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Liu Ming Sung v Liu Lee Yuk Ching And Another

Judgment Cited in Precedent Map Related
Vincent
Judgment Date26 August 1983
Year1983
Judgement NumberFCMC2777/1981
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC002777/1981 LIU MING SUNG v. LIU LEE YUK CHING AND ANOTHER

FCMC002777/1981

VDJ 2777/81

Applications in Divorce Jurisdiction for (1) stay of Proceedings (2) discharged of wife's undertakings.

Held: Order staying all proceedings excepting custody and access applications should issue on basis:

(a) Petitioner has not conformed to an order of the Full Bench of the High Court to properly formulate his proprietary claim in the Victoria District Court

(b) Petitioner has not paid his wife's solicitor and client taxed costs as ordered by the Full Bench.

Conditions requested by Petitioner that stay be imposed only if Petitioner failed to pay instalments refused.

Provision made that stay may be lifted.

1. If Proprietary Claim is properly formulated and

2. Costs are paid - or suitable security is made available or the High Court or application by Petitioner permits costs to be paid by instalments.

Obiter view expressed that Victoria District Court does not have jurisdiction to entertain certain types of proprietary claim.

Respondent discharged from her undertaking because of delay in bringing litigation to an end due to Petitioner's conduct.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 2777 OF 1981

________________

BETWEEN

LIU MING SUNG

 Petitioner

and

LIU LEE YUK CHING

 Respondent

nee LEE YUK CHING

__________________

Coram: H. H. Judge Caird in Chambers

Date: 26th August, 1983.

--------------------

RULING

--------------------

THE APPLICATIONS

1. The petition in this cause was filed on the 23rd of December 1981 and I have now before me an application by the Respondent for orders as follows: -

"

 1. That all proceedings in VDC DJ Action No. 2777 of 1981 be stayed until the Petitioner has cleared his contempt and paid the Respondent's costs in pursuant to the judgment and order of the Honourable Mr. Justice Hunter and Mr. Justice Kempster of the Full Bench dated the 28th day of July, 1982 in High Court Miscellaneous Proceeding No. 814 of 1982 in the matter of these divorce proceedings.

2. That the undertaking of the Respondent in paragraph 3 in the order made by His Honour Judge Caird herein on 20th February 1982 be discharged.

3. That the costs of this application be the Respondent's costs."

2. There is also before me a summons on the part of the Petitioner for directions and setting down the cause for hearing.

3. When the Petitioner previously made an application he was faced by a similar type of application by the respondent as presented herein which was disposed of by His Honour Judge Cruden last year.

HISTORY

4. It is necessary to briefly discuss the of this matter.

5. An ex-parte summons was set before me on the 8th January, 1982, upon which I granted orders. I was clearly in error, as pointed out by the full bench of the High Court. Subsequently the Petitioner proceeded on a course of conduct which included deliberate abuse and harnessment of the Respondent, his wife, and as a result of this irresponsible and malicious behaviour found himself facing contempt proceedings in the High Court. The Decision. of the Full Bench is reported in the 1982 HKLR at P 399.

6. As a result of the contempt proceedings an undertaking was given by Counsel for the husband, to eradicate as far as possible the effect of his conduct, and having regard to this and to the apologies tendered by the husband and upon an undertaking that the necessary steps would be taken, an order for committal did not issue, but the bench held, that the justice of the case

"will be met by an order that the husband pay the wife's costs of these proceedings on solicitors and own client basis".

Included in the necessary steps is

"(iii) the proper formulation without further delay in the Victoria District Court of the husband's proprietary claim."

FORMULATION OF THE PROPRIETARY CLAIM

7. It is the contention of Mr. Patrick Woo on behalf of the wife that the husband has not in fact formulated this proprietary claim and is therefore in contempt.

8. The position is that some time after the hearing before the Full Bench the husband filed an affidavit in the District Court which according to Miss Kwan, Counsel appearing before me for the Petitioner amounted to a formulation of his claim.

9. Basically, the husband's claims in his petition are presented under Section 4 of the Matrimonial Proceedings and Property Ordinance Cap. 192 and a standard practice is that no extended claims are presented in the petition and it is after the hearing of a petition that the common practice is for a summons to issue in relation to any claims for ancillary relief.

10. The full bench has clearly held that a proprietary type of claim is

"Where one party is asserting some beneficial interest in property held in the name of the other, often on a basis of a resulting trust".

Such a claim may well be determined at the same time as any financial claim for ancillary relief in a petition that has been separately formulated and advanced.

11. There has been no separate formulation of claim and advancing this by filing same in the appropriate court.

12. A claim of course may in other contexts be formulated by letter, or by summons motion or appropriate court proceedings.

13. As I read the decision of Hunter J. the formulation of a claim referred to at page 411 is "the proper formulation ...." of such claim. Taken in conjunction with the words used at page 404 "has to be separately formulated and advanced", it is apparent in my view that a filing of an affidavit does not amount to formulating the cause of action as contemplated by and expressly stipulated by the full bench.

14. I accept that an affidavit may possibly give the wife's counsel certain advantages at a later date when it comes to cross-examination, and indeed had the affidavit attached to it an exhibit showing the proposed pleading the wife's advisers may well have been content with this.

15. Mr. Patrick Woo throughout argued strenously that the husband was in contempt of the Full Bench order. I do not believe that it is for me to either determine whether he was in fact in contempt as a matter of law, or whether I ought to take any steps to deal with the alleged failure. It is clearly a matter for the Full Bench. However, I have come to the conclusion that the husband has not complied with the order of the Full Bench, to provide ".. The proper formulation ... in the Victoria District Court of the husband's proprietary claim."

16. It is not germane to my decision and argument has not been addressed to me, but I am concerned whether the District Court has jurisdiction to accept any claim in excess of $20,000.

17. If section 4 of the Matrimonial Proceedings and Property Ordinance is to be relied on then the District Court has jurisdiction. My concern relates to the possibility, that the husband's proprietary claims in excess of $20,000. ($40,000 in the near future) derived from possible resulting trusts or claims dependant upon some other beneficial interest.

18. The granting of a decree of divorce is precedant to claims pursuant to see E4 of Cap. 1925. The Petitioner's advisers may have to consider this and possibly seek directions from the full bench.

19. I turn to another matter, the non-Payment of costs. The wife after some considerable time had her costs taxed in the sum of $438,000.

20. These remain unpaid and these were costs that the wife has incurred, after the Petitioners disreputable actions amounting to contempt of court. It is clear that she was obliged to incur such expenses.

LAW RELATING TO STAY AS SOUGHT

21. I turn to questions of law. In all cases it is quite clear that orders staying proceedings until the wife's taxed costs are paid may issue. See Joseph v. Joseph Burnhill (1) followed in Kemp-welch v. Kempwelch & Crymes (2) also Leavis v. Leavis (3).

22. As to a party disobeying an order of the court, it is clear from Hadkinson v. Hadkinson (4) that when a party is in contempt of court then such a party is disbared from being heard by the court.

23. I am aware of the decision of Lord Denning in that case where he reviewed the history of the rule "that the party in contempt will not...

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