Tym And Others v Wsp, The Intended Executrix Of The Estate Of Lm, Deceased And Another

CourtFamily Court (Hong Kong)
Judgment Date19 Oct 2016
Judgement NumberFCMP309/2014
FCMP309/2014 TYM AND OTHERS v. WSP, THE INTENDED EXECUTRIX OF THE ESTATE OF LM, DECEASED AND ANOTHER

FCMP 309 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 309 OF 2014

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IN THE MATTER OF the estate of LM deceased
and
IN THE MATTER OF sections 4 and 12 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the Ordinance”)

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BETWEEN
TYM 1st Applicant
LKY 2nd Applicant
LKM, an infant, by her mother and next friend, TYM 3rd Applicant
and
WSP, the Intended Executrix of the estate of LM, deceased 1st Respondent
KO Trading Limited 2nd Respondent

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Coram: Deputy District Judge K K PANG in Chambers (Not Open to Public)
Date of Hearing: 4 October 2016
Date of Judgment: 19 October 2016

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J U D G M E N T
(Application for a Hadkinson Order)

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Background

1. TYM, the 1st Applicant, and LM, the Deceased, were married in November 1994 in Hong Kong. They had a son born in August 1996 and a daughter born in March 1998.

2. On 29 August 2013, the 1st Applicant as the Petitioner therein commenced proceedings for divorce from the Deceased and claimed against him for ancillary relief for herself and the two children of the family under FCMC 12333 of 2013 (“the Divorce Proceedings”). In the Divorce Proceedings, an order dated 11 November 2013 (“the MPS Order”) was made by Deputy District Judge K.K. Pang, by which the Deceased was ordered to pay her a sum of HK$40,000 (“the MPS order”) per month as maintenance pending suit for the two children of the family and herself. After the MPS Order was made the Deceased was punctual with the payments until October 2014 when he passed away.

3. On 25 November 2014, the 1st, 2nd and 3rd Applicants commenced the present proceedings for, among other things, interim maintenance. The 1st Respondent initially opposed to the application for interim maintenance. By an order dated 31 December 2014, Deputy District Judge K.K. Pang ordered the 1st Respondent to pay monthly periodical payments of HK$40,000 to the Applicants as a stopgap measure pending determination of the application. The hearing of the interim maintenance application was adjourned for argument. By the letter dated 27 January 2015, the 1st Respondent through her solicitors stated that she was prepared to consent to the Applicants to receive HK$40,000 per month as an interim measure. On 6 March 2015 an order was made by consent that the 1st Respondent was ordered to pay monthly periodical payments in the sum of HK$40,000 to the Applicants until further order of the court, while the hearing for argument on the application for interim maintenance was adjourned sine die with liberty to restore.

4. From April 2015, the 1st Respondent was late in payments. Since July 2015, the 1st Respondent has only paid HK$20,000 per month. From July 2015 to September 2016, the 1st Respondent was in arrears of HK$300,000, i.e. HK$20,000 per month x 15 months.

5. On 20 April 2016 the Applicants took out the present application for an order that unless the 1st Respondent shall comply with the order dated 6 March 2015 and pay up the arrears of the monthly periodical payments within 14 days thereof, the 1st Respondent shall not be heard in the present proceedings commenced under the section 4 of the Ordinance until she fully complied with the said order, and costs of the application on indemnity basis. On 27 September 2016, the Applicants took out the 2nd summons to bring the amount of the arrears up to September 2016. This is the substantive hearing of the summons dated 20 April 2016 and the summons dated 27 September 2016.

Applicable principles to the making of Hadkinson Order

6. The jurisprudence for the making of Hadkinson orders is founded under the authority of Hadkinson v Hadkinson [1952] P 285. In CWG v MH [2014] 4 HKLRD 141, the Court of Appeal held that:

“The questions a court should ask itself in Hadkinson applications have been conveniently set out in MA v MI [2004] 2 FLR 932, 946, [59].”

7. Applied to the present application, they are:

(a) Is the 1st Respondent in contempt?

(b) Is there an impediment to the course of justice?

(c) Is there any other effective means of securing compliance with the court’s orders?

(d) Should the court exercise its discretion to impose conditions having regard to the question?

(e) Is the contempt wilful, i.e. is it contumacious and continuing?

(f) If so, what conditions would be proportionate?

8. The standard of proof is the civil standard: Mubarak v Mubarik (No 2) [2007] 1 WLR 271, 286, [72].

Discussion

9. The 1st Respondent’s first stance is that the present application for a Hadkinson order is legally misconceived and is bound to be dismissed at the threshold stage. The Applicants sought an order that the 1st Respondent, who is the defendant in these proceedings, should not be heard in the proceedings. The 1st Respondent argued that, as a matter of principle and as a matter of the 1st Respondent’s constitutionally guaranteed right under Article 35 of the Basic Law and Article 10 of the Hong Kong Bill of Rights, the court would not make a Hadkinson order...

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