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K v K

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
CourtFamily Court (Hong Kong)
Judgment Date06 August 2003
Subject MatterMatrimonial Causes
Judgement NumberFCMC5641/2001
FCMC5641/2001 K v. K

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 5641 OF 2001

_________________

BETWEEN

K Petitioner
and
K Respondent

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 2 – 13 January, 20 March – 4 April, 14 – 16, 29 – 30 May, 3 June & 9 July 2003

Date of Handing Down of Judgment : 6 August 2003

_________________

J U D G M E N T

_________________

1. This is the Petitioner Husband’s application under s.17 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 to set aside the dispositions made by the Respondent Wife of her interests in 2 elderly home business to third parties in the course of their divorce proceedings which he believes were made with the intention to defeat his claims for financial relief after the divorce. The parties are now already divorced, but for convenience purpose I shall refer to them as Husband and Wife in this judgment.

Background

2. The parties were married on 21st December 1977 in Guangzhou, China where they were then residents. It was the Husband’s 2nd marriage after his first wife died of cancer the previous year. There are 4 children of the family, 2 daughters from the Husband’s 1st marriage, and 2 daughters from this marriage. All of them are now adults, but the younger 2 are still studying in university in California, USA.

3. The parties settled in Hong Kong shortly after their marriage and their 2 daughters were born here. The Husband who studied music when he was in China, could only work in the factory in Hong Kong, while the Wife worked as a nurse. In 1987 an elderly home business was set up by the parties at Shau Kei Wan which was subsequently named ST Home for the Aged (“ST”) with the parties registered as partners in the business registration. This business formed the main source of income for the family in the subsequent years and enabled them to invest in the stock markets and to own numerous real properties in Hong Kong and overseas.

4. In the early 90s the Husband was allowed to immigrate to the US where he stayed until he obtained his residency green card when he then returned to Hong Kong.

5. In 1996 a second elderly home known as RG Home for the Elderly (“RG”) was set up with the Wife and her elder brother Wang registered as the partners in its business registration. It is however disputed by the Husband that he was in fact a beneficial owner with the Wife whereas her brother was registered in name only.

6. In 1995 the parties’ daughters E and J went to the US to further their studies. In 1997 the Wife also went to California to stay with the daughters in one of the properties purchased in the parties’ joint names, whilst the Husband remained in Hong Kong to run the 2 elderly homes together with the staff.

7. In early 2000 the Wife returned to Hong Kong to take over the business from the Husband. There were soon major disputes between the parties with each accusing the other of stealing money from the business, and the Wife also accusing the Husband of having an affair with one of the staff of the elderly homes and of trying to force her to give him a divorce.

8. In September 2000 the Husband issued a petition for divorce against the Wife based on her behaviour and for ancillary relief including periodical payments, lump sums and transfer of property order. The petition became contested when the Wife filed an answer and also cross-petitioned for divorce on his behaviour. These proceedings were subsequently replaced by the present one after the parties had agreed to a consensus divorce based on their separation for 1 year since 1999. The decree nisi was subsequently granted on 4th June 2002 and has since been made absolute.

9. On 16th April 2002 the Husband filed an application for maintenance pending suit on the ground that the Wife, having taken over the elderly home business, had prevented him from drawing money from the business accounts for his living expenses, as he used to do so in the past, and had also terminated all auto-payments for the mortgage instalments and utilities of their former matrimonial home at Taikooshing where he has been residing.

10. In her affirmation of means filed on 18th May 2002 in response to the Husband’s application, the Wife disclosed that as she no longer wished to run the 2 elderly home businesses, she had already transferred her interests in RG to her said brother Wang sometime in December 2000, and ST to her 2 daughters E and J in June 2001, and hence she had no means to pay the Husband any maintenance. This naturally came as a surprise to the Husband who promptly issued the present application on 21st May 2002.

11. Leave was then granted to the Wife’s brother and 2 daughters to intervene in the proceedings, and as the 2 businesses have since the transfer been incorporated into RG Home for the Elderly Limited (“RG Ltd”) and ST Home for the Aged Limited (“ST Ltd”) respectively, a director of both companies, Mr Young was also allowed to intervene on behalf of the companies.

12. Both the 2 daughters and Young have acted in person throughout the proceedings, whilst the Wife’s brother Wang who normally resides in Australia, was represented by Messrs. Oliver C.M. Chan & Co. The Wife was also legally represented during the initial stage of the divorce proceedings up to the hearing of the maintenance pending suit, but chose to act in person in this application until the middle of the hearing in March 2003 when she decided to be represented by the same Messrs. Oliver C.M. Chan & Co. who at about the same time obtained an order to discharge themselves from acting for Wang on the basis that they were unable to obtain further instruction from him.

13. All the parties as well as their witnesses have filed substantive affirmations and have given extensive oral evidence at the hearing except Wang. As the 2 daughters had to attend school in the US and could only come to Hong Kong for the hearing during their school holidays, the hearing dates had to fit into their schedule and they were also allowed to give their evidence first.

14. The matter was further complicated when the evidence revealed that the Wife’s brother Wang had sometime in the course of this application transferred his shares and interests in RG Ltd to yet 2 other persons known as Ms Sha and Ms 陳 both of whom resided in Shenzhen, China, according to the Company Registry records. As a result the Husband issued a further S.17 application for an order to set aside this disposition by Wang which has been consolidated with the first application for hearing, but neither Wang nor these 2 persons have since taken part in these proceedings.

The Law

15. S.17 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, provides : -

" (1) Where proceedings for relief under any of the relevant provisions of this Ordinance (hereafter in this section referred to as “financial provision”) are brought by a person (hereafter in this section referred to as “the applicant”) against any other person (hereafter in this section referred to as “the other party”), the court may, on an application by the applicant –
(a) if it is satisfied that the other party is, with the intention of defeating the claim for financial provision, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;
(b) if it is satisfied that the other party has, with the intention aforesaid, made a disposition to which this paragraph applies and that if the disposition were set aside financial provision or different financial provision would be granted to the applicant, made an order setting aside the disposition and give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payment or the disposal of any property);
(c) if it is satisfied, in a case where an order under the relevant provisions of this Ordinance has been obtained by the applicant against the other party, that the other party has, with the intention aforesaid, made a disposition to which this paragraph applies, make such an order and give such directions as are mentioned in paragraph (b);
(2) Paragraphs (b) and (c) of subsection (1) apply respectively to any disposition made by the other party (whether before or after the commencement of the proceedings for financial provision), not being a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice any such intention as aforesaid on the part of the other party.
(3) Where an application is made under this section with respect to a disposition which took place less than three years before the date of the application or to a disposition or other dealing with property which is about to take place and the court is satisfied –
(a) in a case falling within subsection (1)(a) or (b), that the disposition or other dealing would (apart from this section) have the consequence, or
(b) in a case falling within subsection (1)(c), that the disposition has had the consequence,
of defeating the applicant’s claim for financial provision, it shall be presumed, unless the contrary is shown, that the other party disposed of the property with the intention aforesaid or, as the case may be, is, with that intention, about to dispose of or deal with the property.
(4) In this section –
...

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