H v. W AND OTHERS

H v. W AND OTHERS

Applying the sharing principle and s7 MPPO, the court found H had materially breached his duty of full and frank disclosure, destroyed/withheld documents and engaged in conduct justifying adverse inferences and additions to the matrimonial pool; the offshore trust was a discretionary family trust (not a 'dear me' trust) but variation was justified to achieve a clean break by removing H as beneficiary; 50% of the trust value was treated as a financial resource for W; the court quantified disclosed and reasonably inferred undisclosed assets, applied a conservative market-based growth rate, calculated Duxbury needs and ordered H to transfer specified properties and pay a lump sum...

Citation
H v. W AND OTHERS
Parties
Petitioner: H; 1st Respondent: W; 2nd Respondent: K; 3rd Respondent: B
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 September 2013
Case Number
HCMC6/2008
Procedural Posture
Ancillary Relief (matrimonial) / Final Judgment (court of First Instance)
Outcome
Judgment partially for 1st respondent (W). Trust varied; H ordered to exit trust and to make transfers and lump sum payment; adverse inferences applied and undisclosed assets added back; declarations as to third party ownership made; indemnity costs awarded against H.
Legal Topics
Ancillary Relief, Sharing Principle, Variation of Trust, Non Disclosure and Adverse Inference, Nominee Arrangements, Sham Transaction, Duxbury Needs, Costs (indemnity)
Source Language
EN
Family Law Trusts Property Law Equity Civil Procedure Ancillary Relief Sharing Principle Variation of Trust +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 7 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

H

Petitioner

W

1st Respondent

K

2nd Respondent

B

3rd Respondent

Procedural Posture

Ancillary Relief (matrimonial) / Final Judgment (court of First Instance)

Legal Issues

  1. 1 Size and composition of the matrimonial asset pool including undisclosed assets
  2. 2 Whether and on what terms the offshore family trust should be varied and treated as a financial resource
  3. 3 Whether adverse inferences should be drawn from H's failure of full and frank disclosure and destroyed documents

Ratio Decidendi

Applying the sharing principle and s7 MPPO, the court found H had materially breached his duty of full and frank disclosure, destroyed/withheld documents and engaged in conduct justifying adverse inferences and additions to the matrimonial pool; the offshore trust was a discretionary family trust (not a 'dear me' trust) but variation was justified to achieve a clean break by removing H as beneficiary; 50% of the trust value was treated as a financial resource for W; the court quantified disclosed and reasonably inferred undisclosed assets, applied a conservative market-based growth rate, calculated Duxbury needs and ordered H to transfer specified properties and pay a lump sum...

Court Disposition

Judgment partially for 1st respondent (W). Trust varied; H ordered to exit trust and to make transfers and lump sum payment; adverse inferences applied and undisclosed assets added back; declarations as to third party ownership made; indemnity costs awarded against H.

Orders

  • Trust varied: H removed as beneficiary and relinquishes all rights under the Trust; W to be sole Designated Beneficiary with the three children as beneficiaries
  • H to execute all documents necessary to effect the variation and renunciation of his interests and powers under the Trust