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FCDJ 4722/1992 B
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IN THE DISTRICT COURT OF THE B

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HONG KONG SPECIAL ADMINISTRATIVE REGION
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C DIVORCE JURISDICTION
SUIT NO. 4722 OF 1992 D
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E ---------------------

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BETWEEN
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H W Petitioner
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And
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W Respondent K
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Coram : Deputy Judge C.K. Chan in Chambers
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N Date of Hearing : 20 April 2005
Date of Ruling : 29 April 2005 O
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----------------------------------------------- Q
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REASONS FOR RULING
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T
T Application
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B
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1. This is an application by the Respondent husband for leave to file a
C
C notice of application for ancillary relief against the Petitioner wife under
Rule 68 of the Matrimonial Causes Rules, Cap. 179. D
D

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2. The application was originally heard in Chinese. Since

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reference will be made to some English authorities in this ruling, I have F

decided to deliver this ruling in English.

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3. For convenience, I shall call the Respondent “the Husband” H

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and the Petitioner “the Wife” in the ruling herein below.
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I

J
J Background

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4. The Husband is now aged 71 and the Wife aged 51. They
L
L married in 1971. During the marriage, three children were born out of
wedlock and they are now all grown up. M
M

N
N 5. After marriage and up to the year of 1990, the parties had
operated various businesses in Hong Kong including an amusement park, O
O
several ballrooms and a sauna. The businesses were all successful. There is
P
P now a dispute on the ownership of those business ventures. The Husband
said they were his business and the Wife said they were hers. Q
Q

R
R 6. In 1984, a property at Yuen Long (“the said property”) was
purchased in the joint names of the parties at a price of $600,000. S
S
7. In the same year, for reasons that are not entirely clear, the
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T Husband left Hong Kong and emigrated to Taiwan. From then on, the
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parties decided to live separate lives and they have never resumed B
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cohabitation.
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8. In 1989, the Wife instructed her solicitor to bring certain legal D

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documents to Taiwan for the Husband’s signature. Those documents
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included a Deed of Separation and a Deed of Assignment for the sale of

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the said property to the Wife’s mother at a consideration of $1,400,000. F

Both documents were signed by the Husband. The sale was completed in
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the same year and the title to the said property was conveyed to the mother
of the Wife. However, in the year of 1993, the Wife’s mother sold back the H
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said property to the Wife and the parties’ eldest daughter at a consideration
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of $1,500,000.
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9. From the year of 1990, the Husband has relocated to Shenzhen. He K

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also stayed at the said property whenever he came to Hong Kong.
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10. In 1992, the Wife started proceedings in the Family Court asking for M
M
a divorce based on the ground of 5 years separation. In 1995, the Wife
N
N obtained an order from the court to dispense with the service of the
Petition and subsequently, a decree nisi was granted on 25 August 1995 O
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which was later made absolute on 3 November 1995.
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11. In the year of 2000, the Wife and the eldest daughter took out Q
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proceedings in the Court of First Instance (HCA No. 7718 of 2000) against
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R the Husband and other persons who are in occupation claiming for vacant
possession of the said property and mesne profits. The Husband filed a S
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defence and counterclaim saying that the Deed of Assignment in 1989 was
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procured by false misrepresentation and asked it to be declared null and B

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void.
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12. The trial of the action was heard before Lam J on 18 August D
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2004. During trial, the Husband asked for amendments to the defence and
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counterclaim to include a prayer for a declaration that the beneficial

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interest in the said property is jointly owned by him and the Wife. In F

considering the said application, His Lordship was of the view that the
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proper course was for the Husband to apply for ancillary relief in the
matrimonial proceedings because of the wide powers of the court in the H
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adjustment of matrimonial properties. Therefore, the trial was adjourned so
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that the Husband can make an application in the Family Court for ancillary
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J relief. He also ordered that after the application for ancillary relief is
properly made, the whole matter should be transferred to the Court of First K
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Instance for hearing.
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13. By a Notice dated 26 August 2004, the Husband applied to M

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this court for leave to file a notice of application for ancillary relief. It
N
N seems that the Husband is under an apprehension that he is required to
obtain leave before he can make the application for ancillary relief in this O
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proceedings.
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Issues Q
Q

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R 14.I think there are 2 main issues here. They are:
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(1) As the Husband has never taken part in the
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T matrimonial proceedings, is it necessary for him to
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ask for leave from the court before he can file a B

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notice of application for ancillary relief?
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(2) If leave is required, should this court grant such D

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leave under the circumstances?
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Is leave necessary? F

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15. The statutory basis for the Husband’s application is Rule 68 of
the Matrimonial Causes Rules, Cap. 179, which is as follows: H
H

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“68. Application by petitioner or respondent for ancillary
relief J
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(1) Any application by a petitioner, or by a respondent spouse K

K who files an answer claiming relief, for-
(a) an order for maintenance pending suit;
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L (b) a periodical payments order;
(c) a secured periodical payments order;
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(d) a lump sum order; M
(e) a settlement of property order;
(f) a transfer of property order; N
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(g) a variation of settlement order;
shall be made in the petition or answer, as the case may be. O
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(2) Notwithstanding anything in paragraph (1), an application
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or answer may be made subsequently-
(a) by leave of the court, either by notice in Form 8 or Q
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at the trial; or
(b) where the parties are agreed upon the terms of the R
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proposed order, without leave by notice in Form 8.
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S (3) An application by a petitioner or respondent spouse for
ancillary relief, not being an application which is required to T
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be made in the petition or answer, shall be made by notice in B

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Form 8.”
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16. Rule 68(1) provides that if a respondent (i.e. the Husband in
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D this suit) has filed an answer in the suit, it is imperative for the respondent
to state his claim for ancillary relief in the answer. E
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F 17. If he shall fail to do so, then r 68(2) will come into play in that
the respondent will only be allowed to file a notice of application for G
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ancillary relief if :
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(a) he either obtains leave from the court to do so; or I

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(b)he has to get the consent of the other party.
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18. By the wordings of r 68(2), it assumes that an answer has
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already been filed by the respondent. I come to this conclusion because in

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the beginning of paragraph (2), it starts with “ Notwithstanding anything in M

paragraph (1),…” In other words, it is referring to the situation as stated in

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paragraph (1) which is a scenario where an answer has already been filed
by the respondent. From that analysis, for any other scenarios (which O
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would include the scenario where there is no answer filed), r 68(2) would
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no longer be applicable and the parties have to resort to paragraph (3),
which simply says that a party shall file the notice of application for Q
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ancillary relief in Form 8. No leave is said to be required from the court R
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under r 68(3).
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19. This conclusion is also supported by the observations made T

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by Purchas LJ in the case of Twiname v Twiname [1992] 1 FLR 29 when
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he commented on r 68 of the English Matrimonial Causes Rules 1977 B

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which are of very similar terms to our r 68 in Hong Kong. At p 36C, the
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C Honourable Lord Justice had this to say:
“ I now pass to the Matrimonial causes Rules 1977, and it is D
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necessary only to refer to r 68. Rule 68(1) provides:
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‘Any application by a petitioner or by a respondent who files
an answer claiming relief, for- F
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(a) an order for maintenance pending suit,
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shall be made in the petition or answer, as the case may be. H

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(2) Notwithstanding anything in paragraph (1), an application I

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for ancillary relief which should have been made in the
petition or answer may be made subsequently- J
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(a) by leave of the court, either by notice in Form 11 or at the K

K trial,…’
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L So that under r 68(2)(a) where the petitioner or the
respondent, who files an answer in an opposed matrimonial
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suit, has omitted to include in his prayer for ancillary relief, M
he requires the leave of the court to amend, and it is at this
stage that the court would have a discretion to grant leave or N
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withhold it and, in doing so, would clearly have regard, if
appropriate, to the delay which was inexcusable or inordinate. O
O But, as will appear from the judgment of Ormrod LJ in
Chatterjee v Chatterjee [1976] Fam 199, Matrimonial Causes
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P Rules 1977, r68(3) provides that could be described as an
anomaly:
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‘An application by a petitioner or respondent for
ancillary relief, not being an application which is R
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required to be made in the petition or answer, shall be
made by notice in Form 11.’ S
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So that a respondent, who has not filed an answer and B

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therefore, comes within r 68(2) may, uninhibited and without
leave, give notice of an application for such relief on Form 11. C
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It is now necessary to refer shortly again to Chatterjee v D

D Chatterjee (above). It is not necessary to rehearse the details,
but the issues related to the above powers to grant an order
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E for a lump sum payment. At p 207G Ormrod LJ said:

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‘…Unfortunately, the rule in its present form is a very F
inadequate protection to respondents and procures
unjustifiable anomalies between applicants of different G
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classes. It is purely procedural and formalistic; to secure
the right to apply for ancillary relief of all kinds, at any H
H time, it is only necessary to include appropriate words in
the pleadings, if any. No time limits are prescribed, so a
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I party, whose pleading was in order, is free to activate an
application at any time, whereas a party whose pleading
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J is defective requires leave to apply or to amend at all
times. Moreover, a party who allows the suit to go
through undefended is free of constraint at all times.’ “ K
K

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20. Although what Purchas LJ said in Twiname (supra) (and also
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M Ormrod LJ said in Chatterjee) are necessarily obiter because the issues in
those cases are not entirely the same, I am in total agreement with them in N
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the interpretation of r 68. I think the rationale is quite simple. The
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O requirement of the relevant section is to oblige the parties to inform the
other side that they are making applications for ancillary relief at the P
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earliest opportunity in the pleadings. If anyone shall fail to do so, he or she
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Q will have to give an explanation to the court and so he/she can only file a
subsequent notice for application with the leave of the court. But if a party R
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has not filed any pleading, there may be legitimate reasons for his/her
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S failure to do so. One obvious reason may be that he/she has never been

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served with the petition. That is exactly what happens in our present case. T

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Under those circumstances, that party should be allowed to file his B

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application for ancillary relief as of right.
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21. Based on the above reasons, my ruling on the first issue is that the D
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Husband is not required to seek leave from the court to file his notice of
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application for ancillary relief.
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Should Leave be Granted?
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22. My ruling in the preceding paragraphs should be able to dispose of H

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this application. But in case that I really have to decide on whether leave
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should be granted under the facts of this case, I am minded to grant such
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J leave to the Husband to file his notice of application for ancillary relief in
any event. K
K

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L 23. On the face of it, the Husband is rather late in making his
application for ancillary relief as the Decree Absolute was granted back in M
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1995. However, one should not lose sight of the fact that the Wife has
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N applied for and has successfully obtained an order to dispense with the
service of the petition on the Husband. Rightly or wrongly, the Husband O
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has never been notified of the divorce proceedings. I think it would be
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P unjust to deprive the Husband his right to apply for ancillary relief under
those circumstances. Of course, whether the Husband would succeed in Q
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getting the relief at the end of the day is dependent on entirely different
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R considerations. But based on the available facts in the present application, I
just can not say the intended application for ancillary relief is totally S
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without merits. Therefore, leave will be granted if it is really needed under
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T r 68(2) of the Matrimonial Causes Rules.
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Application to avoid the Deed of Separation B

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C 24. In the Notice of Application for Leave, it is also stated that the
Husband intends to apply for a declaration to avoid the Deed of Separation D
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dated 8 January 1989 and the financial arrangements contained therein.
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However, in his skeleton arguments, counsel for the Husband submitted

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that they were not asking this court to make a declaration to that effect as F

the matter will be canvassed at a later time, presumably in the Court of

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First Instance. Therefore, I will treat the Husband being content not to
pursue this particular matter for the moment and so there will not be any H
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order made in that regard.
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J
J Order

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25. Since I have ruled that there is no requirement for the
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L Husband to seek leave before he can file a notice of application for
ancillary relief, it is my view that this application should never have been M
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made in the first place. Therefore, the application for leave to file a notice
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N of application for ancillary relief be dismissed.

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Costs
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26. The usual rule is for costs to follow event. However, I note Q
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that not only the Husband is under the misapprehension that he needs to
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R seek leave before he could proceed to file a notice of application for
ancillary relief, the Wife’s position seems to be the same. Therefore, part S
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of the hearing was also wasted as the Wife proceeded to argue against the
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T application on that false premise. I think it is only fair for the Husband to
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bear part of the costs of this application. So I order the Husband to bear B
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half of the costs of this application which is to be taxed if not agreed. The
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C order will be in the form of an order nisi which will be made absolute after
the expiry of 14 days from the handing down of this ruling. D
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C. K. Chan
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Deputy District Judge
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R
R Mr. P. Yip instructed by Messrs. Hau, Lau, Li & Yeung for the Petitioner
Mr. A. Lam instructed by Messrs. Louis K.Y. Pau & Co. for the S
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Respondent
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