Margarate Alice Macinnes v John Ronald Macinnes And Another

Judgment Date26 January 1977
Judgement NumberFCMC892/1976
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)


1976, No. 892.





HYOU NAM NORMAN (otherwise known as HYOU NAM YUM) 2nd Respondent


Coram: Mr. Registrar Cameron in chambers

Date of Judgment: 26 January, 1977




Applications under Rule 37 of the Matrimonial Causes Rules and Order 23 of the Rules of the Supreme Court 1967

1. On 5th November 1976 a Petition for Divorce was filed in Victoria District Court on behalf of the Respondent by her Solicitors Messrs. Hampton Winter & Glynn together with the relevant papers. Notices of Proceedings were filed on 11th November 1976. A notice of intention to proceed with application for ancillary relief made in Petition was filed on 20th November 1976. Acknowledgments of Service were filed on 22nd November 1976. The 1st Respondent in his acknowledgment stated that he did not intend to defend the case and in addition stated that he did not wish to be heard on the claim in the Petition for costs. He did however wish to be heard on the following items-

1) custody of the children - there being 2 children of the marriage.
2) periodical payments
3) maintenance pending suit
4) secured periodical payments
5) a lump sum
6) a settlement or transfer of property
7) variation of settlement.

2. The 1st Respondent also stated that he wished to make application on his own account for:-

1) access to the children and
2) custody of the children.

3. On 3rd December 1976 Messrs. Hampton Winter & Glynn on behalf of the Petitioner filed a Summons for Security of Costs under Order 23 of the Rules of the Supreme Court 1967 and Rule 37 of the Matrimonial Causes Rules Cap. 179. In this summons the Petitioner made application that the 1st Respondent give security for the Petitioner's costs in this action to the satisfaction of the Court on the grounds that these proceedings involve large amounts of money and concern matters of such importance and complexity that the legal costs are expected to be substantial. It would appear that the Petitioner's Solicitors realised shortly after filing this Summons that they should first have sought leave to apply and on 6th December 1976 a further summons under Rule 37 of Matrimonial Causes Rules Cap. 179 was filed in which the Petitioner made application for leave to apply for security for her costs at an earlier stage of the cause. Both Summonses called on Wednesday, 8th December and both were adjourned for argument.

4. On 12th January, 1977 both Summonses came before me for hearing. Mr. Rodway instructed by Messrs. Hampton Winter & Glynn appeared for the Petitioner. Miss Bibi Chu of Messrs. Helen A. Lo & Co. appeared for the Respondents.

5. In support of the 2nd Summons filed on 6th December applying for leave to apply for security of costs at an earlier stage of the cause an affidavit by Valerie Ann Penlington, Legal Assistant, employed by Messrs. Hampton Winter & Glynn was filed. In this affidavit Mrs. Penlington stated inter alia

1) that she had been advised by the Petitioner that the Respondent had expressed his willingness to pay her legal costs and that on 2nd December, 1975 an amount of $500 was paid;
2) that in response to a written request to the Respondent made on 25th March, 1976 for inter alia a sum by way of deposit for costs she had received a letter from his solicitors of 2nd April, 1976 stating he was not prepared to pay any further costs for the Petitioner;
3) subsequently requests for a contribution towards the Petitioner's costs were made on 13th August, 24th August, 31st August and 19th November, all of which were refused save that on 5th November he paid a sum of $1,200;
4) that she believed that 2 solicitor and olient bills of costs numbered and dated LB/552 of 9th June 1976 and LB/609 of 24th September 1976 for the sums of $3,445.00 and $935.00 respectively were handed by the Petitioner to the Respondent;
5) the Respondent had by open letter dated 14th September, 1976 disclosed his income to be in excess of US$45,000 per annum and his capital assets to be worth US$249,000, most of which assets were situated out with the Colony;
6) that the income and assets of the Respondent constitute the matrimonial property of the parties to a portion of which the Petitioner will be entitled whether by agreement or by order of the Court upon the dissolution of the marriage;
7) that she believed that in view of the large amounts of money involved and the importance and complexity of the proceedings the legal costs would be substantial.

6. The letter and bills referred to in the affidavit were not exhibited.

7. On 24th December, 1976 the 1st Respondent filed an Affidavit of Means together with exhibits referred to in his affidavit. In this the 1st Respondent sets out very fully what he alleges is his financial position.

8. On 11th January, 1977 the Petitioner filed an affidavit. In this affidavit the Petitioner states inter alia:-

1) that she has no other income other than the sum of US$600 per month paid to her by the 1st Respondent;
2) that she has only a Savings Account with the F.C.N.B. (no balance given) and no other account in any other bank;
3) that she owned jewellery to value of

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