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Ccmj v Ssm Formerly Known As Skl

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date13 March 2017
Year2017
Citation[2017] 3 HKLRD 124
Judgement NumberFCMP67/2010
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP67S/2010 CCMJ v. SSM formerly known as SKL

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

----------------------------

IN THE MATTER of xxxx, female, a child born on xxxx 2008 in Hong Kong
and
IN THE MATTER of Sections 3(1)(c)(ii), 3(1)(d) and 10(1) of the Guardianship of Minors Ordinance, (Cap.13 Laws of Hong Kong)
and
IN THE MATTER of Order 90 rule 1 of the Rules of the District Court (Cap.336 Laws of Hong Kong)

----------------------------

BETWEEN
CCMJ Applicant
and
SSM formerly known as SKL Respondent

----------------------------

Coram: His Honour Judge G. Own in Chambers (Not Open to Public)
Date of Hearing: 31 March 2016
Date of Respondent’s Submission: 6 April 2016
Date of Applicant’s Submission: 14 April 2016
Date of Respondent’s Submission in Reply: 19 April 2016
Date of Handing Down Decision: 13 March 2017

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D E C I S I O N
(Jurisdiction : Section 10(2)(e) of the
Guardianship of Minors Ordinance, Cap.13)

----------------------------

Introduction

1. The Applicant is the Father. The Respondent is the Mother.

3. Following a bitterly fought trial which spanned for 7 days in respect of the Mother’s claim for various financial reliefs under the Guardianship of Minors Ordinance, Cap.13 (“GMO”) in respect of the child N born out of their relationship, this Court handed down its 78-page Judgment on 5 June 2015 (“the Financial Judgment”).

3. At paragraph 180 of the Financial Judgment, this Court made, amongst other financial orders, the following Settlement Order (“Settlement Order”) :-

“180. For all the reasons above, there will be financial provisions for

the child N, subject to the Legal Aid First Charge (if any), as

follows :-

(a) The property situated at One Silver Sea under the sole name of the Father be settled on trust for the use of N and her primary carer, the Mother, at nil consideration until N reaches the age of 18 or ceases full time education, whichever is the later, with the reversion to the Father (as per paragraph 72 above);

(b) ……………..

(c) ……………..

(d) ……………..

(e) ……………..

(f) ……………..

(g) ……………..

(h) ……………..

(i) ……………..

(j) ……………..”

4. At paragraph 72 of the Financial Judgment, this Court said :-

“72. Given careful consideration to the above analysis and findings and all the available options, also having taken in account the means and resources of the Father, I would grant a settlement order under Section 10(2)(e) of the GMO in respect of the One Silver Sea property to cater for N’s use and occupation under the care of the Mother, with a reversion to the Father upon N’s reaches 18 of ceases full time education, whichever is the later. Since the Mother is granted the custody, care and control of N, she would have to live with N together until further Order.”

5. The Father sought leave to appeal the Financial Judgment from this Court and then the Court of Appeal (see HCMP No.2059 of 2015). On 2 December 2015 (Reasons dated 7 December 2015), the Father’s application for leave to appeal was dismissed with costs, on indemnity basis, summarily assessed at HK$100,000 by the Appellate Court (“the Appeal Decision”).

6. At paragraph 12 of the Appeal Decision, Mr. Justice Lam VP had said :-

“12………..It appeared to us from the submissions of Miss Wong, Counsel for the Father, during the course of the hearing that he was trying his best not to provide accommodation to the Child in the One Silver Sea Property, despite the Settlement Order. That attempt must be nipped in the bud. It is the Judge’s clear finding on the evidence before him that the only option open for consideration by the court on the Child’s accommodation needs was the One Silver Sea Property : see [54] of the Main Judgment. It was upon that basis the he made the Settlement Order. The Father is bound by the Judge’s finding. He must provide for the Child’s accommodation needs in the Property. It is also the duty of his legal representatives to advise him that like it or not, he must act according to the Judge’s finding. Without expressing any view on the merits of the stamp duty ground, we indicated that to alleviate the financial burden on the Father arising from the stamp duty as a result of the Settlement Order, if genuine, an undertaking by him to allow the Child and the Mother to occupy and live at the One Silver Sea Property rent free until the Child reaches 18 would be an option worth exploring. That, we note, was accepted by Ms Por, solicitor for the Mother, to be reasonable. We would leave it to the parties to see if anything can be made out of our indication.”

7. On 2 March 2016, the Mother took out a Summons and at paragraph 2 thereof seeking, inter alia, that the Father do deliver vacant possession of the One Silver Sea property to the Mother forthwith (“the Mother’s Application”).

8. The question which arose for consideration is whether this Court has jurisdiction to order delivery of vacant possession of property under the GMO. Since such question being a legalistic one not involving any factual disputes, Counsel for the parties fairly agreed that it could be dealt with on paper with the Mother filing her written submissions first and then followed by the Father’s submissions. The Mother had the right to file a further submission in reply.

The Father’s contention

9. Counsel Mr. Keith Hotten for the Father, in his written submissions, sets out the contention to the Mother’s Application under 4 separate headings :-

(a) Joint Efforts of the Parties to Settle the Property by Deed of Trust;

(b) The Request to deliver vacant possession is outside the Court’s jurisdiction;

(c) The Summons is Defective in Substance and in Procedures;

(d) The Application is not in the Child’s best interest; CA suggests Undertaking.

The Mother’s Reply

10. Counsel Mr. Kevin Li for the Mother, in his submissions in reply, referred to the Father having adopted tactics to attempt to create more barriers in order to avoid providing the Child with a shelter. The Father was taking advantage of his own default and his position and his delaying tactics was seen by the Court of Appeal and reflected in the Appeal Decision (see paragraph 6 supra).

11. Further, it was submitted that the Mother’s Summons is not an enforcement Summons as the Father so contended in his Counsel’s submissions. The Mother’s Summons was to seek specification of a time for compliance with a view to apply for contempt and/or enforcement.

The time being sought for in the Mother’s Application is “forthwith” which is to mean as soon as it can reasonably be done (see Commentary 42/2/2 of the Hong Kong Civil Practice 2016 Vol 1). “Forthwith” has also been held to be a sufficient expression of time for doing an act directed by a Court Order (see Thomas v. Nokes (1868) L.R. 6 Eq.521, Halford v. Hardy (1900) 81 L.T. 721). An order to do an act forthwith means that the act is to be done as soon as it can reasonably be done (see Hillingdon LBC v. Cutler [1968] 1 Q.B. 124; [1967] 2 All ER 361 CA; and Chou Yi Feng v. Chou Yi Chen and others, HCA No.4393/2001).

12. Reference was made to the case of IDC v. SSA [2014] 4 HKLRD 220 where it was held by the Court that the similarity on language used between Section 10(2)(e) of the GMO and Section 6(1)(b) of the Matrimonial Proceedings and Property Ordinance, Cap.192 does not call for a narrower interpretation be given to the meaning of “property” in the GMO from what had been laid down in the Interpretation and General Clauses Ordinance, Cap.1. “Property” was defined under section 3 of Cap.1 to include money, goods, chose in action and land; and obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as defined in the Ordinance.

13. The Father, as the sole legal and beneficial owner of the One Silver Sea property, having the right to exclusive possession and enjoyment of the property could have been able to settle all his rights and interests in the One Silver Sea property of which he had not done so, despite the Settlement Order.

The 4 Contentions of the Father

14. I will first deal with each of the Father’s contentions in sequence.

15. It is the Father’s case that joint efforts of him and the Mother are required to work out various essential terms of the Deed of Trust before any settlement could be arranged. Further, any agreed terms would still have to be consented to or approved by the mortgagee bank of the One Silver Sea property. However, despite the Father’s efforts made to the Mother’s legal representatives, all the proposals of the Father were either not responded to or rejected by the Mother.

16. In my view, there is no legal requirement or rules for parties who intended or being ordered by the Court to enter into a deed of trust to have to agree upon terms of the trust before it could be settled. Very rarely and only in exceptional circumstances, there may be reasons for better management or special arrangement of the trust which call for terms to have to be agreed and in place before the deed of trust could be settled.

17. Mr. Hotten in his submissions have not referred me to any cases or authorities on this aspect or there exist any exceptional circumstances save and except that whatever terms agreed to by the parties would still have to be consented to by the mortgagee bank of the One Silver Sea property.

18. For the present case, the Settlement Order requires that the One Silver Sea property which is legally and...

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