IN THE COURT OF APPEAL
1995, Nos. 195 and 216
|MEI YU LAU
|SHIU KI LAU
Coram: Hon. Godfrey, Liu and Ching, JJ.A.
Date of hearing : 18 January 1996
Date of judgment : 18 January 1996
Date of handing down reasons of judgment : 7 February 1996
J U D G M E N T
1. On 18th January, 1996, we dismissed these two appeals with costs and said that our reasons would follow. These are my reasons, with which I understand Godfrey, J.A. agrees, for doing so, and this judgment may be read as our joint judgment.
2. The Appellant was the husband of the Respondent. In November, 1994, in the United States of America she obtained a dissolution of the marriage and a money judgment against him for just over US$4,000,000. It does not appear to be the subject of any appeal. In February, 1995, she instituted proceedings against him and three others in Hong Kong on the basis of that judgment. He was the 1st Defendant. The 2nd Defendant was Intertex Trading Company Limited which it was alleged was beneficially owned by him. The 3rd and 4th Defendants were his mother and father respectively.
3. On 8th February, 1995, the Respondent obtained ex parte a Mareva injunction against the Appellant and the 2nd and 4th Defendants. Broadly, it restrained them from dealing with his assets or assets alleged to be his in Hong Kong except insofar as they exceeded the amount claimed. Paragraph 9 allowed the 2nd Defendant to transfer assets or to make payments in the ordinary course of business provided that if any such transfer or payment exceeded HK$300,000 it was to inform the Respondent's solicitors of the nature of the asset transferred or the amount of the payment together with the source and destination of the transfer or payment. Paragraph 7 of the Order allowed the Appellant ordinary and usual living expenses of HK$30,000 per month or such further sums as may be agreed in writing. Notwithstanding that no order of any sort was made against the 3rd Defendant, paragraph 8 provided that
"Nothing in this Order shall prevent the Defendants from each expending a sum of HK$100,000 on legal advice and representation or such further sums as may be agreed by the parties in writing."
Paragraph 11 gave liberty to the Defendants to apply to discharge or vary upon 48 hours' notice.
4. On 1st March, 1995, the Respondent issued a summons for summary judgment against the Appellant under Order 14. By way of correspondence it was agreed that the Respondent should be allowed a total sum of HK$200,000 under paragraph 8. Summary judgment was refused by the Master and the Respondent lodged an appeal to a Judge in chambers on 7th July, 1995. This led to the Appellant seeking the use of further funds. The Respondent's reaction was that the amounts were excessive and asked for disclosure of assets which the Appellant refused to give. No agreement having been reached, the Appellant issued a summons on 19th August, 1995, seeking a variation of paragraph 8 so far as it applied to him to the extent that he could use
"..... a reasonable sum on legal advice and representation provided that the 1st Defendant's solicitors notify the Plaintiff's solicitors of all such sums transferred to them on account of such legal costs and disbursements within 24 hours of such transfer."
On 1st September, 1995, the Respondent issued a summons for disclosure of assets. The two summons came on before Yeung, J., on 4th September, 1995, when the Respondent's summons was adjourned sine die. It has not been restored. Yeung, J., ordered a variation of paragraph 8 only to the extent of permitting the Appellant to use HK$150,000 on legal advice and representation or such other sums as the parties may agree. This Order is the subject of the first of the appeals before us.
5. On 7th September, 1995, the Appellant issued a further summons for variation of paragraph 8 in exactly the same terms as his previous summons of 19th August, 1995. This and the Respondent's appeal against the refusal of summary judgment came before Findlay, J., on 7th September, 1995. Findlay, J., dismissed the Appellant's further summons with costs on 11th September, 1995. There is no appeal against that. Findlay, J., also upheld the Respondent's appeal and entered summary judgment in her favour.
6. On 15th September, 1995, the Appellant lodged his first appeal mentioned above. This notwithstanding that the application for a variation had been for the purposes of resisting the Respondent's appeal against refusal of summary judgment and that that appeal had already been concluded. This also notwithstanding the fact that no appeal was lodged against the refusal by Findlay, J., to vary paragraph 8. The Appellant sought permission to use further funds for the purposes of appealing against the summary judgment and launched that appeal on 22nd September, 1995. It is still pending. No agreement having been reached on any variation, the Appellant issued a third summons seeking yet again the variation that he had sought in his two previous summonses and adding an alternative that he should not be prevented from spending "a further sum of HK$525,750 on legal advice and representation or such sums as the parties may agree." This application came before Yeung, J., on 18th October, 1995, and was refused. The Judge gave brief reasons for his refusal. That refusal is the subject of the second of the appeals before us.
7. The first three grounds in the first appeal attack the quantification of the variation. It is said that the Judge was wrong in determining the amount the Appellant should be allowed to spend, that he had no jurisdiction to do so and that it had the effect of being a pre-emptive solicitor and own client taxation obtained at the insistence of the Respondent. These points are misconceived. The granting of a Mareva...