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Jah v Vh

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date23 June 2010
Subject MatterMatrimonial Causes
Judgement NumberFCMC14350/2009
CourtFamily Court (Hong Kong)
FCMC014350/2009 JAH v. VH

FCMC 14350 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14350 OF 2009

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BETWEEN
JAH Petitioner
and
VH Respondent
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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 20 May 2010

Date of Judgment: 23 June 2010

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JUDGMENT
(Leave to file Answer and Direction)

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Introduction

1. There are two summonses presently before me. The first is the respondent husband’s summons dated the 8 February 2010 seeking an order that inter alia he be granted leave to file and serve his Answer within 14 days from the date of the order. In other words he is seeking leave to file his Answer out of time.

2. The second is a summons issued by the wife dated the 29 April 2010 seeking an order that:

1. without prejudice to the Wife’s position that her Petition (in FCMC No. 14350 of 2009) ought to remain in the special procedures list and/or that decree nisi ought to be granted on the Wife’s Petition and that the Husband’s Petition ought to be dismissed together with costs, the cause FCMC 14350/2009 be consolidated with the cause FCMC 4402/2010 and be carried on in the title as per the proposed “Title of Consolidated Cause” hereto annexed and marked “A” with the description of the Petitioner and Respondent be generally referred as “Wife” and “Husband”;

2. The Wife’s Petition in FCMC 14350/2009 do stand as the Petition and the Husband’s Petition in FCMC 4402/2010 do stand as the Cross-Petition in this consolidated cause;

3. The parties’ Financial Statements (Form Es) filed in FCMC 14350/2009 do stand in this consolidated cause;

4. Such other directions as this Honourable Court may deem fit; and

5. Costs be provided for.

3. This summons is necessary given that the husband has also issued his own divorce petition dated the 16 April 2010 based on the wife’s unreasonable behaviour. This is notwithstanding the fact that he has issued an application for leave to file an Answer out of time. It is not clear exactly why he chose to do this. Presumably in order to put forward his own case on the reasons for the breakdown of the marriage. In any event, in order to prevent duplication and unnecessary confusion the wife’s solicitors have taken the sensible step of issuing the current summons.

4. Dealing with the wife’s summons first, the husband has consented to this in his solicitor’s letter of the 19 May 2010 and I accordingly make an order in terms of paragraphs 1 – 3 to that effect. There shall be no order as to costs on that summons.

5. There is thankfully some measure of agreement concerning other matters. The parties have for example, agreed to enter into mediation with a view to resolving all matters in dispute and have appointed Ms Y as their mediator. This is to be encouraged.

The issues to be determined

6. The main issue to be determined then is whether or not the husband should be given leave to file his Answer out of time. Other matters arise from this and will be discussed below.

7. Reference was also made, during the hearing, to the manner in which the wife’s petition has been drafted and I was taken to Order 18 rule 7 of the White Book. No formal application had been made in that respect and the wife objected to the suggestion that the court could deal with this of its own motion. Consequently that issue was not taken any further.

Background

8. The parties married on the 8 June 1987 following a substantial period of cohabitation of some 8 years or so. They have two children both of whom are presently studying at HB School. The daughter, F is now aged 28 and the son, C is 26. The husband has expressed the wish that the children should both go into the family business. The husband is Cambodian and he holds dual French and Cambodian nationality. He is presently based in Cambodia. The wife is a Korean national and she is based in Hong Kong. The husband is in his early 70’s and the wife is 55 years old. They separated on the XX July 2009 and on the 16 November 2009 the wife issued proceedings based on the husband’s unreasonable behaviour.

9. The husband is a well-known businessman of some repute in Cambodia. Both he and the wife hold substantial business interests through a myriad of different corporate structures. They also hold a large number of properties. The extent of their wealth is yet to be determined, but it is likely to be very considerable.

10. It is accepted by both sides that the divorce petition was eventually served on the husband in Hong Kong on the 2 January 2010, whilst he was having his hair cut in the barbershop in the Hotel. It is also accepted that the time for filing of the Answer expired on either the 30 January or the 1 February 2010. The summons presently before me was filed on the 8 February 2010.

11. The parties also each accept that the marriage has irretrievably broken down and that a decree nisi will be pronounced in due course. The difficulty is with the very serious allegations made by the wife against the husband in the particulars of the divorce petition. The husband is willing to proceed on the basis of a “watered down” petition. He has waived privilege with respect to a number of without prejudice letters. These were produced for the court’s consideration during the hearing. His position is made clear in that he said that he was willing not to file an Answer if the wife agreed to amend the petition in line with his amended draft petition. He also agreed to split the family assets equally referring quite correctly in his solicitor’s letter to assets belonging to both parties. The wife chose not to waive privilege in respect to her own without prejudice correspondence. She is maintaining her open position. In her solicitors letter of the 12 February 2010 she states as follows:

It is clear beyond peradventure that this marriage has irretrievably broken down. We understand that your client is concerned that his representation (reputation) will be damaged by the existing allegations of unreasonable behaviour, but no doubt you have advised your client that unless the Divorce Petition is defended, the contents of a Divorce Petition are entirely confidential, and the papers are available only to the parties, and no outside third parties, save and except the parties legal advisors.

You have no doubt advised your client that if he defends the Divorce Petition, then the Trial is in open Court. Our client has supporting evidence in respect of her allegations, and witnesses available to give evidence.

Our client believes that your client wishes to delay the progress of the divorce, only because he wishes to delay any progress in the ancillary relief proceedings.

With that in mind, notwithstanding the fact our client confirms that the contents of her existing Petition are true and correct, if financial settlement can first be reached our client would be prepared to amend the allegations of unreasonable behaviour to the usual standard and mild terms.

And later in the same letter:

To summarise, our client would agree to the following:

1. Our client will undertake to amend her existing Divorce Petition to a mild and agreed Petition provided financial settlement terms have been agreed between our clients, and such terms are encompassed in an endorsed Consent Summons.

2. Until such time as settlement terms have been reached, our client will undertake not to take any further steps to progress her existing Divorce Petition without giving your client 14 days notice of the same.

3. Our clients Form E’s will need to be exchanged by the 22nd February 2010.

4. Your client must agree to attend mediation in Hong Kong commencing the week beginning the 22nd February 2010.

5. Your client must instruct Maruhan Japan Bank to deposit the sale proceeds of his shares into a nominated bank account in the joint names of our clients, or into your firm’s bank account on your undertaking not to transfer the money without an Order of the Court.

6. Your client must undertake not to dispose of any assets of US$20,000.00 or more without our client’s consent or Order of the Court.

7. Your client must undertake not to defend the agreed mild Divorce Petition, when filed.

12. It appears that the husband has complied with most if not all of these requirements. Given that the court has not had sight of all the without prejudice correspondence, it is not therefore clear why some consensus was not reached on the issue of the divorce petition itself and the parties still chose to proceed on a litigious basis.

13. In any event there was one difficulty which then became apparent namely that the husband’s without prejudice position (which was now open) did not accord with his original open position as set out in his draft Answer. After seeking clarification his counsel confirmed that the husband now seeks to file “an Answer” which accords with his open position as stated in court. He does not seek leave to file the draft Answer originally proffered for the court’s consideration.

The law

14. Both sides have referred me to a number of cases on point, including the Hong Kong Court of Appeal decision namely YSP v HFF & HA, CACV No 235 of 2003, 15 October 2003 (unreported). In that case the relevant principles were identified as follows:

13. The following are the relevant principles gleaned from the authorities on how the court should deal with the delay and extension of time by a party in filing an answer to the petition.

1. The starting point is that under the special procedure the registrar has certified that the petitioner has proved the contents of the petition and is...

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