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Chan Chi Wing v Chan Tse Yook Yee

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date28 November 1989
Judgement NumberCACV119/1989
Subject MatterCivil Appeal
CACV000119/1989 CHAN CHI WING v. CHAN TSE YOOK YEE

CACV000119/1989
IN THE COURT OF APPEAL 1989, No. 114
(Civil)

BETWEEN
CHAN CHI WING Petitioner
(Respondent)
AND
CHAN TSE YOOK YEE Respondent
(Appellant)

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1989, No. 119
(Civil)

BETWEEN
CHAN CHI WING Petitioner
(1st Respondent)
AND
CHAN TSE YOOK YEE Respondent
(Appellant)
and
KWAN CHAK MAN Applicant
(2nd Respondent)

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

Coram: Hon. Fuad, V-P, Penlington & Macdougall, JJ.A.

Date of hearing: 16 November 1989

Date of handing down of judgment: 28 November 1989

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J U D G M E N T

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Penlington, J. A. (giving the judgment of the Court):

1. These are appeals brought against an order made by Judge Chism in the District Court whereby he struck out applications made by the Respondent pursuant to Sections 4 and Section 17 of the Matrimonial Proceedings and Property Ordinance (Cap. 192 "The Ordinance"). The appeals are made pursuant, in the case of the Section 4 application, to leave granted by Judge Chism and in respect of the Section 17 pursuant to leave granted by Macdougall J.A. in this Court.

2. It is not necessary to go into the background of this matter in great detail. The basic chronology is that on 11th May, 1984 the Petitioner filed a petition for divorce and on 13th February, 1985 a decree nisi was granted. The question of ancillary relief was as usual adjourned to chambers. The decree nisi was made absolute on 10th April, 1985. Notice of intention to proceed with the application for ancillary relief was filed on 13th January, 1986 and on 28th February of that year the Petitioner filed an affidavit of means. The Appellant filed her own affidavit of means on 5th March, 1986 and the hearing of this matter started before Hansen D.J. on 10th March, 1986. However in April of that year, while the matter was still pending, an application was made by the Appellant for legal aid and the proceedings were consequently adjourned. They resumed on 16th July, 1986 and were then adjourned again until 23rd October, 1986.

3. During the course of the hearing before Judge Hansen evidence however emerged that the Petitioner had transferred a flat to his mother, the 2nd Respondent in Appeal No. 119 of 1989, and he conceded that this was done to prevent the Appellant from being able to obtain possession of that flat. Accordingly leave was given to the Appellant to issue an application pursuant to Section 17 of the Ordinance and the matter was further adjourned to be heard de novo. Notice under Section 17 was duly filed on 11th November, 1986. There was then a lengthy period of some two and a half years before, on 11th May 1989, application was made by both the Petitioner and the 2nd Respondent for dismissal of the applications for want of prosecution. The 2nd Respondent's application was supported by an affidavit sworn by her daughter, Mdm. CHAN Kwok Chuen, stating that the 2nd Respondent's health had very rapidly deteriorated in the last two years and that because of the delay in prosecuting these proceedings she would now be placed at a severe disadvantage in opposing the application under Section 17.

4. Several grounds of appeal have peen filed but in the event only two of them require our attention. The 1st ground of appeal is that there is no statutory limitation period laid down in either Section 4 or Section...

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