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Wzr v Lwc

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date06 November 2019
Neutral Citation[2019] HKFC 281
Year2019
Judgement NumberFCMP208/2018
Subject MatterMiscellaneous Proceedings
CourtFamily Court (Hong Kong)
FCMP208/2018 WZR v. LWC

FCMP 208/2018

[2019] HKFC 281

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 208 OF 2018

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

BETWEEN
WZR Applicant
and
LWC Respondent

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

Before : Deputy District Judge D. To in Chambers
Date of Hearing : 2 May 2019
Date of Decision : 6 November 2019

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Decision
(set aside ex-parte leave to issue Part IIA proceedings)

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

Introduction

1. This is the Respondent/Husband’s (“R”) application by Summons dated 24 April 2019 to set aside the ex-parte leave granted to the Applicant/Wife (“A”) on 27 September 2018 to apply for financial relief against R under Part IIA of the Matrimonial Proceedings and

Property Ordinance, Cap 192 (“the Setting-aside Summons”).

2. It is clear from the Reasons for Decision dated 3 October 2018 that the main reason for granting the said ex-parte leave is that A was unable to seek redress regarding family assets in Hong Kong because the PRC court did not deal with the properties in Hong Kong for lack of jurisdiction.

History of Proceedings

3. Pursuant to the said ex-parte leave, A commenced her Part IIA proceedings by Originating Summons dated 4 October 2018. At the directions hearing on 12 December 2018, R submitted that family assets in Hong Kong have in fact been dealt with by the PRC court and should not be re-litigated. R asked the Court to dismiss the Originating Summons.

4. In light of the said issue in dispute, the Court withheld giving directions for financial disclosure and filing of Form E. As proposed by the parties, directions were given for the filing of evidence and fixing this one-day hearing for substantive argument of whether the family assets in Hong Kong have already been dealt with by the PRC court.

5. Subsequent to the filing of affirmations as directed, R took out the Setting-aside Summons on the following grounds :-

A’s ex-parte leave application was riddled with material non-disclosure and misrepresentations. A misled the Court that the PRC court did not deal with the properties in Hong Kong for lack of jurisdiction. A abused the process of the Court by trying to re-litigate matters which had been dealt with, and/or by adopting a stance contrary to her previous admissions. The ex-parte leave ought to be set aside; no re-grant ought to be made if applied for; the Originating Summons ought to be dismissed.

6. The said issue in dispute is now subsumed under the Setting-aside Summons. At this hearing, despite her complaint and allegation of procedural unfairness and delay, A conceded not to file further affirmation and agreed to have the Setting-aside Summons argued on the available evidence.

7. At the beginning of this hearing, the Court has reminded R that unless he could deliver a knock-out blow, the Setting-aside Summons ought to be adjourned and heard together with the financial relief claim.

see : C vH (Foreign Decree; Part IIA) [2012] HKFLR 199 at 210 §38

“Although MCR does not expressly make any rules for a subsequent application to set aside the leave granted, the court no doubt has jurisdiction to do so as a fundamental rule of procedure. The experience in England suggests that too much time and costs had been wasted on the setting aside applications. Now after Agbaje v Agbaje ([2010] 1 AC 628), once leave is granted, absent a knock-out blow from the respondent, the court will use its case management powers to adjourn the application to be heard with the substantive application: per Lord Collins said at para 33. In my respectful view, this practice makes perfect sense and fully accords with the spirit of our CJR. It should apply in Hong Kong equally”.

8. However, R is comforted that there is merits for a knock-out blow. He would make a genuine and serious attempt to knock A out by showing material non-disclosure and/or misrepresentations which have misled the Court in granting the ex-parte leave.

The Law on Part IIA and Setting Aside Ex-Parte Leave

9. “Part IIA aims at remitting the presence of a failure in a foreign jurisdiction to afford appropriate financial relief”

see : C v H (supra) at 208H-I §35

10. “Rule 103A(1) of the Matrimonial Causes Rules (MCR) lays down the procedure for the leave application. It must be made ex parte in the prescribed form. Further, the application must be: ‘(b) supported by an affidavit by the applicant stating the facts relied on in support of the application with particular reference to the matters set out in section 29AF of [MPPO].’”

See : C v H(supra) at 205G-I §24

11. The law on the duty to make a full and frank disclosure in an ex- parte application is trite. HKCP 2019 §29/1/51 –

“On any ex-parte application, the applicant must proceed “with the highest good faith”.”.

12.AA v BB [2014] EWHC 4210 (Fam) esp. at §73-§83 :-

“There would be a compelling reason, if the materials previously before the court were so inaccurate or incomplete that the judge had granted permission when otherwise they would not have done ...... An applicant for permission to appeal made without notice is under a duty to make full and frank disclosure to the court, and where that duty is not discharged the applicant runs the risk that any permission granted may be set aside on the respondent’s application ......” [at §79];

“it is clear from the authorities, and the White Book, that there is a duty on an applicant for leave under Part III to make full and frank disclosure. It is an important obligation and it is clear that, when it has not been discharged, the court may set aside the grant of leave. This is in part to protect the court’s process from abuse” [at §83].

13. In Obsession Hair and Day Spa Ltd v Hi-Lite Electrical Ltd [2011] EWCA Civ 1148 at §28, it was held that a failure to disclose material information by the applicant amounts to an abuse of the due process of the court, and the court, while observing a sense of proportion, may deprive him of the fruits of the advantage wrongfully obtained.

14. “The disclosure of material facts is not to be confused with discovery and should be made in the affidavit, not in the exhibits which should only contain key documents”; further, “It is of course the duty of legal advisers and counsel to call the judge’s attention to everything that he must see if there is a mass of material” [HKCP 2019 §29/1/51]. Non-disclosure is not cured by pointing to passages hidden within exhibits. To comply with the high duty to provide full and frank disclosure, the party seeking leave was duty bound to point out to the Court all material matters.

Relevant Background Facts

15. The parties married in 1993 in Guangzhou.

16. In contemplation for a divorce, the parties by agreement dated 15 October 2007 reached an agreement on distribution of their family assets covering both PRC properties and their then 5 Hong Kong properties, namely

Flat H on 3rd Floor of a residential building on Hoi Ting Road, Kowloon (“3H Unit”);

Flat B on 10th Floor of a residential building on Nathan Road, Kowloon (“10B Unit”);

Flat E on 10th Floor of a residential building on Nathan Road, Kowloon (“10E Unit”);

Flat B on 27th Floor of a residential building on Hoi Ting Road, Kowloon (“27B Unit”); and

Office B on 13th Floor of a commercial building on Nathan Road, Kowloon (“13B Unit”).

(“the 2007 Agreement”)

17. Pursuant to the 2007 Agreement, A would beneficially own 3 properties namely 3H Unit, 10B Unit and 10E Unit while R was to have the other 2 properties namely 27B Unit and 13B Unit.

18. The parties proceeded with their divorce in the PRC in October 2007, but reinstated their marriage in February 2008. In November 2012, R filed for divorce in the PRC but it was withdrawn in December 2012. In 2013, A filed for divorce in the PRC and eventually a divorce was decreed.

19. Despite the recurrence of divorce proceedings as aforesaid, the parties still regarded the 2007 Agreement as valid and binding. As requested by A, the PRC court has affirmed the 2007 Agreement.

20. The issue in serious dispute is A’s allegation of R’s breach of an oral agreement made subsequently in 2011 (“the alleged 2011 Oral Agreement”).

21. A’s assertions are as follows:

(a) In around April 2011, the parties orally agreed to sell A’s 3 properties (3H Unit, 10B Unit and 10E Unit) and R’s 27B Unit, and to apply sale proceeds of the 4 properties to purchase a bigger apartment in Hong Kong at 九龍大角咀海泓道帝峰皇殿 (“帝峰皇殿 Unit”) as their matrimonial home.

(b) She entered into the alleged 2011 Oral Agreement in reliance of R’s representation that the total value of A’s 3 properties was equivalent to that of R’s 27B Unit. Hence, using sale proceeds of the 4 properties to purchase the 帝峰皇殿 Unit would mean each party was contributing to half of the purchase.

(c) he sale and purchase of the A’s 3 properties was handled by R; sale proceeds thereof were deposited into R’s bank account with the Bank of China in Hong Kong. With the said sale proceeds and a mortgage loan, 帝峰皇殿 Unit was purchased in the joint names of the parties on 15 April 2011.

When 帝峰皇殿 Unit was subsequently sold in March 2014, R wrongfully kept half of the net sale proceeds to himself although he has not contributed to the purchase.

(e) R has applied family funds to purchase three other properties in Hong Kong under his sole name, namely a residential property at 九龍尖沙咀君臨天下in September 2014 (“君臨天下Unit”) and 2 properties at九龍將軍澳峻瀅in July 2012 (“the two 峻瀅Units”).

22. R disputed the existence and breach of the alleged 2011 Oral Agreement. He said the parties by the 2007 Agreement have long reached agreement on the distribution of properties in Hong Kong. He asserted that

(a) 帝峰皇殿 Unit as well as a commercial premises at 九龍尖沙咀廣東道力寶太陽廣場 (“力寶太陽廣場Unit”)...

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