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Csl v Wwk

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date25 February 2004
Subject MatterCivil Appeal
Judgement NumberCACV278/2003
CourtCourt of Appeal (Hong Kong)
CACV000278/2003 CSL v. WWK

CACV000278/2003

CACV 278/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 278 OF 2003

(ON APPEAL FROM FCMC 1911 OF 1991)

BETWEEN
CSL Petitioner
AND
WWK Respondent

Coram: Hon Cheung JA and Hon Yuen JA in Court

Date of Hearing: 11 February 2004

Date of Judgment: 25 February 2004

________________________

J U D G M E N T

________________________

Hon. Cheung J.A. :

The appeal

1. This is an appeal by the petitioner against the decision of Deputy Judge D'Almada Remedios.

The background

2. The petitioner was married to the respondent on 10 September 1984. They were divorced on 22 October 1991. There were two children of the marriage, a daughter born on 7 July 1985 and a son born on 11 March 1989.

3. After the divorce the respondent has since remarried. He has two children from this marriage, born in 1993 and 1995 respectively.

The maintenance order

4. On 4 September 1991 a consent order ("the first order") was agreed to by the parties concerning the financial provisions for the petitioner and the children of the marriage. The respondent was ordered to pay the petitioner HK$1,500 per month as maintenance for herself and HK$750 per month as maintenance for each of the two children.

5. The monthly maintenance was to commence (retrospectively) on 1 March 1991 and thereafter on the first day of each succeeding month. There was provision for an annual increase of the maintenance and additional payments for Chinese New Year.

6. After June 1992, no payment was made by the respondent and by a further order dated 10 September 1993 ("the second order") the respondent agreed to repay the arrears of maintenance then due of HK$37,288 together with the costs of the application, totalling $41,288 by instalments of $800 each. The payments were to commence on 15 September 1993. The husband was obviously further required to continue with the maintenance payment under the first order, which was not disturbed by the second order.

The petitioner went to Canada

7. The petitioner emigrated to Canada with the two children in 1997. She obtained the permission of the court to take the children outside Hong Kong. She stayed in Canada until April 2001. She then returned to Hong Kong. Apart from a very short period of a few months, the two children had continued to live in Canada.

8. During the times when the petitioner was in Hong Kong after her return, she lived in a property owned by her father. Her father had since passed away.

The applications

9. On 13 May 2002 the petitioner issued a judgment summons seeking arrears of maintenance from 1 March 1991 onwards. By the time the summons came before the judge in 2003, that was a period of 12 years and the sum claimed was approximately $670,000.

10. The judge ruled that the petitioner could not claim the arrears of maintenance beyond a twelve-months period ending May 2002. The arrears of maintenance from 13 May 2001 to the date of the judgment on 18 July 2003 was HK$176,803. The judge ordered this sum to be paid from the pension of the respondent which he would receive on his retirement from his present employment with China Light and Power Company Limited ("China Light and Power"). The pension will be about HK$1,000,000. By the respondent's own calculation, the pension (which is under the MPF) is about HK$1,200,000.

11. The petitioner also applied to attach any maintenance payment to her against the respondent's income directly.

12. The respondent himself applied for a variation of the first order so that he would not be required to pay any maintenance at all as from July 1993, and for a variation of the second order to the extent that all arrears ceased in June 1997.

13. The judge ordered the respondent to pay HK$1,700 per month to each of the two children of the family until they reach 18 years of age or upon cessation of their full-time education, whichever is the later. The first payment was to commence on 1 August 2003. The payment is to come directly from the income of the respondent.

14. The judge also ordered the respondent to pay the petitioner a lump sum of HK$30,000 within one month, and upon payment of the arrears of the maintenance due for the period from May 2001 to July 2003 in the sum of HK$176,803, the periodical payments to the petitioner be dismissed. In the interim, the periodical payment payable by the respondent to the petitioner was to be varied to $1 per annum.

15. The petitioner now appeals against these orders.

The petitioner's position

16. The petitioner is now 48 years of age. After the marriage, she stayed at home as a housewife. In 1989 she also did some part-time work to supplement the income of the family.

17. After the divorce, she realized that she has to depend on herself. She was a form 5 graduate. She took up evening courses and managed to secure employment with Cathay Pacific Airlines, ultimately as a secretary. She was successful in applying for immigration to Canada in her capacity as a secretary.

18. She was employed full-time when she was in Canada. After her return to Hong Kong in 2001 she was only able to find some part-time jobs. At the hearing in July 2003 she was unemployed.

19. When she was in Canada, she bought a flat in the sum of C$105,000. Part of this sum came from her own savings. She had since borrowed C$50,000 from a friend Mr. Leung to redeem the mortgage on this flat. Mr. Leung had lent her another HK$100,000. She was therefore indebted to Mr. Leung in the sum of C$50,000 and HK$100,000.

20. She had savings of about C$10,000 and HK$73,000. Her monthly expenses were approximately HK$9,550.

21. She also has to pay rent of HK$1,500 per month for a public housing unit in Hong Kong. This unit is a replaced flat from the original public housing unit the parties were living in during their marriage.

22. The petitioner informed this Court that the rental has been paid by a friend who uses this flat. She also said that she has no interest in her father's property. It was bought by her sister for the use of the father.

23. According to the petitioner, recently she had transferred her flat in Canada to Mr. Leung in order to repay her debts to him. She and her children are living rent free in that flat. She had spent substantial time in Hong Kong since 2001. But as she is required to look after the children and she is unable to obtain employment in Hong Kong, she had decided to return to live in Canada. She came back to Hong Kong for the purpose of this appeal. She also informed this Court that she had cervical cancer and had an operation. At the moment she does not require medical attention for this illness.

The position of the respondent

24. The respondent is now 53 years of age. He works as a survey foreman in the engineering projects department of China Light and Power. His basic salary is HK$15,534. Together with perks, his average monthly income per month is HK$21,011.

25. He purchased a flat in 1997 for his new family. The flat is in the joint ownership of himself and his new wife. The down-payment of HK$102,000 was paid by his wife who borrowed the amount from her sister. The property is mortgaged at about HK$900,000. The monthly mortgage payment was about HK$8,000 and the mortgage was to have been fully repaid by October 2010 (he had since extended the repayment to 2014). The market value of the property was HK$850,000 and the amount of mortgage was about HK$720,000.

26. On his retirement at the age of 65, he will receive a pension of about HK$1,200,000. His savings were about HK$20,000. His monthly expenditure is about HK$21,000. He also owned 600 China Light and Power shares.

Enforcement of arrears of maintenance

27. Section 12 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) provides that...

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