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Wtm v Lnca

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date30 March 2012
Year2012
Judgement NumberFCMC14571/2010
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC14571/2010 WTM v. LNCA

FCMC 14571/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 14571 OF 2010

__________

BETWEEN

WTM Petitioner
and
LNCA Respondent

__________

Coram: H.H. Judge K.W. Wong in Chambers (not open to public)
Date of Hearing: 6th March 2012
Date of Decision: 30th March 2012

__________

DECISION

__________

1. This is a hearing concerning the procedure of how a consent order finally disposing of the parties’ ancillary relief claims upon divorce can be set aside. It has been a subject of a divergent opinion.

Brief Marital and Procedural Background

2. The Petitioner Husband and the Respondent Wife married on 16th August 2005. The only child of the family was born in November the same year and is now aged 6.

3. The parties came from grassroots. Through the Husband’s hard work and the Wife’s devotion as a homemaker, their effort got paid off eventually. The Husband’s logistic business grows and he is the owner of several companies holding his logistic business and some landed properties.

4. However, by 2009 the marriage had broken down. They contemplated a divorce and eventually had come to terms prior to issue of a formal petition. Lawyers were involved at certain stage of the agreement. On 5th November 2010, the Husband petitioned through a firm of solicitors for a divorce based on the facts of one-year separation with the Wife’s consent. She was unrepresented throughout the divorce proceedings.

5. It was pleaded in the Petition that certain agreement or arrangement has been made or was proposed to be made between the parties for the support of the Wife and the child of the family. In so far as they related to financial matters they are[1]:

i) the Husband do pay the Wife a monthly sum of $20,000 as her maintenance and $10,000 as the child’s maintenance; and

ii) the Husband shall purchase a landed property valued not less than $3 million in the Wife’s name and if the Husband needs to raise a loan from the bank or financial institution to assist the purchase, all mortgage instalments shall be repaid by the Husband until full repayment and the legal costs, disbursements and agency fee shall be borne by the Husband solely.

6. Custody of the child is never an issue between them. In the prayer of the same Petition, the Husband asks for financial arrangement basically same as above. In addition, he requested the Wife to vacate the matrimonial home at Baycrest within 2 months of the purchase of the aforesaid property.

7. On 13th January 2011, the Husband’s solicitors filed a consent summons signed by both parties dated 16th December 2010. The summons basically comprised two parts, namely, (i) agreements and undertakings of the parties to each other and to the Court; and (ii) orders of this Court. It provided, inter alia, that custody of the child of the family be granted to the Wife and the Husband has reasonable access. In respect of financial arrangement, apart from embodying the agreed terms as stated in the petition, the following two additional terms in the form of agreements and undertakings to each other and to the Court were also included:

i) the Husband shall pay the Wife costs of decoration of the property to be purchased and furniture up to a sum of $0.15 million within one month from completion of purchase of that property; and

ii) the Husband shall purchase a life insurance policy, valid for 13 years from the date of Decree Absolute, for the sum of HK$4 million in the Wife’s name with the Wife being the sole beneficiary thereof.

8. When the consent summons was filed, there were annexed to it two letters signed by the Wife and addressed to the solicitors for the Husband both dated 16th December 2010. The two letters set out the terms of agreement in respectively Chinese and English, the contents of which were basically the same as the consent summons. It is stated in these letters, inter alia, that the Wife has been advised to seek independent legal advice, and she acknowledged she understood the contents as well as the legal consequence of the consent summons. It is fair to say that both letters are of the same meaning, and one is the translation of the other.

9. A Decree Nisi of divorce was granted in open court on 10th March 2011. Relying on the parties’ compromise as evidence by the documents filed with Court, no inquires, as in many other cases of consent filed with the Family Court Registry, were directed. These terms set were made orders of the Court in chambers with some amendments (“the Consent Order”). These amendments were made by this Court out of its own motion to deal with the following:

i) typographical errors;

ii) to insert the words “care and control” after custody for clarity purpose;

iii) to include a removal restriction to the custody order, so that unless there is leave of the Court, or filing of written undertaking by a parent and written consent of the other parent, the child cannot be removed out of the jurisdiction. This is a usual restriction added to custody order unless there are good reasons to the otherwise. It is absent from the consent summons;

iv) to insert the maximum duration of periodical payment payable to the Wife to reflect the statutory requirements under Section 9 of the Matrimonial Proceedings and Property Ordnance (“MPPO”), Cap 192, and to comply with Section 25(1) of the same Ordinance. The combined effects of which are:

(a) the maintenance payable prior to the granting of Decree Absolute should be termed maintenance pending suit (“MPS’);

(b) the maximum terms for the Wife’s maintenance should be inserted such that it is payable during joint lives of the parties or until the Wife’s remarriage, whichever is the shorter; and

v) to insert the duration of the periodical payment payable to the child of the family to give effect to Section 10 of the MPPO. Accordingly, the maintenance payable to the child will cease when the child attains the age of 18 or finishes full-time education, whichever is the later.

10. It was stated in the order, inter alia, that the terms referred to in the order are accepted in full and final settlement of the parties’ claims against each other for periodical payments, lump sum and property transfer under all relevant enactments including MPPO. A declaration that this Court is satisfied with the arrangement of the child of the family under Section 18 of MPPO was also made when the consent order was also granted.

11. This order was perfected and filed with Court by the solicitors acting for the Husband on 11th May 2011. The Decree Nisi was made Absolute on 18th May 2011 as certified by the Registrar’s certificate dated 19th May 2011.

12. It is this Consent Order that is the subject matter of the Wife’s application.

The Wife’s Setting Aside Summons Issued Herein

13. On 8th September, 2011, the Wife issued a summons (“settingaside summons”) through her solicitors asking for:

i) the two paragraphs of the Consent Order relating to periodical payments payable to herself and the child be set aside; and

ii) leave be granted to the Wife to proceed with her claim on ancillary relief against the Husband for herself and the child of the family.

14. In support of the application the Wife filed a lengthy affirmation affirmed on 5th September 2011. Her grounds of the setting aside can be broadly summarized as follows:

i) misrepresentation and/or non-disclosure on the part of the Husband as to his assets and business profitability. He has undisclosed securities trading account holding stocks that are worth about $10 million as well as landed properties and companies;

ii) she was depressed when she was advised to find her own lawyers;

iii) the documents were all drafted in English despite her request that they should be in Chinese, and her English is limited;

iv) she subsequently signed a number of documents but on those occasions she was not advised to seek independent legal advice. Neither had she been explained the contents of the documents;

v) there has been breached of the Consent Order;

vi) the Consent Order approved was different from the consent summons she had signed.

15. I have to say that one find it a bit confused as to the exact basis for the Wife’s application. In Miss Chan’s skeleton[2] submitted on behalf of the Wife, it appears that her counsel based her application on misrepresentation. However, after ready her submission and the Wife’s evidence, it is obvious that the Wife is also relying on material non-disclosure of financial information by the Husband. However, in her submission she has repeatedly referred to “fraud”[3]. It remains for her to clarify whether “fraud”, “misrepresentation” and “failure to make full and frank disclosure” are loosely used by her and that they in fact refer to the same matters i.e. misrepresentation of the Husband’s financial position, or she in facts has other particulars of fraud in mind.

16. Prior to the call-over hearing on 1st November 2011, the Husband as well as his former solicitor filed affirmations to oppose the application. The Wife, in spite of the expressed order of this Court made at the said call-over that there be no affirmation without leave, put in two further affirmations in response. In her own affirmation, she particularly accuses the former solicitor acting for the Husband, one Mr. Lau, has misled her.

Whether this Court Has Jurisdiction to Re-hear the Matter

17. Though the setting aside appears to restrict to the two orders relating to periodical payments, it is apparent from the Wife’s evidence and her counsel’s submission that she is seeking to re-open her financial claims against her husband. She is not asking for variation of periodical payments based on change of...

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