinuance under the then Order 21 rule 2(1) (under which leave was not required) after obtaining an order for interim payment and an admission of liability from the defendants. The discontinuance was with a view to pursuing another action in the court of the States which was likely to award higher damages. The House of Lord unanimously upheld the setting aside of the notice of discontinuance. Lord Scarman stated (at 571G - 572C):

“The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.

Was it, then, in the circumstances of this case, an abuse? In my judgment, it was. A sensible test is that which both the judge and Lord Denning M.R. applied. Suppose leave had been required (as it would have been, if the notice had been served 24 hours later), would the court have granted unconditional leave? It is inconceivable that the court would have allowed a plaintiff, who had secured interim payments and an admission of liability by proceeding in the English court, to discontinue his action in order to improve his chances in a foreign suit...

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