B v. B

bjbj FCMC003105/1999 Headnote B v. B Family Law - r. 80 Matrimonial Causes Rules (Cap. 179) - transfer of proceedings to Court of first Instance - relevant matters to consider. FCMC 3105/1999 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 3105 OF 1999 ----------------- BETWEEN Petitioner Respondent ----------------- Coram: Deputy Judge Jenkins in Chambers Date of Hearing: 2 June 2000 Date of Ruling: 11 July 2000 ----------------- RULING ----------------- REASONS FOR DECISION I dismissed the Petitioner's application to have this matter transferred to the Court of First Instance. These are my reasons. The application was made under r. 80 Matrimonial Causes Rules Cap 179A. r. 80 (3) states: The court may order the transfer to the Court of First Instance of any application for ancillary relief pending in the district court where the transfer appears to the court to be desirable. r. 80 (5) states: In considering whether an application should be transferred to the Court of First Instance the court shall have regard to all relevant considerations, including the nature and value of the property involved, the relief sought and the financial limits for the time being relating to the jurisdiction of the district court in other matters. The parties were married in Hong Kong in 1978. They have two children, twins, who were born in 1983. In March 1999 the wife petitioned for divorce on the basis of the husband's admitted adultery. A decree nisi was pronounced on 22nd October 1999. By consent custody of the children was granted to the parties jointly with care and control to the wife. The wife's claim for financial relief remains unresolved and it is this aspect of the matter that the wife wishes transferred to the Court of First Instance. Mr Erving who appeared for the wife argued three matters. He referred to the nature and value of the property involved in the ancillary application for financial relief. Secondly the husband is a prominent solicitor and thirdly costs awarded as a party and party basis in the District Court are only two thirds of those allowed in the High Court. It seems that the total value of the assets involved is about HK$40,000,000.00, clearly a substantial amount, but also of significance is that the bulk of these assets is contained in a discretionary trust set up by the husband in 1996. The largest asset held by the trust is an investment account valued in December 1999 at US$4,660,412.00. The trust was established under the law of the Cook Islands and the beneficiaries are: the Husband the Wife the Husband's children and remoter issue the children's spouses and remoter issue a relative of the Wife. Mr Erving suggested that the distribution of the trust funds could well prove difficult and that complex questions of law might arise. Mr Peaker who appeared for the husband contended that any proposed break up of the trust and distribution of its assets was not a complicating factor and that the total value of the assets at about HK$40,000,000.00 was not so high as to deprive this court of jurisdiction. He pointed to the decision of Deputy Judge Saunders, as he then was, in DJ No 7927 of 1995 a case where the total assets were possibly in excess of HK$30,000,000.00. An application to transfer those proceedings to the High Court failed the judge noting that the amount at issue though significant was "not a sufficient ground to transfer the proceedings to the High Court". The Court of Appeal did subsequently allow an appeal against the refusal to transfer but on other grounds. Mr Peaker also referred to the case of Li and Li Civil Appeal (No 70 of 1998) which was heard on appeal from the Family Court where the family assets were at least HK$90 million with a further $27.3 million described as the husband's potential assets. There was no suggestion that the Family Court should not have had jurisdiction. The other points raised by Mr Erving can be dealt with shortly. Whilst I have no doubt that the husband can fairly be described as a prominent solicitor I simply do not see how this can be a relevant consideration. The status of a litigant whether professional, social or whatever cannot surely be a factor in determining the venue of a hearing. The husband in any event is not suggesting that it is somehow beneath his dignity to appear in the Family Court rather than the High Court but even if he did I do not think that it can possibly be a factor for my consideration. I am doubtful whether the costs argument can be a relevant consideration as no order for costs will be made of course until the end of the hearing. I am not prepared to speculate as to who will succeed on costs. Even if I was to speculate it is surely wrong to transfer this case on such a basis. But in any event, if the circumstances justify a more generous costs order than on a party and party basis then taxation on a common fund basis can be ordered. I believe that the following matters referred to by HH Judge Hartmann (as he was then) in Jack v. Jack and another (DJ No 3782 of 1995) are relevant considerations and should properly be taken into account in deciding whether to order a transfer, They are: "where there is a matter of public interest; where there are novel or difficult points of law to be resolved; where delay will work a clear injustice and/or where there is unduly complicated or conflicting evidence the resolution of which is likely to be so protracted that it will unduly prejudice the Family Court lists and this work against the interests of other litigants". In my view none of these factors are present in this case and further none of the specific matter matters in r.80(5) apply either. For these reasons I must dismiss the application with costs to the Respondent. (M.C. Jenkins) Deputy Judge Representation: Mr Erving of m/s Erving Brettell for Petitioner Mr Peaker of m/s Fairbairn, Catley, Low & Kong for Respondent PAGE - PAGE \* MERGEFORMAT - &`#$ FCMC003105/1999 B v. B Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR FCMC003105/1999 B v. B Title Microsoft Word Document MSWordDoc Word.Document.8 FCMC003105/1999 B v. B Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR FCMC003105/1999 B v. B Title