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Ysp v Hff & Another

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date15 October 2003
Year2003
Judgement NumberCACV235/2003
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV235/2003 YSP v. HFF & ANOTHER

CACV000235/2003

CACV 235/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 235 OF 2003

(ON APPEAL FROM FCMC 12363 OF 2002)

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

BETWEEN
YSP Petitioner
AND
HFF Respondent
HA Co-Respondent

Coram: Hon. Cheung J.A. and Hon Suffiad J. in Court

Date of Hearing : 15 October 2003

Date of Judgment : 15 October 2003

________________________

J U D G M E N T

________________________

Hon. Cheung J.A. (giving the judgment of the Court):

The facts

1. The petitioner wife ("wife") presented a petition for divorce on 25 October 2002. The wife alleged adultery and unreasonable behaviour against the respondent husband ("husband"). The children of the family are adults.

2. The petition was received by the husband on 11 November 2002. In the acknowledgement of service dated 18 November 2002, the husband stated that he intended to defend the case. However, no answer was filed by him.

3. The time given for filing an answer is twenty-nine days after the receipt of the petition. The parties agreed that the answer should have been filed on 10 December 2002.

4. On 27 February 2003, the wife's solicitor applied to the District Court registry for direction for trial and requested the cause be entered in the Special Procedure List.

5. By a certificate dated 15 May 2003, the Registrar of the District Court certified that he was satisfied that the wife was entitled to a decree nisi for divorce. On 31 May 2003 the Registrar further issued a notice of the date of pronouncement of decree, stating that the date for the pronouncement would be 18 July 2003.

6. On 2 June 2003, the husband issued a summons asking for leave to file the answer.

7. On 8 July 2003, Deputy District Court Judge D'Almada Remedios rejected the application. The husband now appeals against the judgment. In view of this appeal, the pronouncement of the decree nisi is stayed pending the determination of this appeal.

The husband's explanation

8. The husband's explanation for the delay in filing the answer is this. When he received the divorce documents at the end of last year, he was feeling surprised and unhappy. He did not know how to deal with the divorce. Furthermore he was facing financial difficulties in respect of the loans repayable to the banks. He spent most of his time in dealing with the financial crisis.

9. He had tried to discuss with the wife about discontinuing the divorce but she did not give him a formal reply.

10. He also asked his daughter to persuade the wife to discontinue the divorce.

11. It was only in late April 2003 that he knew his wife would proceed with the divorce. It took time for him to retrieve the financial documents and explain to his lawyers about his situation, especially on his reply to the allegations made by the wife against him.

12. He denied that he had committed adultery or behaved unreasonably.

The principles

13. The following are the relevant principles gleaned from the authorities on how the court should deal with the delay and extension of time by a party in filing an answer to the petition.

1. The starting point is that under the special procedure the registrar has certified that the petitioner has proved the contents of the petition and is entitled to a decree : Day v. Day [1979] 2 WLR 681.
2. This being the position an application for extension of time to file the answer should be dealt with by analogy to the principle governing the former procedure of an application for re-hearing after decree nisi : Day v. Day.
3. This principle is that the application should have been refused unless there were "substantial grounds for the belief" that the decree would have been obtained "contrary to the justice of the case" : Owen v. Owen [1964] P. 277.
4. Each case has to be dealt with on its own facts : Rogers v. Rogers [1974] 1 WLR 709.
5. Broadly speaking, the cases may be divided into two types. This division is not exhaustive :
（1） Where the applicant was not served at all and the proceedings took place without his knowledge. He would get a re-hearing almost immediately.
（2） The applicant knew of the proceedings but chose not to defend. He then changed his mind again and asked for time. He had to satisfy the court that it was more probable that the decree was obtained contrary to the justice of the case.

See Stevens v. Stevens [1965] P. 147 and Nam v. Nam [1985] 2 HKC 144.

6. The following are examples of some of the factors the court may consider in the exercise of its discretion in favour of granting an extension of time :
（1） The delay in filing the answer is not due to the fault of the applicant, but, for example, due to the delay in processing legal aid application or the fault of his legal advisers : Nash v. Nash [1967] 1 All ER 535.
（2） The delay is of relatively short duration such as a few days : Lawlor v. Lawlor [1995] 1 FLR 269.
（3） Allegation of
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