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Betty Nio v Nio Joen Tjong And Another

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date07 June 1973
Subject MatterMatrimonial Causes
Judgement NumberFCMC297/1972
CourtFamily Court (Hong Kong)
FCMC000297/1972 BETTY NIO v. NIO JOEN TJONG AND ANOTHER

FCMC000297/1972

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 297 OF 1972

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BETWEEN
BETTY NIO (otherwise Manggunic) also known as LIE KIEM TENG alias BETTY LIE Petitioner
and
NIO JOEN TJONG also known as MAS MANGGUNIO 1st Respondent
and
LILY CHEE 2nd Respondent

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Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 7th June 1973

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DECISION

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1. This is an application by the petitioner against the 1st respondent for ancillary relief for herself and the three children of the family.

2. A decree nisi was granted to the petitioner on the 24th February 1973 on the grounds of irretrievable breakdown of the marriage the petition being undefended. The proof of ground was adultery the petitioner finding it intolerable to live with the 1st respondent. The decree has not yet been made absolute although it was ordered to be made forthwith. At the hearing custody of the three children of the family, Roy who is now over 21 years of age, Tony aged 14 and Terry aged 12, was granted to the petitioner.

3. An order for maintenance pending suit was made on the 24th January 1973 for the 1st respondent to pay the petitioner $3,000 per month but apart from one payment he has not complied with this order so that he is in contempt. Accordingly the 1st respondent was not entitled to be heard in these proceedings but Mr. Ching for the petitioner did not press this point so that I have read the affidavits filed on his behalf.

4. Neither party gave viva voce evidence so that the application has been dealt with entirely on affidavit evidence which has not been very satisfactory.

5. The parties were married on the 14th March 1951 in Djakarta, Indonesia and from 1951 to 1958 the parties lived there after which time they moved to Hong Kong. A house in Djakarta was purchased in 1951 at a cost of 50,000 rupees. The petitioner says that as the 1st respondent did not have sufficient funds for the purchase price she gave him some of her jewellery to sell which she estimates was worth the price paid. The petitioner does not know how much the 1st respondent obtained from the sale of the jewellery. The parties lived in this property until 1955 when they purchased a house at Krekot Djakarta where they remained until they came to Hong Kong. The first property was given to on employee of the 1st respondent as a gift.

6. Subsequently the petitioner says that in order to assist the 1st respondent and at his request she sold further amounts of jewellery at various times to provide him with funds until they came to Hong Kong. In addition she says that she sold more jewellery in 1964 to assist the 1st respondent in one of his business ventures. The petitioner estimates that during the marriage the amount of jewellery that was sold by her or given by her to the 1st respondent to sell amounted to about $700,000.00. The petitioner does not say in her affidavits how she acquired the jewellery but the 1st respondent says that during the marriage he gave the petitioner considerable quantities of jewellery which he assesses to be in excess of $500,000.00.

7. After various separations the 1st respondent finally left the petitioner sometime at the beginning of 1971 since which time the parties have not resumed cohabitation.

8. I will deal first with the properties referred to by both parties:-

PROPERTIES IN DJAKARTA

1. House at Sri Widjaja. The 1st respondent says that he gave this property to the petitioner and claims that it is now worth US$100,000. He says that it is occupied by the petitioner's daughter by her former marriage. This is contradicted in the 1st respondent's affidavit of the 31st January 1973 when he says that the petitioner transferred the property to her son-in-law one week after it was transferred to her. The petitioner says that with the authority and in the presence of the 1st respondent and upon his insistence she transferred the house to her daughter and son-in-law as a wedding present. A copy of a Power of Attorney executed in Djakarta was exhibited to an affidavit of the petitioner. The legal effect of this document was not proved by an expert in Indonesian law but it does appear that the 1st respondent who is referred to in the document authorised the transfer of the property. On the evidence before me I find that this property does not belong to the petitioner.
2. Property at Djalan Krekot 75. The 1st respondent says that it is worth HK$200,000 and believes that it has been given to the petitioner's brother and her mother. The petitioner agrees that the property is in her name. There was no satisfactory evidence available to indicate the present value of the property nor whether the petitioner would be in a position to place it on the market for sale.
3. Hotel Patria. The 1st respondent says that the petitioner sold the hotel for 60,000,000 rupiahs but the petitioner says that it was sold for 60,000,000 rupiahs. The petitioner exhibited the document under which the property was assigned to her by the 1st respondent in her affidavit of the 17th May 1973 together with a Power of Attorney giving authority to her daughter and son-in-law to deal with it. A copy of a deed of sale that was also exhibited revealed that the property was sold by her daughter and son-in-law for 4,000,000 rupees. I accept the evidence of the petitioner upon this matter.
4. Hotel in Djalan Monjet. The 1st respondent says that this hotel is worth HK$200,000 with a rental value of US$1,500 per month. The hotel has been requisitioned by the Air Force but the 1st respondent says that the petitioner should have no difficulty in collecting rent from the Air Force. However, in the absence of evidence to the contrary I consider it highly improbable that rent is being paid and I reject the 1st respondent's statement.

9. On the evidence presented to me it is debatable whether the petitioner has at the moment any material interest in the two properties in Djakarta that remain in her name.

10. It is significant that the 1st respondent in his affidavit of the 10th February 1973 stated that he was making enquiries in Djakarta to substantiate his allegations but that it might take several weeks to do so. Although four months have since elapsed no further affidavit has been filed by the 1st respondent with the result that I am highly sceptical of the assertions that he has put forward and I place little reliance upon them.

PROPERTIES IN HONG KONG

11. It is not in dispute that all the properties in Hong Kong are in the name of the 1st respondent's uncle Siew Chee Hong who holds them in trust for the 1st respondent. The properties are:-

1. 131 Waterloo Road. The land upon which the house was built was purchased by the 1st respondent in 1962 with the intention that it should be the permanent matrimonial home. The 1st respondent estimates that the present value of the property, which is subject to a mortgage in favour of the Shanghai Commercial Bank to secure a loan for $285,000,00, is $2,000,000.00. The petitioner continues to live at this property with the three children of the family.
2. Flat C, 1st floor, Garden Mansion. This property has been sold and the proceeds of sale which were not disclosed were used for the repayment of a loan to the Shanghai Commercial Bank.
3. 10 Playing Field Road, 8th floor, Grant Mansion. The 1st respondent resides in this property when he is in
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