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Adele Nordica Park v John Mitchell Park

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date16 November 1978
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP501/1978
CourtHigh Court (Hong Kong)
HCMP000501/1978 ADELE NORDICA PARK v. JOHN MITCHELL PARK

HCMP000501/1978

1978 No. 501

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of Rule 68(2) (a) of the Matrimonial Causes Rules and Sections 4 and 6 of the Matrimonial Proceedings and Property Ordinance Cap. 192

BETWEEN
ADELE NORDICA PARK Applicant
and
JOHN MITCHELL PARK Respondent

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Coram: Mr. Registrar Cruden in Chambers.

Date of Judgment: 16th November, 1978.

Mr. J. Bleach instructed by Wilkinson & Grist for the applicant.

Mr. R. Mills-Owens instructed by Johnson, Stokes & Master for the respondent.

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DECISION

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1. This is an application under Rule 68(2) of the Matrimonial Causes Rules Cap. 179 for liberty to apply for a lump sum and property adjustment order, notwithstanding that a claim for the same was not made in the petition in Divorce Action No. 15 of 1959. In that Action the decree nisi was granted on the 18th day of July, 1959 and was made absolute on the 18th day of February, 1960.

2. A preliminary consideration was whether the provision for a lump sum payment under s.4(1)(c) of the Matrimonial Proceedings and Property Ordinance Cap. 192 is retrospective. Provision for lump sum payments was first enacted in Hong Kong under Section 28 of the Matrimonial Causes Ordinance No. 1 of 1967 which came into force on the 19th day of January 1967. Section 28 was based on Section 16 of the English Matrimonial Causes Act 1965. In 1972, Section 28 was repealed by Section 33 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. It was replaced by what is now Section 4(1)(0). As to whether the provision for lump sum payments was retrospective, there is no material difference between these various Hong Kong and English sections. None of them expressly makes the power to award a lump sum retrospective. This was one of the reasons which led Sir Jocelyn Simon, P., as he was then, in H. v. H. (1966) 3 All E.R. 560 to hold that the English provision was not retrospective. The contrary view, which is now accepted in England, was first advanced in detail by Brandon J. in Powys v. Powys (1971) 3 All E.R. 116. More recently that view has been upheld by the English Court of Appeal in Chaterjee v. Chaterjee (1976) Fam.199. There does not appear to be any reported Hong Kong decision on whether our provisions are retrospective. In the light of the similarity of the sections and the position which is now settled in England, Counsel for the respondent sensibly accepted that our Section 4(1)(c) too, is retrospective. I am satisfied that it is retrospective. Therefore even though the marriage between the parties was dissolved nearly 7 years before the power to award a lump sum was introduced, a Court now clearly has jurisdiction to make such an order.

3. There was also no dispute that the proper procedure, on an application for leave, is that set out in S. v. S. 'The Times' dated 3.12.73. In referring to the obligation to first obtain leave, Ormrod J., as he then was, is reported as saying:-

" Its purpose was to avoid the expense and hardship to the other party of having to contest an application which had little or no chance of success; it was primarily protective of the other party. But the power to stop such applications in limine must be used with caution. If the applicant had an arguable case the proper place was to argue it on the substantive application.
On the other hand, leave should be refused where there had been an unjustifiable delay in applying for relief or circumstances had so changed as to make such relief inappropriate, or where the husband's resources were such that no order was likely to be made, or where the application could be properly regarded as oppressive. It would often be convenient to treat the application for leave as the hearing of the substantive application to avoid delay and further expense."

4. At no stage did the parties invite me to treat this application for leave, as the substantive application. Arguments were therefore limited to the question of leave. However, it was necessary to go into the factual background in some detail. In view of the considerable period of time involved and the respondent's strongly argued objection to the application on the grounds, inter alia, of unjustifiable delay, intervening change of circumstances and that he had been lulled into the belief that all claims from the applicant had been long settled, it may be helpful to set out the chronological progression of events, without expressing any view as to their relevance or importance:-

1949: Applicant and respondent married.
1954: Applicant and respondent separated.
1959: Decree Nisi.
1959: Respondent purchases 28 Lugard Road residential property for HK$100,000.
1960: Decree Absolute.
Periodical payments of HK$2,500 per month to applicant;
HK$1,200 per month to the two sons of the marriage.
1960: Respondent re-marries.
1967: Power to award lump sum enacted.
1976: Respondent's second marriage dissolved.
Respondent remarries.
1977: On 18.7.77 Order as to matrimonial property and periodical maintenance in respect of respondent's second marriage in Divorce Action No. 760 of 1975 including $6,000 per month for second wife; $2,000 per month for their daughter;
$700,000 to second wife being one-third of agreed value of Lugard Road property.
1977: In November 1977 parties son, Bruce, suffered severe head and internal injuries in motor vehicle accident.
1978: Applicant files present application for a lump sum.
Applicant also files an application in Divorce Action No. 15 of 1959 for variation of 1960 order relating to periodical payments in her favour.

5. As to delay, the applicant states that she had not previously made any application for a lump sum or for variation of the 1960 order for periodical payments. This was in part due to the fact that the periodical payments order was expressed in Hong Kong dollars. In 1960 it was equivalent to about $150 per month, but due to the continual fall in the value of sterling, it now equals, in her hands, nearly $300 per month. The applicant has lived in England since the parties separated in 1954. She never lived in the Lugard Road property. At present she lives in private rented furnished accommodation which consists of a 1 bedroom bungalow. The parties son, Bruce, now aged 27, lives with her. Since the accident in 1977 he has been under the direction of a psychiatrist as an out-patient. She deposes that it is doubtful whether Bruce will ever be able to cope with other than a manual job and states that in the...

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