Lit Wing Yee v. Tang Cheuk Lun
Court of First Instance
High Court Action No 850 of 2016
Louis Chan J in Chambers
21 February, 16 March 2017

Civil procedure — stay — action for recovery of debt from spouse — wrong in principle to stay action pending determination of ancillary relief proceedings Family law — divorce — ancillary relief — Family Court had no power to order one party to discharge liabilities in contract, tort or trust outside ancillary relief to other party — Matrimonial Proceedings and Property Ordinance (Cap. 192) ss. 3, 4, 5, 6, 6A

P petitioned for divorce and applied for ancillary relief against her husband, D. P also brought the present action against D to recover an alleged debt of $1,844,891 with interest, relying on loan receipts signed by D (the ‘Action’). D’s application to stay the Action pending the determination of the ancillary relief application was refused. D appealed.

Held, dismissing the appeal, that:

  • Sections 3, 4, 5, 6 and 6A of the Matrimonial Proceedings and Property Ordinance (Cap. 192) empower the Family Court to award ancillary relief on a relevant petition, but not to order one party to the marriage to discharge to the other party liabilities in contract, tort or an unrelated trust. (See paras. 20, 27, 35.)
  • Similarly, the Family Court had no power to order a third party to transfer back assets to a party to the marriage who owned the beneficial interest therein or to order the third party to discharge liabilities in contract, tort or a trust outside ancillary relief. (See paras. 33–34.)
  • Thus, even if P sought and obtained a determination in the ancillary relief application that D owed her $1,844,891, this sum would only be added to the net financial resources of P’s assets and D’s liabilities. The Family Court had no power to order D to pay the debt to P as this was an issue of loan contracts between the parties, unrelated to ancillary relief. So if the Action were stayed, P would be unable to obtain a judgment to recover the debt from D and this would be unfair to P. It was therefore wrong in principle for D to seek a stay of the Action. (See paras. 36, 39.)

Appeal

This was an appeal by the defendant-husband against the order of Master Caroline Chow refusing to stay an action brought against him by the plaintiff-wife for the recovery of a debt pending the determination of her ancillary relief application. The facts are set out in the judgment.

Jurisdictions: 

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).