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A A
FCMC 17190 / 2014
B B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D MATRIMONIAL CAUSES D
NUMBER 17190 OF 2014
E E
F ---------------------------- F
G BETWEEN G
H
B, L Petitioner H
and
I I
K, WS Respondent
J J
K K
------------------------
L L
M
Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to M
public)
N N
Date of Hearing: 26 March 2015
O Date of Judgment: 13 April 2015 O
P P
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Q Q
JUDGMENT
(Maintenance Pending Suit, pre nuptial agreements and litigation funding)
R R
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S S
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V V
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A Introduction A
1. This is an application by the Petitioner wife. In her summons
B B
dated the 20 March 2015 she requests that:
C 1. Upon the undertakings requested of the Respondent as C
follows:
D (a) that he will guarantee until further order the D
payment of the salary and all employment
obligations arising out of the Petitioner’s
E re-employment of her domestic helper ABA and E
take all steps necessary with the Immigration
Department to facilitate the helper resuming her
F F
position as a helper in the Petitioner’s home
forthwith without having to return to the
G Philippines; G
(b) that he will not take any steps to terminate the
H domestic helper contract for the second helper NA H
and will, when she is released from hospital,
I ensure until further order that her salary and all of I
his employer obligations towards her continue to
be met by him;
J J
(c) That he will continue to pay until further order the
K
rental on the Petitioner’s and the children’s home K
at XX, A Garden, XX Shouson Hill Road, Hong
Kong together with all utilities bills relating to the
L said property; L
(d) That he will to pay for all school fees and
M M
education related expenses for the Children;
N (d) That he will maintain until further order the N
Petitioner’s subsidiary credit cards without any
further reduction in the combined total level of
O credit currently standing at HK$220,000:- O
P 1) AE Company Corporate Card P
2) Citibank Octopus Visa Card
(xxxx-xxxx-xxxx-6266)
Q 3) Citibank Rewards Master Card Q
(xxxx-xxxx-xxxx-9618)
4) HSBC Visa Platinum Card
R R
(xxxx-xxxx-xxxx-1843);
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A (f) That he will take no steps which would interfere A
with the ability of the Petitioner’s mother EB to
B
remain in Hong Kong under her present visa; B
2. That the Respondent do pay to the Petitioner a monthly
C sum in maintenance pending suit to be determined by the C
court which will cover the reasonable living costs of the
Petitioner and the Children, inclusive of a sum to be
D D
determined for the upkeep of the Petitioner’s property at
xxx, Moscow, Russia and a monthly sum in legal fees up
E to and including the hearing of any Financial Dispute E
Resolution hearing.
F 3. Time for service of this summons be abridged. F
G 4. The Respondent do pay the costs of this application. G
H 2. Thus this is essentially an application for maintenance H
pending suit pursuant to s 3 Matrimonial Proceedings and Property
I I
Ordinance Cap 192 (MPPO) and an application for interim maintenance
J for the two children of the family pursuant to s 5 of the same ordinance. J
The wife also seeks provision for her legal costs up until the Financial
K K
Dispute Resolution hearing.
L L
3. This application differs from the norm in that it is brought in
M M
the shadow of an argument concerning a pre nuptial agreement (PNA)
N entered into by the parties on the 14 February 2007. The parties N
subsequently married in August 2007 and had two children who are now
O O
aged 5 and 3 years old respectively. The divorce petition was issued on the
P 15 December 2014 and the decree nisi was pronounced on the 2 March P
2015. On the 6 March 2015 the husband issued a summons, which has
Q Q
become known in England and Wales as a Crossley application, in which
R R
he asks that the Petitioner show cause why she should not be bound by the
S
PNA. That hearing will hopefully come back before me for determination S
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A in September. This hearing is to determine the financial arrangements A
between the parties in the meantime.
B B
C C
Background
D
4. The parties are now 61 and 29 years old respectively. At the D
time of the PNA the wife had just turned 21 years of age and the husband
E E
was 53. The wife is from the Ukraine originally and she travels on a
F Ukrainian passport. I am not sure what nationality the husband is – F
although reference is made to New Zealand in the PNA. The parties had
G G
been married for 7 years at the time that the decree nisi was pronounced
H and as I have said they have two young children. The husband describes H
himself in his Form E as a Chief Investment Officer, although there is no
I I
reference to an employer and the wife says that she is a housewife, but that
J she also engages in a little part time modelling and acting. J
K K
5. It is clear from the information at hand that the parties have
L enjoyed an extremely high standard of living. They lived, until recently, in L
a house on the south side of the island at a rental cost of HK$590,000 per
M M
month. A cursory glance of the husband’s bank accounts show very large
N sums of money going in and out. I am told that they enjoyed 5 star N
holidays and that the wife was not really required to budget. During the
O O
course of the proceedings to date the wife has been called “spoiled”. I
P would accept however, as pointed out by Mr Pilbrow S.C for the wife, that P
if she is spoiled then that is because the husband has chosen to spoil her.
Q Q
There is no doubt that to date she and the children have enjoyed what
R appears to be a luxurious lifestyle. R
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A The prenuptial agreement A
6. Given the time constraints it has not been possible for the wife
B B
to file an affidavit in response to the husband’s affidavit on the Crossley
C C
application. Thus I do not know as yet what her case is on the PNA. I
D
should add however that on the face of it this case is clearly not D
comparable to BN v MA [2013] EWCA 4250 (Fam), an English case which
E E
both sides referred me too during the course of this hearing. I will come to
F that case again later. It is also of note that the parties entered into this PNA F
a long time before the recent decision in our Court of Final Appeal namely
G G
SPH v SA [2014] 17 HKCFAR 364.
H H
7. As to the actual terms of the PNA, it was agreed inter alia that
I I
the wife would receive a lump sum on a sliding scale dependent on the
J number of years that the parties had been married. Given that they had J
been married for between 7 and 8 years it is agreed that according to the
K K
PNA this would entitle the wife to a lump sum of US$850,000. She would
L not be entitled to any maintenance for herself. Maintenance for the L
children is set at US$50,000 per annum per child, which could be varied
M M
by agreement. In addition the husband agreed to pay for the children’s
N educational expenses, all reasonable extracurricular activities and all N
reasonable expenses incurred in respect of the children’s access visits to
O O
him. It appears to have been presumed that the children would be primarily
P based with their mother. P
Q Q
8. Counsel for the husband did however acknowledge in court
R that the husband’s legal team recognised, as set out in the PNA, that in so R
far as the children are concerned that the level of maintenance should be
S S
set by the court in the absence of any agreement between the parties.
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A 9. In addition the husband agreed to provide a home for the wife A
and children – but on the following terms:
B B
7.1 “The matrimonial home” means the property that has
been purchased or leased by the parties and is their
C C
habitual and main place of joint residence, at the time of
the parties’ separation or dissolution of the marriage, and
D does not refer to any property purchased for investment D
purposes and/or as a holiday home.
E 7.2 B [the husband] confirms that in the event of M [the wife] E
and B [the husband] having a child or children during
F their marriage that he will make reasonable provision for F
M and any child or children of the marriage for an
appropriate home to compensate for the loss of such
G matrimonial home following separation or dissolution of G
the marriage.
H H
7.3 In the event of the termination, or annulment of the
marriage or the separation of the parties, it is agreed that
I the value of the said matrimonial home shall remain I
entirely with B and M waives any claim, financial or
otherwise in respect of the same.
J J
K The weight to be attached to the prenuptial agreement prior to the K
Crossley application being heard
L L
10. As I have said both parties referred me to BN v MA [2013]
M EWCA 4250 (Fam). Counsel for the husband, Mr Barnes, argued that it M
would be inappropriate to stray too far away from the terms of the PNA
N N
pending determination of the Crossley application. Mr Pilbrow meanwhile
O attempted to convince the court that the wife was not seeking to go outside O
the PNA in that she was only seeking funds for the children and for herself
P P
as a “carer” of the children and she was not asking me to prejudge the
Q PNA. Q
R R
11. With respect however it seems to me that this approach is
S somewhat artificial given that it is clear on the face of the documents that S
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A the PNA does not allow for any maintenance to be paid to the wife either A
on an interim basis or otherwise:
B B
10. 10.1 In the event of the dissolution of the marriage by
divorce, B and M hereby undertakes that no
C C
application will be made by her for an Order for
alimony or maintenance or periodical payments
D against B, and B and M hereby agree that any D
financial settlement for M will be determined by
way of a capital payment only – if necessary paid
E by instalments as provided for below. E
F F
12. I also agree with Mr Barnes that there can be no doubt that
G that the wife is now seeking maintenance – at least on an interim basis. G
H H
13. I should add however that although the Hon Mr Justice
I Mostyn did make the following comments in BN v MA the factual I
circumstances in that case were very different from those in this case.
J J
33. In my judgment, when adjudicating a question of interim
maintenance, where there has been a prenuptial agreement, the
K court should seek to apply the terms of the prenuptial K
agreement as closely and as practically as it can, unless the
evidence of the wife in support of her application
L L
demonstrates, to a convincing standard, that she has a likely
prospect of satisfying the court that this agreement should
M not be upheld. In the absence of any evidence of that nature M
from the wife, it is my judgment that it is appropriate for me
to seek to apply the agreement to this case as closely as I can,
N provided that the wife is not left in any real predicament of N
need. In these circumstances, I am satisfied that the proposal
O advanced by Mr M in paragraph 8 of his skeleton argument is O
reasonable and should be adopted. The fact that the parties may
have agreed further things is no concern of mine. If the parties
P wish to make a voluntary agreement in relation to further aspects, P
that is a matter for them, but it is not something I am going to
Q
impose on the husband. It will be a matter for him. Q
R In particular Mostyn J had formed a very definite initial view of the wife’s R
claim. He said amongst other things that it was “extremely speculative”.
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A He also reiterated the test for all nuptial agreements, which bears some A
repeating, namely:
B B
The Supreme Court has modified the test for the treatment of
these nuptial agreements, as expressed in Edgar and Xydhias and,
C C
indeed, in MacLeod, so as to provide one single test applicable to
all nuptial agreements, which is this, “The court should give
D effect to a nuptial agreement that is freely entered into by D
each party with a full appreciation of its implications unless
in the circumstances prevailing it would not be fair to hold
E the parties to their agreement”. That now is the test to be E
applied in every case where a nuptial agreement falls for
F consideration. F
G 14. I should add that in this instance I have formed no such view. G
Putting it as neutrally as I can, and bearing in mind the fact that as I have
H H
said I have yet to see any evidence from the wife on the Crossley
I application, it seems to me that this wife will have an arguable case on the I
PNA. I have no doubt that arguments will inter alia be raised in relation to
J J
the “fairness” of the document. Thus it seems to me that the appropriate
K approach in the circumstances is that the terms of this order should be as K
close to the PNA as fairness dictates in the circumstances.
L L
M Offers of settlement M
15. At the beginning of the hearing the husband offered to pay
N N
what he has been paying to date and declined to offer any undertakings on
O O
the premise that there was no need. He also agreed that the wife should be
P
able to continue to use her credit cards up to a limit of HK$220,000 per P
month. The difficulty from the wife’s perspective is that she said that she
Q Q
did not have access to any cash. She asked that a) the new status quo be
R maintained (presumably to include the new accommodation that she and R
the children have moved into), b) she be provided with legal funding and c)
S S
that she be provided with some cash.
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A A
16. As the hearing progressed more information came to light.
B B
The husband confirmed that he was presently paying the following sums
C C
for or on behalf of the wife and children:
* Complete List of Monthly Household Expenditure Expenses Direct to
D D
Ms BL & the children)
Mar-15
E House Rental HK$142,000.00 E
School Fee for AK HK$16,196.00 * HK$9,000.00 will
(PN3) be collected from
F May 1, 2015 as half F
day school fee*
G Domestic Helpers HK$4,110.00 G
Electricity HK$1,066.00 * Consumption from
Feb 17 – Mar 18,
H 2015 H
Gas HK$1,000.00 * Estimated
consumption,
I I
awaiting current bill
to be received
J Water HK$1,000.00 * Estimated J
consumption,
awaiting current bill
K to be received K
HK$165,372.00
L School Fee for NK * total HK$88,500.00 was PAID covered L
(R1 – LP HKIS) Jan – Jun 2015 school term*
M M
17. He said that this was in keeping with paragraph 7 of the PNA
N N
when he agreed to provide the wife and children with a home and
O
paragraph 9 in relation to the provision of school fees. He undertook O
during the hearing to continue to make these payments.
P P
Q 18. He also agreed to enter into undertakings as set out in Q
paragraphs 1 (a) – (e) of the wife’s summons referred to in paragraph 1
R R
above.
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A 19. In so far as the litigation funding is concerned the husband A
initially proposed advancing the wife US$100,000 from her lump sum
B B
payment of US$850,000. Towards the end of the hearing he upped this to
C C
US$300,000. Further he changed his stance slightly in that Mr Barnes said
D
(and I paraphrase) that the issue of whether and how this lump sum D
payment should be regarded would ultimately be decided by the court.
E E
This would include whether or not it should be applied against the lump
F sum of US$850,000. He added that this was without prejudice to either F
sides claim. Therefore he argued that the wife’s claim for litigation funding
G G
could not succeed.
H H
20. Thus the US$300,000 proposed by the husband for litigation
I I
funding was not, at the end of the day, necessarily on the premise that this
J sum should be advanced against the wife’s lump sum of US$850,000. J
K K
The law
L Maintenance pending suit L
21. The ordinance states that the only governing principle is that
M M
the court shall make such order, as it considers reasonable in all of the
N circumstances of the case. (See s 3 and s 5 MPPO Cap 192). N
Consequently applications such as these are of necessity approached on a
O O
broad-brush basis
P P
Litigation costs
Q Q
22. In so far as the law on the funding of litigation costs is
R concerned reference will be made to Currey v Currey [2006] EWCA Civ R
1338.
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A Discussion A
23. The main difficulty with the wife’s case is that she was unable
B B
to provide the court with an accurate budget. This is rightly considered a
C C
basic pre requisite of any maintenance pending suit application (see HJFG
D
v KCY [2012] 1 HKLRD 95). She has therefore “worked backwards”. In D
her affidavit of the 24 March 2015 she sought approximately HK$360,000
E E
per month as follows:
F F
12. Accordingly, before the date of my petition the total sum
G available to me and the Children each month was G
approximately HK$361,746 being:-
H • HK$283,246 Average supplementary card H
spending in 2014
• HK$30,000 Cash
I I
• HK$9,500 Salary
• HK$39,000 USD$5,000 for Moscow property
J costs J
HK$361,746
K K
24. This was on the premise that, on her case, she had almost
L L
unfettered use of the credit cards.
M M
14. According to B [the husband] (in Annex 5.1-5.2 of his
N Form E) my average monthly expenditure on the N
Supplementary Cards was as follows:
O O
• 2011: HK$181,203 per month or HK$2.174m per
annum
P • 2012: HK$256,710 per month or HK$3.080m per P
annum
Q
• 2013: HK$249,141 per month or HK$2.989m per
Q
annum
• 2014: HK$283,246 per month pr HK$3.398m per
R annum R
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A 25. In addition, as indicated above, she had received an income of A
HK$10,000 (less MPF of HK$500) from the husband’s company plus an
B B
additional HK$30,000 cash from him direct. The HK$9,500 “salary”
C C
stopped in February 2014 and the additional HK$30,000 stopped sometime
D
in mid 2014. Since then she has had no access to regular cash sums. D
Counsel for the husband points out that she can simply take out a cash
E E
advance from the credit cards – which is true, but probably does little to
F alleviate her concerns about the level of funds presently available to her. F
G G
26. In determining the appropriate level to be paid I am also
H conscious on the one hand that it is not possible nor appropriate to H
approach this case on the premise that the wife should be able to “get by”
I I
on the money offered to her by the husband. To that end I was referred to
J the judgment of my brother judge – HH Judge Bruno Chan in C v F [2006] J
1 HKFLR 41, who in turn quoted from Thorpe J in F v F (Ancillary Relief:
K K
Substantial Assets) 1995 2 FLR 45 as follows:
L Thus, in determining the wife’s reasonable needs on an interim L
basis it is important as a matter of principle that the court should
endeavour to determine reasonableness according to the
M standards of the ultra-rich and to avoid the risk of confining them M
by the application of scales that would seem generous to
N
ordinary people. Thus I conclude that it would be wrong in N
principle to determine the application on some broad conclusion
that if the wife cannot manage at the rate of a quarter of a million
O a year, she ought to be able to. I think that it is necessary to O
establish a yardstick that more nearly reflects the standard of
living which has been the norm for the wife ever since marriage
P P
and for the husband for considerably longer.
Q Q
27. I agree. On the other hand I also accept, as indicated above,
R that it would be appropriate, in the circumstances of this case, for the terms R
of the order to be as close to the PNA as fairness dictates in the
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A circumstances. I have also taken into account the offers now made by the A
husband during the course of the hearing.
B B
C C
28. Although the PNA makes no allowance for maintenance for
D
the wife either in her own right or as the children’s carer, the husband D
clearly acknowledges that in the short term at least she should have access
E E
to an appropriate level of interim funding otherwise he would not have
F offered her the continued use of the credit cards. I should add that it seems F
to me that that must be the most appropriate way to proceed and that
G G
fairness dictates that the wife must have access to an appropriate level of
H interim support regardless of the outcome of the Crossley application. H
However it is of note that the husband has not offered to pay her
I I
maintenance for the children as a separate item, even as anticipated in the
J PNA in the sum of US$50,000 per child per annum. It is not clear why this J
is so – unless maintenance for the children is to be rolled into the credit
K K
card provision. At paragraph 9 of the PNA the following is stated in
L relation to the children’s maintenance: L
B and M undertake that they will look after and care for all
M children born of the marriage and/or adopted by them during the M
subsistence of the marriage, to the best of their ability. B and
M hereby further agree that whilst each of them will abide by
N any Order of a Court of competent jurisdiction setting out the N
level of their respective obligations in respect of any children
O they might have, that might be made following their separation O
and/or dissolution of the marriage, that they hereby agree that in
the event of such separation and/or dissolution that provided any
P such child or children remain in the care and control of M that B P
will pay to M for the maintenance of each child the sum of
Q
HK$50,000.00 per child per annum (such sum to be varied only Q
by agreement) and he will in addition pay for their educational
expenses, all reasonable extracurricular activities and for all
R reasonable expenses incurred in respect of their access visits to R
see him.
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A 29. This equates to HK$32,500 per child per month. It seems to A
me that on a broad brush basis and in keeping with the provisions of the
B B
PNA, it would be appropriate for this sum to be paid to the wife, for and on
C C
behalf of the children. How much of the HK$220,000 per month relates to
D
the children’s additional expenses (including their share of any general D
expenses) and how much relates to the wife’s expenses either as the
E E
children’s carer or otherwise remains to be seen.
F F
30. In so far as the provision for the credit cards is concerned,
G G
there was some debate during the hearing about how far one should go
H back in determining an appropriate bench mark for credit card expenditure. H
The wife originally asked for HK$283,246 per month based on her credit
I I
card expenditure for 2014. I have taken into account however that the
J marriage was in trouble towards the end of that year and the husband J
complains about the wife’s expenses during that period. If however we go
K K
back to 2012 or 2013 the level of expenditure is reduced slightly. In round
L figures it seems to me that HK$250,000 on credit card expenditure would L
be reasonable and in keeping with the level of expenditure enjoyed by the
M M
wife in happier times. In the wife’s summons she seeks HK$220,000 per
N month and the husband has confirmed that he will provide that sum – or N
that figure as a combination of cash and credit card provision. This seems
O O
like a sensible compromise in the circumstances. I will therefore hold the
P parties to their tacit understanding in this respect. In the event that the wife P
wishes to receive some of this figure in cash then that is a matter for
Q Q
further discussion between the parties.
R R
31. The real issue is that the husband does not agree to pay
S S
anything in addition to this sum – either as maintenance for the children or
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A as a separate cash component for the wife. I accept that during the A
marriage the wife received approximately HK$39,500 in cash to cover
B B
other extraneous items including some food. There would however have
C C
been some cross over here between the expenses for the wife and the
D
expenses for the children. The same obviously applies to the credit card D
expenditure. In such circumstances I am not inclined to order that any
E E
further sums be provided in addition to the maintenance of HK$65,000 per
F month for the children. I am also not inclined to allow any additional sums F
for the property in Moscow given the lack of documentary evidence in
G G
support of the wife’s claims.
H H
32. Thus the wife will receive or shall benefit from the provision
I I
of the following sums:
J a) Credit card provision (or cash/credit HK$220,000 J
card alternative)
K K
b) Housing etc as set out in paragraph 16 HK$165,000
L above L
c) Children’s maintenance HK$65,000
M M
Total HK$450,000
N N
33. In addition the husband will be responsible for any additional
O O
items in paragraph 1 1(a) - (e) above to the extent that they are not already
P paid for by him. P
Q Q
Litigation funding
R 34. The husband’s basic stance is that the court does not need to R
consider the issue of litigation funding given that he is now prepared to
S S
advance the wife US$300,000 – which should be sufficient to cover her
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A costs up to and including the Crossley application. However that was not A
the husband’s stance originally and given that it seems to me appropriate to
B B
consider the matter more fully.
C C
D
35. The Family Court in Hong Kong has consistently relied on the D
guidance provided by Currey v Currey (no 2) [2007] 1 FLR 946 in this
E E
respect. In considering the issue of litigation funding the two stage
F approach identified by Wilson LJ in that case bears some repetition namely F
that the four points be considered first as set out below, and that the matter
G G
then be considered in the round as part of an overarching enquiry. The
H four points are as follows: H
(1) That the applicant spouse has no assets, or none that can
I reasonably be deployed (at para [19], [20]). I
(2) That she can provide no security for borrowing, or none
which can reasonably be offered (at paras [19], [20]).
J (3) That she cannot reasonably obtain legal services by J
offering a charge on the outcome of the litigation (at para [20]
K
and see Sears Tooth, per Wilson J). K
(4) That she cannot secure publicly funded legal help ‘at a
level of expertise apt to the proceedings’ (at para [20])”
L L
The Four Points
M M
36. Turning to the four points first, on the wife’s evidence it
N seems to me that although it could be said that she does have some assets N
at her disposal, which might be reasonably deployed by her to pay for legal
O O
costs e.g. the property in Moscow and the Ukraine, I accept that the reality
P is that it will be very difficult if not impossible in the present political P
climate for her to borrow against these properties. This is especially so
Q Q
given that she does not work in a full time capacity. I also accept that it
R R
would not be appropriate for her to sell her jewellery.
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A 37. It was also suggested that her lawyers might be prepared to A
act for her on credit – which seemed to me to be quite an extraordinary
B B
suggestion given the circumstances. Alternatively it was suggested that she
C C
might use some of her income for that purpose. With respect given that her
D
costs estimate is HK$2.3 million – it is clear that it will simply be D
impossible for her to utilize the funds that she needs to support herself and
E E
the children at a reasonably high level and at the same time to pay for her
F legal costs from that same source. I also accept that any funds that she F
had are now almost depleted. I also accept that it is unlikely that she could
G G
obtain legal services on the basis suggested by 3) above or that she would
H be eligible for legal aid. H
I I
Overarching enquiry
J 38. I also accept that in considering this matter overall that it J
would be entirely reasonable for the husband to provide the wife with
K K
litigation funding. Thus the offer of US$300,000 is accepted – but this is
L not subject to any caveats. This will also be subject to the normal L
undertaking that the sum of US$300,000 shall be paid directly to the wife’s
M M
lawyers. I should add that it is accepted that this sum is likely to take the
N wife up to and including the Crossley application. Depending on the N
outcome of that hearing the issue of litigation funding will most probably
O O
need to be considered again.
P P
Costs
Q Q
39. In all of the circumstances of this case it seems to me that it
R would be appropriate to reserve costs for the time being. R
S S
The order
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A UPON the Respondent husband undertaking:- A
(a) That he will guarantee until further order the
B B
payment of the salary and all employment
obligations arising out of the Petitioner’s
C C
re-employment of her domestic helper ABA and
take all steps necessary with the Immigration
D Department to facilitate the helper resuming her D
position as a helper in the Petitioner’s home
E forthwith without having to return to the E
Philippines;
F F
(b) That he will not take any steps to terminate the
domestic helper contract for the second helper
G G
NA and will, when she is released from hospital,
ensure until further order that her salary and all
H of his employer obligations towards her continue H
to be met by him;
I I
(c) That he will continue to pay until further order
J the rental on the Petitioner’s and the children’s J
home at XX, A Garden, XX Shouson Hill Road,
Hong Kong together with all utilities bills
K K
relating to the said property;
L (d) That he will to pay for all school fees and L
education related expenses for the Children;
M M
(e) That he will maintain until further order the
N Petitioner’s subsidiary credit cards without any N
further reduction in the combined total level of
O
credit currently standing at HK$220,000 per O
month:-
P P
1) AE Company Corporate Card
2) Citibank Octopus Visa Card
Q (xxxx-xxxx-xxxx-6266) Q
3) Citibank Rewards Master Card
R (xxxx-xxxx-xxxx-9618) R
4) HSBC Visa Platinum Card
S (xxxx-xxxx-xxxx-1843); S
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A (f) Or in the alternative that he will provide A
cash/credit card provision up to a maximum of
B B
HK$220,000 per month.
C C
IT IS ORDERED THAT
D
1) The Respondent shall pay interim maintenance to the D
Petitioner for the two children of the family in the sum of
E E
HK$32,500 per child per month the first payment to be
F backdated to the 1 April 2015 and thereafter to be paid on the F
1st day of each succeeding month until further order.
G G
2) The sum of US$300,000 shall be paid to the Petitioner’s
H solicitors by the Respondent as litigation funding, such sum to H
be paid within the next 28 days.
I I
3) Costs be reserved.
J J
K K
L ( Sharon D. MELLOY ) L
District Judge
M M
N N
Mr David Pilbrow SC instructed by Howse Williams & Bowers for the
O Petitioner O
Mr Peter Barnes instructed by Withers for the Respondent
P P
Q Q
R R
S S
T T
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由此
A A
FCMC 17190 / 2014
B B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D MATRIMONIAL CAUSES D
NUMBER 17190 OF 2014
E E
F ---------------------------- F
G BETWEEN G
H
B, L Petitioner H
and
I I
K, WS Respondent
J J
K K
------------------------
L L
M
Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to M
public)
N N
Date of Hearing: 26 March 2015
O Date of Judgment: 13 April 2015 O
P P
----------------------------------
Q Q
JUDGMENT
(Maintenance Pending Suit, pre nuptial agreements and litigation funding)
R R
----------------------------------
S S
T T
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V V
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由此
A Introduction A
1. This is an application by the Petitioner wife. In her summons
B B
dated the 20 March 2015 she requests that:
C 1. Upon the undertakings requested of the Respondent as C
follows:
D (a) that he will guarantee until further order the D
payment of the salary and all employment
obligations arising out of the Petitioner’s
E re-employment of her domestic helper ABA and E
take all steps necessary with the Immigration
Department to facilitate the helper resuming her
F F
position as a helper in the Petitioner’s home
forthwith without having to return to the
G Philippines; G
(b) that he will not take any steps to terminate the
H domestic helper contract for the second helper NA H
and will, when she is released from hospital,
I ensure until further order that her salary and all of I
his employer obligations towards her continue to
be met by him;
J J
(c) That he will continue to pay until further order the
K
rental on the Petitioner’s and the children’s home K
at XX, A Garden, XX Shouson Hill Road, Hong
Kong together with all utilities bills relating to the
L said property; L
(d) That he will to pay for all school fees and
M M
education related expenses for the Children;
N (d) That he will maintain until further order the N
Petitioner’s subsidiary credit cards without any
further reduction in the combined total level of
O credit currently standing at HK$220,000:- O
P 1) AE Company Corporate Card P
2) Citibank Octopus Visa Card
(xxxx-xxxx-xxxx-6266)
Q 3) Citibank Rewards Master Card Q
(xxxx-xxxx-xxxx-9618)
4) HSBC Visa Platinum Card
R R
(xxxx-xxxx-xxxx-1843);
S S
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A (f) That he will take no steps which would interfere A
with the ability of the Petitioner’s mother EB to
B
remain in Hong Kong under her present visa; B
2. That the Respondent do pay to the Petitioner a monthly
C sum in maintenance pending suit to be determined by the C
court which will cover the reasonable living costs of the
Petitioner and the Children, inclusive of a sum to be
D D
determined for the upkeep of the Petitioner’s property at
xxx, Moscow, Russia and a monthly sum in legal fees up
E to and including the hearing of any Financial Dispute E
Resolution hearing.
F 3. Time for service of this summons be abridged. F
G 4. The Respondent do pay the costs of this application. G
H 2. Thus this is essentially an application for maintenance H
pending suit pursuant to s 3 Matrimonial Proceedings and Property
I I
Ordinance Cap 192 (MPPO) and an application for interim maintenance
J for the two children of the family pursuant to s 5 of the same ordinance. J
The wife also seeks provision for her legal costs up until the Financial
K K
Dispute Resolution hearing.
L L
3. This application differs from the norm in that it is brought in
M M
the shadow of an argument concerning a pre nuptial agreement (PNA)
N entered into by the parties on the 14 February 2007. The parties N
subsequently married in August 2007 and had two children who are now
O O
aged 5 and 3 years old respectively. The divorce petition was issued on the
P 15 December 2014 and the decree nisi was pronounced on the 2 March P
2015. On the 6 March 2015 the husband issued a summons, which has
Q Q
become known in England and Wales as a Crossley application, in which
R R
he asks that the Petitioner show cause why she should not be bound by the
S
PNA. That hearing will hopefully come back before me for determination S
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A in September. This hearing is to determine the financial arrangements A
between the parties in the meantime.
B B
C C
Background
D
4. The parties are now 61 and 29 years old respectively. At the D
time of the PNA the wife had just turned 21 years of age and the husband
E E
was 53. The wife is from the Ukraine originally and she travels on a
F Ukrainian passport. I am not sure what nationality the husband is – F
although reference is made to New Zealand in the PNA. The parties had
G G
been married for 7 years at the time that the decree nisi was pronounced
H and as I have said they have two young children. The husband describes H
himself in his Form E as a Chief Investment Officer, although there is no
I I
reference to an employer and the wife says that she is a housewife, but that
J she also engages in a little part time modelling and acting. J
K K
5. It is clear from the information at hand that the parties have
L enjoyed an extremely high standard of living. They lived, until recently, in L
a house on the south side of the island at a rental cost of HK$590,000 per
M M
month. A cursory glance of the husband’s bank accounts show very large
N sums of money going in and out. I am told that they enjoyed 5 star N
holidays and that the wife was not really required to budget. During the
O O
course of the proceedings to date the wife has been called “spoiled”. I
P would accept however, as pointed out by Mr Pilbrow S.C for the wife, that P
if she is spoiled then that is because the husband has chosen to spoil her.
Q Q
There is no doubt that to date she and the children have enjoyed what
R appears to be a luxurious lifestyle. R
S S
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A The prenuptial agreement A
6. Given the time constraints it has not been possible for the wife
B B
to file an affidavit in response to the husband’s affidavit on the Crossley
C C
application. Thus I do not know as yet what her case is on the PNA. I
D
should add however that on the face of it this case is clearly not D
comparable to BN v MA [2013] EWCA 4250 (Fam), an English case which
E E
both sides referred me too during the course of this hearing. I will come to
F that case again later. It is also of note that the parties entered into this PNA F
a long time before the recent decision in our Court of Final Appeal namely
G G
SPH v SA [2014] 17 HKCFAR 364.
H H
7. As to the actual terms of the PNA, it was agreed inter alia that
I I
the wife would receive a lump sum on a sliding scale dependent on the
J number of years that the parties had been married. Given that they had J
been married for between 7 and 8 years it is agreed that according to the
K K
PNA this would entitle the wife to a lump sum of US$850,000. She would
L not be entitled to any maintenance for herself. Maintenance for the L
children is set at US$50,000 per annum per child, which could be varied
M M
by agreement. In addition the husband agreed to pay for the children’s
N educational expenses, all reasonable extracurricular activities and all N
reasonable expenses incurred in respect of the children’s access visits to
O O
him. It appears to have been presumed that the children would be primarily
P based with their mother. P
Q Q
8. Counsel for the husband did however acknowledge in court
R that the husband’s legal team recognised, as set out in the PNA, that in so R
far as the children are concerned that the level of maintenance should be
S S
set by the court in the absence of any agreement between the parties.
T T
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A 9. In addition the husband agreed to provide a home for the wife A
and children – but on the following terms:
B B
7.1 “The matrimonial home” means the property that has
been purchased or leased by the parties and is their
C C
habitual and main place of joint residence, at the time of
the parties’ separation or dissolution of the marriage, and
D does not refer to any property purchased for investment D
purposes and/or as a holiday home.
E 7.2 B [the husband] confirms that in the event of M [the wife] E
and B [the husband] having a child or children during
F their marriage that he will make reasonable provision for F
M and any child or children of the marriage for an
appropriate home to compensate for the loss of such
G matrimonial home following separation or dissolution of G
the marriage.
H H
7.3 In the event of the termination, or annulment of the
marriage or the separation of the parties, it is agreed that
I the value of the said matrimonial home shall remain I
entirely with B and M waives any claim, financial or
otherwise in respect of the same.
J J
K The weight to be attached to the prenuptial agreement prior to the K
Crossley application being heard
L L
10. As I have said both parties referred me to BN v MA [2013]
M EWCA 4250 (Fam). Counsel for the husband, Mr Barnes, argued that it M
would be inappropriate to stray too far away from the terms of the PNA
N N
pending determination of the Crossley application. Mr Pilbrow meanwhile
O attempted to convince the court that the wife was not seeking to go outside O
the PNA in that she was only seeking funds for the children and for herself
P P
as a “carer” of the children and she was not asking me to prejudge the
Q PNA. Q
R R
11. With respect however it seems to me that this approach is
S somewhat artificial given that it is clear on the face of the documents that S
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由此
A the PNA does not allow for any maintenance to be paid to the wife either A
on an interim basis or otherwise:
B B
10. 10.1 In the event of the dissolution of the marriage by
divorce, B and M hereby undertakes that no
C C
application will be made by her for an Order for
alimony or maintenance or periodical payments
D against B, and B and M hereby agree that any D
financial settlement for M will be determined by
way of a capital payment only – if necessary paid
E by instalments as provided for below. E
F F
12. I also agree with Mr Barnes that there can be no doubt that
G that the wife is now seeking maintenance – at least on an interim basis. G
H H
13. I should add however that although the Hon Mr Justice
I Mostyn did make the following comments in BN v MA the factual I
circumstances in that case were very different from those in this case.
J J
33. In my judgment, when adjudicating a question of interim
maintenance, where there has been a prenuptial agreement, the
K court should seek to apply the terms of the prenuptial K
agreement as closely and as practically as it can, unless the
evidence of the wife in support of her application
L L
demonstrates, to a convincing standard, that she has a likely
prospect of satisfying the court that this agreement should
M not be upheld. In the absence of any evidence of that nature M
from the wife, it is my judgment that it is appropriate for me
to seek to apply the agreement to this case as closely as I can,
N provided that the wife is not left in any real predicament of N
need. In these circumstances, I am satisfied that the proposal
O advanced by Mr M in paragraph 8 of his skeleton argument is O
reasonable and should be adopted. The fact that the parties may
have agreed further things is no concern of mine. If the parties
P wish to make a voluntary agreement in relation to further aspects, P
that is a matter for them, but it is not something I am going to
Q
impose on the husband. It will be a matter for him. Q
R In particular Mostyn J had formed a very definite initial view of the wife’s R
claim. He said amongst other things that it was “extremely speculative”.
S S
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由此
A He also reiterated the test for all nuptial agreements, which bears some A
repeating, namely:
B B
The Supreme Court has modified the test for the treatment of
these nuptial agreements, as expressed in Edgar and Xydhias and,
C C
indeed, in MacLeod, so as to provide one single test applicable to
all nuptial agreements, which is this, “The court should give
D effect to a nuptial agreement that is freely entered into by D
each party with a full appreciation of its implications unless
in the circumstances prevailing it would not be fair to hold
E the parties to their agreement”. That now is the test to be E
applied in every case where a nuptial agreement falls for
F consideration. F
G 14. I should add that in this instance I have formed no such view. G
Putting it as neutrally as I can, and bearing in mind the fact that as I have
H H
said I have yet to see any evidence from the wife on the Crossley
I application, it seems to me that this wife will have an arguable case on the I
PNA. I have no doubt that arguments will inter alia be raised in relation to
J J
the “fairness” of the document. Thus it seems to me that the appropriate
K approach in the circumstances is that the terms of this order should be as K
close to the PNA as fairness dictates in the circumstances.
L L
M Offers of settlement M
15. At the beginning of the hearing the husband offered to pay
N N
what he has been paying to date and declined to offer any undertakings on
O O
the premise that there was no need. He also agreed that the wife should be
P
able to continue to use her credit cards up to a limit of HK$220,000 per P
month. The difficulty from the wife’s perspective is that she said that she
Q Q
did not have access to any cash. She asked that a) the new status quo be
R maintained (presumably to include the new accommodation that she and R
the children have moved into), b) she be provided with legal funding and c)
S S
that she be provided with some cash.
T T
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由此
A A
16. As the hearing progressed more information came to light.
B B
The husband confirmed that he was presently paying the following sums
C C
for or on behalf of the wife and children:
* Complete List of Monthly Household Expenditure Expenses Direct to
D D
Ms BL & the children)
Mar-15
E House Rental HK$142,000.00 E
School Fee for AK HK$16,196.00 * HK$9,000.00 will
(PN3) be collected from
F May 1, 2015 as half F
day school fee*
G Domestic Helpers HK$4,110.00 G
Electricity HK$1,066.00 * Consumption from
Feb 17 – Mar 18,
H 2015 H
Gas HK$1,000.00 * Estimated
consumption,
I I
awaiting current bill
to be received
J Water HK$1,000.00 * Estimated J
consumption,
awaiting current bill
K to be received K
HK$165,372.00
L School Fee for NK * total HK$88,500.00 was PAID covered L
(R1 – LP HKIS) Jan – Jun 2015 school term*
M M
17. He said that this was in keeping with paragraph 7 of the PNA
N N
when he agreed to provide the wife and children with a home and
O
paragraph 9 in relation to the provision of school fees. He undertook O
during the hearing to continue to make these payments.
P P
Q 18. He also agreed to enter into undertakings as set out in Q
paragraphs 1 (a) – (e) of the wife’s summons referred to in paragraph 1
R R
above.
S S
T T
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由此
A 19. In so far as the litigation funding is concerned the husband A
initially proposed advancing the wife US$100,000 from her lump sum
B B
payment of US$850,000. Towards the end of the hearing he upped this to
C C
US$300,000. Further he changed his stance slightly in that Mr Barnes said
D
(and I paraphrase) that the issue of whether and how this lump sum D
payment should be regarded would ultimately be decided by the court.
E E
This would include whether or not it should be applied against the lump
F sum of US$850,000. He added that this was without prejudice to either F
sides claim. Therefore he argued that the wife’s claim for litigation funding
G G
could not succeed.
H H
20. Thus the US$300,000 proposed by the husband for litigation
I I
funding was not, at the end of the day, necessarily on the premise that this
J sum should be advanced against the wife’s lump sum of US$850,000. J
K K
The law
L Maintenance pending suit L
21. The ordinance states that the only governing principle is that
M M
the court shall make such order, as it considers reasonable in all of the
N circumstances of the case. (See s 3 and s 5 MPPO Cap 192). N
Consequently applications such as these are of necessity approached on a
O O
broad-brush basis
P P
Litigation costs
Q Q
22. In so far as the law on the funding of litigation costs is
R concerned reference will be made to Currey v Currey [2006] EWCA Civ R
1338.
S S
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由此
A Discussion A
23. The main difficulty with the wife’s case is that she was unable
B B
to provide the court with an accurate budget. This is rightly considered a
C C
basic pre requisite of any maintenance pending suit application (see HJFG
D
v KCY [2012] 1 HKLRD 95). She has therefore “worked backwards”. In D
her affidavit of the 24 March 2015 she sought approximately HK$360,000
E E
per month as follows:
F F
12. Accordingly, before the date of my petition the total sum
G available to me and the Children each month was G
approximately HK$361,746 being:-
H • HK$283,246 Average supplementary card H
spending in 2014
• HK$30,000 Cash
I I
• HK$9,500 Salary
• HK$39,000 USD$5,000 for Moscow property
J costs J
HK$361,746
K K
24. This was on the premise that, on her case, she had almost
L L
unfettered use of the credit cards.
M M
14. According to B [the husband] (in Annex 5.1-5.2 of his
N Form E) my average monthly expenditure on the N
Supplementary Cards was as follows:
O O
• 2011: HK$181,203 per month or HK$2.174m per
annum
P • 2012: HK$256,710 per month or HK$3.080m per P
annum
Q
• 2013: HK$249,141 per month or HK$2.989m per
Q
annum
• 2014: HK$283,246 per month pr HK$3.398m per
R annum R
S S
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由此
A 25. In addition, as indicated above, she had received an income of A
HK$10,000 (less MPF of HK$500) from the husband’s company plus an
B B
additional HK$30,000 cash from him direct. The HK$9,500 “salary”
C C
stopped in February 2014 and the additional HK$30,000 stopped sometime
D
in mid 2014. Since then she has had no access to regular cash sums. D
Counsel for the husband points out that she can simply take out a cash
E E
advance from the credit cards – which is true, but probably does little to
F alleviate her concerns about the level of funds presently available to her. F
G G
26. In determining the appropriate level to be paid I am also
H conscious on the one hand that it is not possible nor appropriate to H
approach this case on the premise that the wife should be able to “get by”
I I
on the money offered to her by the husband. To that end I was referred to
J the judgment of my brother judge – HH Judge Bruno Chan in C v F [2006] J
1 HKFLR 41, who in turn quoted from Thorpe J in F v F (Ancillary Relief:
K K
Substantial Assets) 1995 2 FLR 45 as follows:
L Thus, in determining the wife’s reasonable needs on an interim L
basis it is important as a matter of principle that the court should
endeavour to determine reasonableness according to the
M standards of the ultra-rich and to avoid the risk of confining them M
by the application of scales that would seem generous to
N
ordinary people. Thus I conclude that it would be wrong in N
principle to determine the application on some broad conclusion
that if the wife cannot manage at the rate of a quarter of a million
O a year, she ought to be able to. I think that it is necessary to O
establish a yardstick that more nearly reflects the standard of
living which has been the norm for the wife ever since marriage
P P
and for the husband for considerably longer.
Q Q
27. I agree. On the other hand I also accept, as indicated above,
R that it would be appropriate, in the circumstances of this case, for the terms R
of the order to be as close to the PNA as fairness dictates in the
S S
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由此
A circumstances. I have also taken into account the offers now made by the A
husband during the course of the hearing.
B B
C C
28. Although the PNA makes no allowance for maintenance for
D
the wife either in her own right or as the children’s carer, the husband D
clearly acknowledges that in the short term at least she should have access
E E
to an appropriate level of interim funding otherwise he would not have
F offered her the continued use of the credit cards. I should add that it seems F
to me that that must be the most appropriate way to proceed and that
G G
fairness dictates that the wife must have access to an appropriate level of
H interim support regardless of the outcome of the Crossley application. H
However it is of note that the husband has not offered to pay her
I I
maintenance for the children as a separate item, even as anticipated in the
J PNA in the sum of US$50,000 per child per annum. It is not clear why this J
is so – unless maintenance for the children is to be rolled into the credit
K K
card provision. At paragraph 9 of the PNA the following is stated in
L relation to the children’s maintenance: L
B and M undertake that they will look after and care for all
M children born of the marriage and/or adopted by them during the M
subsistence of the marriage, to the best of their ability. B and
M hereby further agree that whilst each of them will abide by
N any Order of a Court of competent jurisdiction setting out the N
level of their respective obligations in respect of any children
O they might have, that might be made following their separation O
and/or dissolution of the marriage, that they hereby agree that in
the event of such separation and/or dissolution that provided any
P such child or children remain in the care and control of M that B P
will pay to M for the maintenance of each child the sum of
Q
HK$50,000.00 per child per annum (such sum to be varied only Q
by agreement) and he will in addition pay for their educational
expenses, all reasonable extracurricular activities and for all
R reasonable expenses incurred in respect of their access visits to R
see him.
S S
T T
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由此
A 29. This equates to HK$32,500 per child per month. It seems to A
me that on a broad brush basis and in keeping with the provisions of the
B B
PNA, it would be appropriate for this sum to be paid to the wife, for and on
C C
behalf of the children. How much of the HK$220,000 per month relates to
D
the children’s additional expenses (including their share of any general D
expenses) and how much relates to the wife’s expenses either as the
E E
children’s carer or otherwise remains to be seen.
F F
30. In so far as the provision for the credit cards is concerned,
G G
there was some debate during the hearing about how far one should go
H back in determining an appropriate bench mark for credit card expenditure. H
The wife originally asked for HK$283,246 per month based on her credit
I I
card expenditure for 2014. I have taken into account however that the
J marriage was in trouble towards the end of that year and the husband J
complains about the wife’s expenses during that period. If however we go
K K
back to 2012 or 2013 the level of expenditure is reduced slightly. In round
L figures it seems to me that HK$250,000 on credit card expenditure would L
be reasonable and in keeping with the level of expenditure enjoyed by the
M M
wife in happier times. In the wife’s summons she seeks HK$220,000 per
N month and the husband has confirmed that he will provide that sum – or N
that figure as a combination of cash and credit card provision. This seems
O O
like a sensible compromise in the circumstances. I will therefore hold the
P parties to their tacit understanding in this respect. In the event that the wife P
wishes to receive some of this figure in cash then that is a matter for
Q Q
further discussion between the parties.
R R
31. The real issue is that the husband does not agree to pay
S S
anything in addition to this sum – either as maintenance for the children or
T T
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由此
A as a separate cash component for the wife. I accept that during the A
marriage the wife received approximately HK$39,500 in cash to cover
B B
other extraneous items including some food. There would however have
C C
been some cross over here between the expenses for the wife and the
D
expenses for the children. The same obviously applies to the credit card D
expenditure. In such circumstances I am not inclined to order that any
E E
further sums be provided in addition to the maintenance of HK$65,000 per
F month for the children. I am also not inclined to allow any additional sums F
for the property in Moscow given the lack of documentary evidence in
G G
support of the wife’s claims.
H H
32. Thus the wife will receive or shall benefit from the provision
I I
of the following sums:
J a) Credit card provision (or cash/credit HK$220,000 J
card alternative)
K K
b) Housing etc as set out in paragraph 16 HK$165,000
L above L
c) Children’s maintenance HK$65,000
M M
Total HK$450,000
N N
33. In addition the husband will be responsible for any additional
O O
items in paragraph 1 1(a) - (e) above to the extent that they are not already
P paid for by him. P
Q Q
Litigation funding
R 34. The husband’s basic stance is that the court does not need to R
consider the issue of litigation funding given that he is now prepared to
S S
advance the wife US$300,000 – which should be sufficient to cover her
T T
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由此
A costs up to and including the Crossley application. However that was not A
the husband’s stance originally and given that it seems to me appropriate to
B B
consider the matter more fully.
C C
D
35. The Family Court in Hong Kong has consistently relied on the D
guidance provided by Currey v Currey (no 2) [2007] 1 FLR 946 in this
E E
respect. In considering the issue of litigation funding the two stage
F approach identified by Wilson LJ in that case bears some repetition namely F
that the four points be considered first as set out below, and that the matter
G G
then be considered in the round as part of an overarching enquiry. The
H four points are as follows: H
(1) That the applicant spouse has no assets, or none that can
I reasonably be deployed (at para [19], [20]). I
(2) That she can provide no security for borrowing, or none
which can reasonably be offered (at paras [19], [20]).
J (3) That she cannot reasonably obtain legal services by J
offering a charge on the outcome of the litigation (at para [20]
K
and see Sears Tooth, per Wilson J). K
(4) That she cannot secure publicly funded legal help ‘at a
level of expertise apt to the proceedings’ (at para [20])”
L L
The Four Points
M M
36. Turning to the four points first, on the wife’s evidence it
N seems to me that although it could be said that she does have some assets N
at her disposal, which might be reasonably deployed by her to pay for legal
O O
costs e.g. the property in Moscow and the Ukraine, I accept that the reality
P is that it will be very difficult if not impossible in the present political P
climate for her to borrow against these properties. This is especially so
Q Q
given that she does not work in a full time capacity. I also accept that it
R R
would not be appropriate for her to sell her jewellery.
S S
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A 37. It was also suggested that her lawyers might be prepared to A
act for her on credit – which seemed to me to be quite an extraordinary
B B
suggestion given the circumstances. Alternatively it was suggested that she
C C
might use some of her income for that purpose. With respect given that her
D
costs estimate is HK$2.3 million – it is clear that it will simply be D
impossible for her to utilize the funds that she needs to support herself and
E E
the children at a reasonably high level and at the same time to pay for her
F legal costs from that same source. I also accept that any funds that she F
had are now almost depleted. I also accept that it is unlikely that she could
G G
obtain legal services on the basis suggested by 3) above or that she would
H be eligible for legal aid. H
I I
Overarching enquiry
J 38. I also accept that in considering this matter overall that it J
would be entirely reasonable for the husband to provide the wife with
K K
litigation funding. Thus the offer of US$300,000 is accepted – but this is
L not subject to any caveats. This will also be subject to the normal L
undertaking that the sum of US$300,000 shall be paid directly to the wife’s
M M
lawyers. I should add that it is accepted that this sum is likely to take the
N wife up to and including the Crossley application. Depending on the N
outcome of that hearing the issue of litigation funding will most probably
O O
need to be considered again.
P P
Costs
Q Q
39. In all of the circumstances of this case it seems to me that it
R would be appropriate to reserve costs for the time being. R
S S
The order
T T
U U
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A UPON the Respondent husband undertaking:- A
(a) That he will guarantee until further order the
B B
payment of the salary and all employment
obligations arising out of the Petitioner’s
C C
re-employment of her domestic helper ABA and
take all steps necessary with the Immigration
D Department to facilitate the helper resuming her D
position as a helper in the Petitioner’s home
E forthwith without having to return to the E
Philippines;
F F
(b) That he will not take any steps to terminate the
domestic helper contract for the second helper
G G
NA and will, when she is released from hospital,
ensure until further order that her salary and all
H of his employer obligations towards her continue H
to be met by him;
I I
(c) That he will continue to pay until further order
J the rental on the Petitioner’s and the children’s J
home at XX, A Garden, XX Shouson Hill Road,
Hong Kong together with all utilities bills
K K
relating to the said property;
L (d) That he will to pay for all school fees and L
education related expenses for the Children;
M M
(e) That he will maintain until further order the
N Petitioner’s subsidiary credit cards without any N
further reduction in the combined total level of
O
credit currently standing at HK$220,000 per O
month:-
P P
1) AE Company Corporate Card
2) Citibank Octopus Visa Card
Q (xxxx-xxxx-xxxx-6266) Q
3) Citibank Rewards Master Card
R (xxxx-xxxx-xxxx-9618) R
4) HSBC Visa Platinum Card
S (xxxx-xxxx-xxxx-1843); S
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A (f) Or in the alternative that he will provide A
cash/credit card provision up to a maximum of
B B
HK$220,000 per month.
C C
IT IS ORDERED THAT
D
1) The Respondent shall pay interim maintenance to the D
Petitioner for the two children of the family in the sum of
E E
HK$32,500 per child per month the first payment to be
F backdated to the 1 April 2015 and thereafter to be paid on the F
1st day of each succeeding month until further order.
G G
2) The sum of US$300,000 shall be paid to the Petitioner’s
H solicitors by the Respondent as litigation funding, such sum to H
be paid within the next 28 days.
I I
3) Costs be reserved.
J J
K K
L ( Sharon D. MELLOY ) L
District Judge
M M
N N
Mr David Pilbrow SC instructed by Howse Williams & Bowers for the
O Petitioner O
Mr Peter Barnes instructed by Withers for the Respondent
P P
Q Q
R R
S S
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