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L v C

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date08 November 2012
Year2012
Judgement NumberFCMC11799/1996
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC11799/1996 L v. C

FCMC 11799/1996

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11799 OF 1996

_______________

BETWEEN

L Petitioner
(Judgment Debtor)
and
C Respondent
(Judgment Creditor)

_______________

Coram: Before Deputy District Judge I. Wong in Chambers (Not Open to Public)

Date of Hearing: 5th November, 2012

Date of Handing Down Reasons for Decision: 8th November, 2012

__________________

REASONS FOR DECISION

__________________

The Application

1. This is an application on the part of the Respondent (wife) for leave

(1) to enforce payment by the Petitioner (husband) of arrears due more than 12 months, in the total sum of $330,000 pursuant to section 12 of the Matrimonial Proceedings and Property Ordinance, Cap. 192; and

(2) to issue a judgment summons for the arrears.

The Background

2. The Petitioner petitioned for divorce in about 1996.

3. Upon granting of the decree nisi on 9th April, 1998, the Petitioner was ordered to pay the Respondent a sum of $2,500 per month being the maintenance of the child of the family (the daughter) until her 18th birthday or cessation of full time education whichever is the later.

4. The daughter was born in March, 1994. At the time of the decree nisi, she was about 4 years old and is now over 18.

5. The Respondent says that the Petitioner defaulted his monthly payment as early as from the 2nd month, i.e., as from 1st May, 1998 onwards. She did not receive a single cent since then. Her summons was taken out on 21st June, 2012 which means a lapse of about 14 years.

6. According to Section 12(1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192, “A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun”.

7. The periodical payment to the daughter in question is an order made by virtue of section 5(2).

8. Sub-section 2 of the same section states that “The court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment of the making of payment by instalments) as that court thinks proper, or may remit the payment of such arrears or of any part thereof.”

9. Further, section 4(4) of the Limitation Ordinance, Cap. 347 provides that “An action shall not be brought upon any judgment after the expiration of 12 years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of 6 years from the date on which the interest became due”.

10. Hence, with the combined effect of the above Section 4(4) of the Limitation Ordinance, Cap. 347 and Section 12 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, the Respondent is now seeking leave to enforce payment in arrears for 11 years, i.e., from 1st June, 2000 to 1st May, 2011 in the total sum of $330,000 ($2,500 x 12 months x 11 years). She is also seeking interest and surcharge. I am told that the interest runs up to $79,000.

The Legal Principles

11. The legal principles on how the court should exercise its discretion as to whether to grant leave or not have been clearly enunciated by Hon Hartmann J. (as he then was) in K v. K [2005] 1 HKC 303. I only need to quote the relevant paragraphs as follows,

“9. S.12 gives statutory form to a long‑standing practice, one inherited from the ecclesiastical courts, that, as a general rule, arrears of maintenance are not to be enforced (by whatever means) if they have remained outstanding for more than 12 months : see, for example, Bernstein v. O’Neill [1989] 2 FLR 1 per Ewbank J.

10. As to the reason for the practice, in Russell v. Russell [1986] 1 FLR 465, Sir John Donaldson, Master of the Rolls, observed (at 473B) that :

“The philosophy underlying the rule must … have been that if the complainant waited a year to seek enforcement of the order, she did not need the money, or at least had managed well enough without it, and the husband might reasonably regard the liability as something which he could forget about.”

11. An applicant must therefore take reasonably timeous steps; that is, within a year, to assert his or her right to maintenance unless there is good reason otherwise. An applicant cannot simply let the arrears accumulate, making do without them, until, with more than a year elapsed, perhaps an oppressively large capital debt has arisen. Maintenance after all is invariably required for current needs and is an obligation which must be viewed within its social context.

12. Accordingly, in giving effect to s.12, our courts must proceed on the general principle that ‘stale arrears’, as Sir John Donaldson described them, are not to be enforced unless good reason is demonstrated or special circumstances are shown.

13. What will constitute a good reason or give rise to special circumstances will, of course, depend on the facts of each case. No abstract rule can encompass all possibilities.

14. However, of relevance to the present case, there is authority that doing nothing for more than 12 months because the person liable to make payment is an irregular or reluctant payer will not constitute special circumstances : see Dickens v. Pattison [1985] FLR 610.”

The Respondent’s Evidence

12. Both the Petitioner and the Respondent give evidence in court.

13. The Respondent says that as soon as the Petitioner defaulted in May 1998 she repeatedly demanded payment but the Petitioner either refused or failed to pay. She even contacted the Petitioner’s mother for assistance but all...

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