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Chan Man Ki v Yau Chun For

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date29 November 2018
Neutral Citation[2018] HKDC 1481
Judgement NumberDCCJ1564/2018
Citation[2019] 1 HKLRD 62
Year2018
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ1564A/2018 CHAN MAN KI v. YAU CHUN FOR

DCCJ 1564/2018

[2018] HKDC 1481

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1564 OF 2018

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BETWEEN
CHAN MAN KI Plaintiff
and
YAU CHUN FOR Defendant

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Before: Deputy District Judge K C Chan in Chambers (Open to Public)
Date of Hearing: 29 November 2018
Date of Decision: 29 November 2018

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DECISION

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1. By a written decision handed down on 28 September 2018 (“the Decision”), I dismissed the defendant’s application by summons taken out on 13 June 2018 to strike out the Statement of Claim and to dismiss the action on the ground that it is an abuse of process in that it is re-judicata in the wider sense (or is otherwise known as the Henderson v Henderson abuse).

2. By summons dated 10 October 2018, the defendant now seeks (a) leave to appeal against the Decision, and (b) to vary the costs order nisi made in the Decision.

3. The plaintiff’s claim, the relevant background and my reasons for refusing to strike out the Statement of Claim and this action are set out in the Decision and I will not repeat them here. For ease of reference, I adopt here the same abbreviations used in the Decision.

LEAVE TO APPEAL

Legal principles relevant to granting of leave to appeal

4. Section 63A(2) of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

5. It is trite that a reasonable prospect of success involves the notion that the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (unrep. HCMP 288/2011) and Hong Kong Civil Procedure 2017 §59/2A/4.

The proposed grounds of appeal

6. The defendant raises 8 grounds of appeal in the draft Notice of Appeal annexed to its summons. I will consider whether they have a reasonable prospect of success in turn.

Ground 1

7. The proposed Ground 1 reads :

“The learned Deputy District Judge erred in law in refusing to strike out this fresh action on disputes of financial matters (arising out from the marriage) taken out by the Plaintiff after decree nisi was made absolute on 19th December 2017 in FCMC6399/2017 (hereinafter refers as “Family Proceedings”) with the Plaintiff and Defendant as the Petitioner and Respondent thereof respectively on the ground that “… the plaintiff’s present claim is straight forward. It is based on a property right. The return of the Gifts is a matter of right” (Paragraph 33 of the Decision) and further held that by striking out the Plaintiff’s present action would effectively mean the Plaintiff be shut out from making a claim based on property right in civil court (Paragraphs 35 and 39 of the Decision) (Rossi v. Rossi [2007] 1 FLR 790, Lee Ming Mang Sharon v. Ng Siew Seng Richard & Others [2009] HKCFI 334 and Norman Eric Tomlin v. Michele Helene Tomlin [1994] HKCFI 127 and Park Young Sook v Chu Dean Yuan Franklin HCA 2353/2009, unreported, 15 July 2010). The leaned Deputy District Judge failed to appreciate that the commencement by the Plaintiff [sic] a separate set of civil proceedings for the similar relief was wholly misconceived and unnecessary and all that was necessary was for the Plaintiff to seek within the ancillary relief proceedings the necessary declarations and determinations. (Rossi v. Rossi [2007] 1 FLR 790 at §35)”

8. The gravamen of this ground, as I understand it, is that this court “failed to appreciate that the commencement by the Plaintiff [sic] a separate set of civil proceedings for similar relief was wholly misconceived and unnecessary and all that was necessary was for the plaintiff to seek within the ancillary relief proceedings the necessary declarations and determinations”, citing Rossi v Rossi [2007] 1 FLR 790 at §35. This quoted sentence in fact is an adaptation of what Mostyn QC said in paragraph 35 of the judgment in that case.

9. Rossi v Rossi dealt with an entirely different factual scenario and the observation in paragraph 35 of that judgment was made pertaining to the facts of that case. Rossi v Rossi was the consolidated trial[1] of the husband’s claims for ancillary reliefs and his claims by separate proceedings under the Partnership Act 1890 and the Trusts of Land and Apportionment of Trustees Act 1996 for declarations of beneficial interest and an account in relation to an antique business which he claimed had been a joint venture between him, the wife and her son from a former marriage, which after his arrest in 1993, was ran by the latter two alone. There were thus the separate proceedings pursued along side the ancillary relief proceedings. In that setting, Mostyn QC held obiter and in gist, that the question of the husband’s claim of beneficial interest in the business could and should have been adjudicated within the proceedings for ancillary relief even though the interest of a third party (the wife’s former son) was involved as the son could and should have been joined; and he observed that “the two separate sets of civil proceedings under the Partnership Act 1890 and TOLATA was wholly misconceived and unnecessary”[2]. The husband’s claim for beneficial interest was dismissed as the judge found against it on the facts.

10. The case is clearly distinguishable and is not an authority showing that the plaintiff’s present claim is “misconceived or unnecessary” and therefore an abuse under Henderson v Henderson.

11. I am of the view that Ground 1 has no reasonable prospect of success.

Ground 2

12. The proposed Ground 2 reads :

“In reaching the aforesaid Decision, the learned Deputy District Judge erred in law to have effectively pre-judged that the Plaintiff’s present action for the return of the Gifts was a matter of property right only and had no matrimonial implication and held that the Plaintiff should not make a claim during the Family Proceedings hence there was no abuse of court process for not seeking the remedies during the Family Proceedings. (Paragraphs 33, 39 and 44 of the Decision).”

13. This ground is based on a misunderstanding or mis-reading of my Decision.

14. In paragraphs 33, 39 and 44 of the Decision, I said

“33. In contrast, the plaintiff’s present claim is straight forward. It is based on a property right. The return of the Gifts is a matter of right, if the plaintiff establishes her ownership to the Gifts.”

“39. There is therefore no compelling reason advanced why the plaintiff should in effect be confined to making her present claim by way of an application for ancillary relief, and be shut out from making a claim based on property rights in the civil court. In my judgment therefore, I do not hold that the plaintiff should have made the present claim by an application for ancillary relief in the Divorce Proceedings, such as to make her present claim an abuse.”

“44. For the above reasons, I hold that the present claim is not an abuse of process and I dismiss the defendant’s summons with costs to the plaintiff to be summarily assessed on paper and paid forthwith with certificate for counsel. This costs order is nisi only and will become absolute unless an application to vary the same is made within 14 days hereof.”

15. In paragraph 33 of the Decision, I observed what the nature of the plaintiff’s pleaded claim was as compared to the nature of a claim for ancillary relief (alluded to in paragraphs 28-32 of the Decision) as part of my analysis as to whether the claim could and should have raised in the Divorce Proceedings under the principles of Henderson v Henderson abuse. There, I made no determination, as is complained here, “that the Plaintiff’s present action … had no matrimonial implication” (whatever that means). Rather, as stated in paragraph 27 of the Decision, it is not disputed that it may be possible for the plaintiff to obtain the return of the Gift by an application for ancillary relief, but according to the governing principles and considerations thereunder.

16. In the Decision, I have never “held that the Plaintiff should not make a claim during the Family Proceedings”.

17. I conclude that Ground 2 has no reasonable prospect of success.

Ground 3

18. The proposed Ground 3 is this :

“The learned Deputy District Judge erred in law to find effectively that the Plaintiff was entitled to choose whatever court that she found as appropriate and that she could decide not to stay with the Family Court to resolve the disputes on the Gifts that arose out of the matrimonial relationship of the Plaintiff and the Defendant (i.e. Cherry-pciking) (Lam Pak Cheung v Lin Zhen Lue [2009] 1 HKLRD 35, Collin Navigation Co SA v Perusahaan Pertambangan Minyik Dan Gas Bumi Negara [1986] HKC 78 (CA) and Far Wealth Ltd and another v Lo Ki Mou and another, HCA 1617/2016 unreported, 19 October 2017).”

19. This ground presupposes that there is in existence some statute, rule of substantive or procedure law (other than Henderson v Henderson) that restrict the plaintiff to commence her present claim in the Family Court. None was shown to me in the hearing of the striking out, or in this hearing for leave. The 3 cases cited in this ground all concerned factual situations where there were actually 2 parallel proceedings commenced and pursued in relation to the same claim(s) or subject matter(s). That is not the situation in the present case.

20. There is no reasonable prospect of success for Ground 3.

Ground 4

21. The proposed Ground 4 is this :

“The learned Deputy District Judge failed to appreciate that Cherry-picking by the Plaintiff...

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