Judith Miriam Clarke v Lindsay Clarke

CourtFamily Court (Hong Kong)
Judgment Date09 March 1983
Subject MatterMatrimonial Causes
Judgement NumberFCMC433/1980


Courts power to deal with applications to vary current order where a lump sum payments is to be made by instalments. ,

Different statutory considerations than as pertained in De Lasala v. De Lasala.




ACTION NO. 433 OF 1980





Coram: Judge Caird in Court.

Date: 9 March 1983




1. An order was made by Mr. Registrar Wilson on the 3rd of December 1981 whereby the Respondent was ordered to pay to the Petitioner a lump sum of £28,000 to be paid as follows:-

(a) £10,000 to be paid on or before the 31st day of December 1981; and

(b) £8,000 to be paid on or before the 31st day of July 1982.

2. The order further provided that the Respondent paid to the Petitioner periodical payments on a varying basis. Pursuant to the order the amount with which I am now concerned is $9,000 per month, $6,000 to the Petitioner and $1500 per month to each of the two children of the marriage.

3. The order commenced with various recitals including an undertaking by the Petitioner to consent to an order for the vesting of the custody of the two children jointly in the Petitioner and Respondent with care and control to the Petitioner.

4. It appears from the proceedings before me that in fact the order made by Mr. Registrar Wilson in relation to the sum of £28,000 was entirely by consent although such a recital is not made in the body of the order.

5. Is it worth further mentioning that the Respondent had. also been ordered to pay the Petitioner's costs with a provision these be paid by twelve equal monthly instalments beginning on the 31st day of March 1982, with disbursements to be paid on or before the 31st day of January 1982.

6. The matter comes before me by way of a judgment summons hearing brought by the Petitioner in respect of the Respondent's failure to pay the second instalment of £18,000, ordered to be paid on or before the 31st day of July last, and also upon the Respondent's application to vary the order by discharging the Respondent's obligation to pay to the petitioner the said sum of £18,000.

7. Affidavits have been filed by both the Petitioner and the Respondent and the Respondent gave oral evidence before me.

8. The facts appear clear. May I say at the outset I am convinced that Captain Clarke at the time of consenting to the order, after advice from solicitor and the Counsel, was an honourable man who tried to "put his house in order" despite previous differences for which he mayor may not be responsible ,and that subsequently due to matters beyond the picture shown in his personal "crystal ball" found himself unable to meet the balance of the capital sum to be paid, that is £18,000.

9. He borrowed £10,000 (approximate) to meet his initial instalment this from The Hong Kong and Shanghai Banking Corporation, as a bridging loan, pending the anticipated sale of his interest in a house property at Port Grimaud, France.

10. At the time of the order Mr. Gilbert Rodway of Counsel prepared, in his own hand, a schedule of the assets of both parties, showing that if the one third rule were followed, then the Petitioner would be entitled to a sum of approximately £12,000.

11. At that time it was believed by Mr. Rodway upon instructions that Respondent's equity in the Port Grimaud property was about $305,000.

12. There are three other matters worth mentioning as far as Respondent's assets are concerned. There is property in Canada with an equity of some $14,000 and to all intents and purposes, this property was disregarded by Mr. Hemens on behalf of the Petitioner, when cross-examining Respondent. I also propose to disregard this.

13. Included in Respondent's assets at the time of the order was furniture stored in the United Kingdom owned by him to the value of $85,600. I shall have more to say of this later.

14. The major asset owned by Respondent was his interest in a provident fund organised by his employer Cathay Pacific Airways and at the time of the order this was worth approximately $177,730. When giving evidence before me, Respondent indicated that his estimate of his present interest would be some $230,000.

15. His evidence before me which I accept is that the provident fund monies are not now available as collateral security for borrowing from any bank in Hong Kong.

16. I also accept that banks in Hong Kong do not look favourably upon assets offered as collateral security by private individuals, when such assets are outside the jurisdiction.

17. May I also state that I accept the evidence of the Respondent that he has endeavoured to sell the Port Grimaud property but without success and that there has been a considerable dimunition in the value of his equity.

18. The Petitioner is in partnership with a colleague, a Mr. MaCathy in the Port Grimaud property and it is obvious that the sale of a half interest presents more than usual difficulty even if market conditions were buoyant.

19. An exhibit was attached to Respondent's affidavit LC 7 which consisted of a report from BBR International S.A. Financial Advisors - Respondent's current cash flow is shown having a deficit of ($2,000) per month.

20. There has been produced Exhibit PR 4 relating to Respondent's debt servicing, which shows that instead of $9,000 as appears. in the Financial Advisors' report, the figure to-date has been $10,400 but a loan has been extinguished in January of 1983, leaving $1,400 no longer payable, leaving the new total of $9,000.

21. It is also worth mentioning that a figure of $900 is included in debt servicing being payable to the Petitioner. This represents Respondent's way of assessing "compensation" for having failed to pay the £18,000 due on the 31st of July last.

22. It is also worth noting that included in his figure of $9,000 per month is the payment to Hampton, Winter & Glynn, Solicitors for the Petitioner of $3,800 per month for her costs there being one more payment due at the time of hearing.

23. The Respondent gave evidence, which I accept that upon this particular debt being extinguished he then has to pay his own solicitors, they having obviously being somewhat tolerant in collection of their costs. He proposes to pay these costs at the rate of $5,000 per month, and estimate, some 14 months will be required to extinguish this liability.

24. In respect of the loan of £10,000 raised to provide the first payment to his wife as ordered by Mr. Registrar Wilson, the Respondent has been making repayments of $2,900 per month with interest of $1,400 a total of $4,300.

25. The original loan accounts which stood at $1,117,520 with Hong Kong and Shanghai Banking Corporation is shown in the statement dated the 11th of January as being now $90,500.

26. I am in no doubt that the Respondent when faced with substantial financial problems to the extent that he was verging towards the point of insolvency, has made and is still making an honest endeavour to meet his obligations, and it is worth reciting that. the total payments that he makes at present due to the break-down in his marriage are as follows:-

(1) Maintenance (including compensation), $9,900
(2) Wife's solicitors' costs $3,800
(3) Loan. (To pay wife £10,000) $4,300
Total: $18,000

27. In addition the Respondent pays $6,000 per month in respect of the mortgage of his interest in the French property which he intended to sell and liquidate...

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