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Cwyw v Cch

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date07 April 2017
Year2017
Judgement NumberFCMP124/2013
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP124A/2013 CWYW v. CCH

FCMP 124 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 124 OF 2013

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IN THE MATTER of section 10 of The Guardianship of Minors Ordinance, Cap13
AND
IN THE MATTER OF CTS, the Minor

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BETWEEN
CWYW Petitioner
and
CCH Respondent

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Coram : Deputy District Judge A. Tse in Chambers (Not Open to Public)
Date of Hearing: 6 January 2017
Date of Judgment: 7 April 2017

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JUDGMENT

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1. There are 4 matters before the Court:

(1) By a Summons dated 1 September 2016, the Applicant (Mother) applied for a variation of a Costs Order Nisi dated 19 August 2016 from an order that each party do bear her/her own costs to an order that the Respondent (Father) do pay the Mother’s costs of and incidental to these proceedings;

(2) On the same day, the Father also took out a Summons for the Costs Order Nisi to be varied;

(3) By a Summons dated 15 September 2016, the Mother applied for leave to appeal against the Judgment dated 19 August 2016;

(4) On 23 December 2016, the Mother took out a Summons for leave to amend her draft Notice of Appeal.

2. Subsequently, the Mother’s application for variation of the Costs Order Nisi was withdrawn by consent. Her application to amend her draft Notice of Appeal was granted by consent. This Judgment only relates to the Mother’s application for leave to Appeal and the Father’s application for variation of the Costs Order Nisi.

Background

3. The background to these proceedings are set out in the Court’s Judgment dated 19 August 2016 and I do not propose to repeat them in detail here.

4. In short, the Mother and the Father had a short relationship, as a result of which TS (the Child) was born prematurely on 20 October 2011. The Father was at all times prepared to pay for the maintenance of the Child. However, the Mother was unhappy with the amount that was paid. She took out an application for maintenance of TS under section 10(2) of the Guardianship of Minors Ordinance (Cap 13) (GMO).

5. There was no dispute that the Father was the grandson of a well-known tycoon. The Mother was also from a well-off family. The Father relied on the “millionaire defence”. He stated that he was able to meet any reasonable order that the Court may make to avoid a lengthy and expensive discovery process of his means.

6. Throughout these proceedings, the Father has accepted that he should make appropriate and reasonable financial provision for the Child. In addition to his undertaking to pay for all the educational and medical expenses, the Father offered a sum of $120,000 per month as maintenance. The Mother was not happy with the Father’s offer. In addition to the Father’s undertakings, she asked for a monthly provision of $407,147 for the maintenance of the Child, a lump sum for the cost of setting up a new home, the purchase of a car and reimbursement of past expenses of over $7 million.

7. During the trial, it was the Mother’s case that the Father was in the category of the “super rich” and that the Child was entitled to a lifestyle beyond the imagination of “ordinary wealthy people”. She did not accept the Father’s assertion that he in fact lived very sensibly. Initially, the Father argued that both parents should be responsible for the maintenance of the Child and that the Mother’s resources should also be taken into account. During the trial, he agreed to be solely responsible for the Child’s maintenance but objected to what he says were attempts by the Mother to inflate her ever increasing claims to a figure far beyond any reasonable level of maintenance. He maintained that the Mother’s resources (including financial resources from her family) and her earning capacity should be taken into account when considering the question of her carer’s allowance. He asserted that the Mother’s disclosure of her means was less than full and frank and that she has deliberately divested herself of assets as a litigation tactic. He also argued that the Mother has a high earning capacity and could return to employment.

8. Prior to the trial, almost every single head of claim was in dispute.; The Father made a number of concessions during the trial, some of which have been accepted. He paid for a debenture for the English Schools Foundation (ESF). He has undertaken to pay for the school fees and a maximum of 1 extra-curricular activity per day. Subject to being allowed to consult with the Child’s doctors, he was prepared to pay for all medical and dental expenses, the parties have agreed that after the Court has assessed the reasonable “monthly sum”, that figure would be backdated, taking into account the amounts already paid by the Father. It was also agreed that the exact mathematical calculation could be left to the parties.

9. Despite those agreements, most of the items of claim remained in issue. After a 6 day trial and on 19 August 2016, the Court made an Order that:

“Upon the Respondent’s undertaking to the Court and to the Applicant to consult with Child’s doctors and therapists and to follow their recommendations; and

Upon the Respondent’s undertaking to the Court and to the Applicant to pay for all of the Child’s medical expenses; and

Upon the Respondent’s undertaking to the Court and to the Applicant to provide his solicitors with a sum of HK$100,000 as a float for reimbursement of medical expenses and cost of therapy and to top up such sum before it is fully expended; and

Upon the Respondent’s undertaking to the Court and the Applicant to pay for all school related expenses (inclusive of educational tools such as school books and stationery at school and uniforms) directly; and

Upon the Respondent’s undertaking to the Court and the Applicant to reimburse the Applicant for one extra-curricular activity per day upon the production of receipts; and

Upon the Respondent’s undertaking to the Court and the Applicant to provide the Child with Annual Passes for 3 adults and 1 child to Disneyland and Ocean Park every year unless varied by consent or until further order; and

Upon the Parties’ agreement and the Respondent’s undertaking to the Court and the Applicant that past expenses incurred for the Child shall be backdated and reimbursed to the Applicant at the rate ordered as monthly periodical payments in these proceedings; and

Upon the Applicant’s agreement that any previous payments made by the Respondent shall be taken into account in the calculation of reimbursements; and

Upon the acknowledgement by the Applicant that any shortfall for the cost of medical treatment and therapy up to 11 March 2015 has been paid by the Respondent; and

Upon the acknowledgement by the Applicant that any shortfall of education expenses had been paid on 9 February 2015; and

Upon the acknowledgement that a total sum of HK$540,000 had been paid by the Respondent as reimbursement for past general expenses incurred for the Child; and

Upon the Applicant’s acknowledgement that the Respondent has made payment of interim maintenance for the Child pursuant to the Order of Deputy District Judge S Lo dated 18 November 2013

IT IS ORDERED THAT:

That the Father shall pay a sum of $140,000 per month to the Applicant as periodical payments to the Child until the Child reaches the age of 19 or completes full time education, whichever is the later;

The estate agency fees and rental deposit for the rental of future accommodation for the Child shall be borne by the Respondent’

The Respondent shall pay a lump sum of HK$834,000 as the cost of setting up a new home and purchase of a new car;

The Respondent shall reimburse the Applicant a sum of HK$1,040 for the cost of the Child’s identity card;

Reimbursement of past expenses shall be made within 28 days hereof;

Liberty to apply; and

There shall be no order as to costs, such order to be in the form of an Order Nisi, to be made absolute if no objection were received within 14 days.”

Applicable Legal Principles

10. The test for leave to appeal is prescribed by statute. Section 63A(2) of the District Court Ordinance (Cap 336) provides:

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b) There is some other reason in the interest of justice why the appeal should be heard”

11. In KNM v HTF & Ors HCMP 288/2011 unreported, 7 September 2011, the Court of Appeal explained that:

“The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.

12. Where an appeal involves appealing against the exercise of discretion of the judge, the appellate court is entitled to interfere only where “the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong”: RK v YS HCMP 1969/2012, unreported, 1 November 2012.

13. As regards the alternative test under section 63A(2)(b):

“It is impossible to give an exhaustive list of the circumstances in which the Court of Appeal would find that there is some other reason in the interests of justice that an appeal should be heard. It is suggested that the Court of Appeal would continue to be guided by the practice under the...

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