Hannelore De Lasala v Ernest Ferdinand Perez De Lasala

CourtCourt of Appeal (Hong Kong)
Judgment Date17 December 1976
Judgement NumberCACV6/1976
Subject MatterCivil Appeal


on appeal from the High Court
Divorce Jurisdiction Action No.14 of 1970
1976 No. 6



Coram: Pickering, J.A., McMullin and Leonard, JJ.

Date of Judgment: 17th December, 1976.




Pickering, J.A.

This appeal runs to jurisdiction. For the sake of convenience I will refer to the petitioner as "the Wife" and to the respondent as "the Husband" although that once mutual status has been terminated. The parties were married in Hong Kong on 17th February, 1966, and there is one child of the marriage now aged 10 years old. On the 31st October, 1969 the Wife commenced wardship proceedings and on the following day petitioned for divorce making allegations which the Husband indicated he would contest. In December, 1969, the Husband's solicitors intimated that, if certain arrangements as to custody and finance, which they set out in a letter to the Wife's solicitors, were acceptable to the Wife and if she would agree to petition for divorce solely on the ground of adultery, the Husband would neither defend that petition nor cross petition. The Wife agreed and on 16th January, 1970, by consent, Briggs, J. (as he then was) gave leave to file a further petition and to implement the proposed financial arrangements which were then contained in a Deed of Arrangement exhibiting two draft trust deeds. Pursuant to the leave granted, a second petition was presented on the 31st January, 1970 and on the 25th March of that year the first petition was dismissed by consent. On the 21st May, 1970, Briggs J. granted a decree nisi of divorce on the second petition and adjourned into chambers the matter of the maintenance and welfare of the child. On the same day the judge, by consent, made orders for custody and access, approved the Deed of Arrangmenet and ordered that upon the payment of the monies agreed to be paid under the Deed of Arrangement and upon the coming into force of the two trust deeds, the prayers for financial provision should stand dismissed. The monies were paid and the trust deeds came into force on the 30th May, 1970 upon which date the decree of divorce was made absolute.

2. By a summons dated 1st August, 1975, the Wife applied to set aside or vary the consent order dismissing her prayers for financial provision for herself and the child of the marriage and also applied for orders for such financial provision. On the 19th January, 1976, the summons was, by leave, amended to include an application for variation of the financial arrangements contained in the three deeds. The summons was heard by Huggins, J. (as he then was) in January of this year who, upon an immediate ruling, disclaimed jurisdiction. This appeal lies against that disclaimer from which, in one respect only, the learned judge resiled in his subsequent written ruling.

3. At the heart of the learned judge's ruling lay his acceptance of the proposition put forward on behalf of the Husband to the effect that, it having been agreed in the Deed of Arrangement sanctioned by Briggs, J. in 1970 that the Wife would make no further financial claim or demand against the Husband, she is now prohibited from making any financial application to the Court. It was common ground that the parties could not, by simple agreement, debar future financial claims either of a type which could have been made at the time of the decree absolute or of a nature which did not then exist but which came into being only by virtue of subsequent legislative provisions. The argument on behalf of the Husband in the court below however was that the court had powers which the parties did not possess and could do what the parties could not, so that once the court had sanctioned an agreement not to make any further financial claim or demand against the Husband, the effect of the sanctioned agreement was to debar any further claims. That the parties cannot by their unvarnished agreement bar such further claims is clear from Hyman v. Hyman(1) a common law rule now clothed by statute both in England and Hong Kong, the English provision being originally section 1(2) of the Maintenance Agreements Act, 1957, but now section 34(1) of the Matrimonial Causes Act, 1973, and the Hong Kong provision section 14(1) of the Matrimonial Proceedings and Property Ordinance, Cap.192.

4. The nub of the Wife's argument on this part of the case is that the Court cannot by Order circumvent the statutory provision thereby converting the illegal and void into the valid. Mr. Jackson, for the Wife, submitted that what had led the learned judge at first instance into error was the case of L. v. L.(2) where it was held that the Court had no jurisdiction to entertain a fresh application for maintenance by a wife who had, in pursuance of an agreement sanctioned by the Court, received an agreed capital sum at the same time having her application for maintenance dismissed. It was held in that case that the court had no jurisdiction to entertain a fresh application for maintenance by a wife who had, in pursuance of an agreement sanctioned by the Court, received an agreed capital sum and had her application for maintenance dismissed and that section 1 of the Matrimonial Causes (Property and Maintenance) Act, 1958, which empowered the Court to make maintenance orders, not only, as formerly, "on" a decree but also "at any time thereafter", did no more than enlarge the time within which an existing jurisdiction in relation to maintenance awards might be exercised, by enabling the Court to award maintenance either "on" a decree or "at any time thereafter" and that there was no jurisdiction, once an application for maintenance has been dismissed, to entertain a fresh application or a plurality of applications.

5. It was Mr. Jackson's contention that the result in L. v. L.(2) was arrived at per incuriam. Counsel referred to the fact that when L. v. L. was decided there was already in existence powerful Australian authority holding that the correct view was the quantitative and not the temporal view; that is to say that the words "at any time thereafter" sanctioned a plurality of applications and not merely one application which could be made either "on" the decree or "at any time thereafter". Counsel referred further to the statutory prohibition upon the denial of further applications contained in section 34(1) of the Matrimonial Causes Act, 1973 to which I have already referred and cited also the case of Barnard v. Barnard(3) where a husband, having been ordered to pay to the wife maintenance at the rate of one shilling a year, moved for leave to appeal against that order. Ormrod, L.J., refusing leave to appeal, said that when applications for maintenance were governed by section 19(3) of the Matrimonial Causes Act, 1950, as that subsection was formerly worded, the court was empowered to order a husband to make payments for the wife's maintenance "on any decree for divorce or nullity of marriage," and it was not uncommon for nominal orders to be made, in order to keep alive the wife's rights. That subsection, however, had now to be read in the light of the amendment, made to it by section 1 of the Matrimonial Causes (Property and Maintenance) Act, 1958. For the words "on any decree for divorce or nullity of marriage" there had to be read the words "on pronouncing a decree nisi for divorce or nullity of marriage or at any time thereafter, whether before or after the decree has been made absolute." The practical effect of that amendement, Ormrod L.J. said, was that a nominal order for maintenance no longer served any useful purpose. The effect of Barnard v. Barnard, counsel urged, was that a party could apply to the court for financial provision even though his or her earlier such application had been dismissed.

6. A similar result to that in Barnard v. Barnard had been arrived at in the cases of Burton v. Burton(4) R. v. R.(No.2)(5) and M. v. M.(6), Whilst the last-mentioned three cases were subsequent to L. v. L. and did not follow that case, Barnard v. Barnard(3) had preceded L. v. L.(2) but neither Barnard v. Barnard, the Australian cases nor the statutory prohibition contained in section 1(2) of the Maintenance Agreements Act, 1957, had been quoted to the court in argument in L. v. L. which case, Mr. Jackson asserted, had been decided per incuriam.

7. In any event, the argument continued, Barnard v. Barnard was binding upon the Court of Appeal in England whereas L. v. L. was not, the reason being that Barnard v. Barnard was a decision of a court of three judges whereas L. v. L. was an interlocutory appeal decided by only two judges. The authority for this propesition was the case of Boys v. Chaplin(7) where the Court of Appeal held that the case of Machado v. Fontes(8) was not binding upon it being an interlocutory appeal heard by two Lords Justices only. In Boys v. Chaplin (supra) Lord Denning, M.R., said:

" I cannot regard such a decision as a binding precedent. There is no case in the books where a decision of two lords justices has been held to be binding when it is afterwards discovered to be wrong. On the contrary, there are three cases in which such a decision has been overruled by a court of the three or more. Thus the decision of the two lords justices in the old Court of Chancery in Tassell v. Smith (1858) 2 De G. & J. 713, C.A. was overruled by three lords justices in the Court of Appeal in Mills v. Jennings (1880) 13 Ch. D. 639, 648, C.A. The decision of two lords justices in an intellocutory matter in Daglish v. Barton

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