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CACV000406/2002
CACV 406/2002
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 406 OF 2002
(ON APPEAL FROM FCMC NO. 1453 OF 2002)
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| BETWEEN |
| KGL |
Petitioner |
| AND |
| CKY |
1st Respondent |
| LSS |
2nd Respondent |
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Coram: Hon Woo JA and Cheung JA in Court
Date of Hearing: 20 March 2003
Date of Judgment: 25 March 2003
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J U D G M E N T
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Hon Woo JA (giving the judgment of the Court):
Introduction
1. This is an appeal against the Order dated 6 September 2002 made by H H Judge Gill in the Family Court whereby he varied the consent order dated 14 May 2002 made by him in respect of interim maintenance, leave having been obtained from the judge. By that consent order, the 1st respondent, the husband, was ordered to pay to the petitioner, the wife, interim maintenance in the sum of $10,000 per month commencing on 8 May 2002 and on the 8th day of each calendar month thereafter.
2. The background facts can be found in the judge's judgment dated 6 September 2002. Briefly, the parties were married in New York in February 1987. In 1992, the husband returned to Hong Kong to work for the stockbroking firm founded by his father. The wife returned two years later and thence until May 2002, the parties lived together in the home of the husband's parents. The wife did not take up employment and was dependent on the husband for support and his parents for accommodation.
3. The husband had developed a relationship with another woman and by her a child was born in October 2000.
4. In early 2002, the wife petitioned for divorce and made various interlocutory applications including those ex parte for injunctions. The husband moved out to live with the mother of his child. The husband's parents wanted the wife out of their flat.
5. The wife chose a newly developed flat in Tseung Kwan O as her home that the husband would buy for her, but before the completion of the flat, the parties agreed that she would move to a serviced apartment. In the consent order of 14 May 2002, it was recorded that the husband undertook to pay two months' rent for the serviced apartment and to meet all the mortgage instalments of the Tseung Kwan O flat. He also agreed to pay, and it was so ordered by consent, interim maintenance of $10,000 per month from 8 May 2002 to the wife.
6. In July 2002, the wife applied to vary upwards the consent order. She asked for a total of $173,465 for decorating and furnishing the Tseung Kwan O flat. She also asked for about $25,000 per month as her monthly expenses. Further, she sought assistance to meet her legal costs. When she first committed herself to petitioning for divorce she applied for and was granted legal aid. But when it became apparent that she was the registered owner of real estate that she was not yet occupying, her legal aid certificate was discharged. After the discharge, she had incurred legal costs to the extent of $180,000 and would incur further legal costs until the proceedings are over.
7. In his judgment, the judge referred to ss 3 and 11(7) of the Matrimonial Proceedings and Property Ordinance, Cap 192 and A v A (Maintenance Pending Suit Payment of Legal Fees) [2001] 1 WLR 605. He rejected the wife's claim for the expenses for fitting out the Tseung Kwan O flat, allowed her maintenance pending suit to be varied from $10,000 a month to $14,000 a month, and also allowing a further sum of $20,000 a month for the purpose of meeting her legal costs.
The appeal
8. It is against this Order of the judge that the husband appeals.
9. There is no challenge to the judge's increasing the amount of maintenance pending suit to $14,000 a month. The only dispute is on the additional monthly sum of $20,000 for the wife's legal fees.
10. In the first ground of appeal, the judge's Order is challenged, based partly on the lack of jurisdiction. This ground is now dropped.
11. However, Ms Wee, for the husband, argues that the term maintenance pending suit in s 3 of the Ordinance should not include legal fees but only bear the meaning set out in The New Shorter Oxford English Dictionary, 1993:
"The action of providing oneself, one's family, etc., with means of subsistence or the necessaries of life; the fact or state of being so provided. Also, enough to support life; means of subsistence; the amount provided for a person's livelihood."
12. A v A is the basis for including legal costs in maintenance pending suit of an applicant in matrimonial proceedings. Holman J said at 610 of the report, and we agree:
" There is no doubt that in all sorts of ways 'maintenance' does not extend to, and orders for maintenance pending suit have for many years been intended to cover, matters which are not ones of 'daily living'. Provision may be included, if there has been a history of it, to enable the payee to make charitable payments or payments to a third party, such as a dependent parent. Such payments are not part of 'living' expenses of the payee at all, but may be a component of the order. Further, provision can clearly be made to cover legal costs as such - for example, if the payee has a current need to fund litigation with a third party; for example, a landlord trying to obtain possession of the home.
But Mr Singleton submits that the costs of the suit itself are in a different category. I do not agree. Just at the moment they are, after the provision of a roof over her head and food in her month, the wife's most urgent and pressing need and expense. She could manage without holidays, though I have made some provision for them. She could no doubt manage for a while without buying new clothes. She could manage without her manicures, pedicures and yoga and keep fit classes, for all of which I have, on the facts of this case, made provision. She could even manage without the provision for forms of private medical care (to which the family has been accustomed) for, if necessary, she could fall back on the NHS. But she simply cannot make any progress with the dominating issue in her life if she cannot pay her lawyers, and for this the state will not provide."
13. Charles J in G v G [2002] 3 FCR also took the same view.
14. Ms Wee also argues that the payment of the additional $20,000 per month to the wife was in fact by way of a lump sum, albeit by instalment payments, for outstanding legal fees in the total amount of $180,000. After referring to A v A, the...
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