IN THE SUPREME COURT OF HONG KONG
ACTION NO. 18 OF 1983
Coram: Deputy Judge Nazareth, Q.C. in Chambers
Dates of hearing: 22nd and 31st May 1985
Date of delivery of judgment: 6th June 1985
1. These two summonses for discovery, one filed on 11th February 1985 by the petitioner and the other by the respondent on 18th February1985, were heard together. Both stemm from earlier summonses for discovery filed by each party which came before Power J. on 9thJanuary 1984, when they were adjourned by consent to the following day. On that day Power J. by consent made the following order”There will be orders in terms endorsed on counsel’s briefs.” Terms were in fact endorsed upon the brief to Mrs. Penlington, thepetitioner’s counsel, but not upon that of Mr. Stone who appeared for the respondent. In the event it has not been possible preciselyto determine or agree all the terms that should have been endorsed. Of particular concern is one item of those term i.e. the productionof bank statements from 1st January 1973 to 31st December 1983. Mrs. Penlington’s recollection, which is borne out by the recordof the agreed terms endorsed upon her brief, is that bank statements were to be provided by each party.
2. The text of her endorsement was sent to Mr. Stone shortly after the 10th January 1984 but for reasons into which I need not enter,it was not until about a year later that Mr. Stone, who has now withdrawn from these proceedings, and Mrs. Penlington were able tomeet to try and settle the agreed terms. Mrs. Penlington very fairly informed me from the Bar that Mr. Stone’s view was that thebank statements were to be provided subject to their availability. In deference to his seniority Mrs. Penlington included that qualificationin the text of a draft order which was submitted to the clerk to Power J. for approval. The clerk to Power J. declined to approvethe draft since it purported to detail the terms endorsed upon counsels’ briefs, which of course, was not the form of the order madeby Power J.
3. On the foregoing it seems to me that the only safe view that can be taken is that the two sides agreed only to produce bank statementssubject to their availability. Accordingly, subject to the matters that follow, I consider that the relevant order I should properlymake in these applications is for production of such bank statements as are in the parties’ hands, and for best endeavours to beused to procure the remainder.
4. In general terms the petitioner has been able to procure most of the bank statements she has been asked to produce. But she saysin her affirmation that she is “unwilling” to produce them until the rspondent produces the statements he is required to produce.It is not disputed that the petitioner is under order of this court to produce her bank statements, and her statement in her affirmationthat she is unwilling to comply, on the face of it verges on contempt of this Court. But Mr. Rodway submits that reciprocity of productionwas an implied term of the agreement between the two sides. I will accordingly regard the statement of the petitioner and similarstatements in her affirmation as unfortunately phrased and not as contumacy. Mr. Rodway also contrasted the professed inability ofthe respondent to procure his bank statements, including a statement of an account with a bank of which he is a director. Mr. Rodwaysubmits that, and the retaliatory and disproportionate counter requests for discovery attracted by each application made by the petitionerestablish a pattern of delay and obstruction by the respondent. I will only say that the suggested inability of the respondent toprocure some of his bank statements, some of which he appears to have had earlier in the proceedings, does cause me unease. Howeverif that be necessary the plaintiff is not without recourse. In the specific context that confronts me it is a matter that can, Ithink, be satisfactorily resolved by a best endeavours order which will meet any genuine inability to obtain statements. At the sametime an averment of inability to obtain the statements should, I think, be verified by affidavit, so as to enable it to be testedby cross-examination.
5. Mr. Rodway has proposed instead that production by the plaintiff be made conditional upon production by the respondent. That, hesubmits, will avoid the difficulty of exposing the respondent to committal if he is ordered to produce statements which he may inthe event be unable to obtain. That course does not commend itself to me. I would not wish to countenance the plaintiff’s seemingdefiance of the existing order to produce. In addition there does not seems to me to be any implied term in the party’s a agreementthat production was to be reciprocal. Above all, the purpose of discovery is to enable the cause to be disposed of fairly or to savecosts. What is proposed is wholly inconsistent with those objects and will enable either party who wishes to do so, whatever therelative merits, to obstruct production. I would accordingly order production of all bank statements already procured and best endeavoursto be used to produce the remainder.
6. That will dispose of the four outstanding items in the petitioner’s application and, subject to the matter of joint accounts, alsoof those items of the respondent’s application relating to bank statements.
7. Some of the bank statements sought by the respondent relate to accounts of the parties’ son, Peter, but quite properly in the circumstancesof this case, it has not been suggested that for that reason they should not be produced.
8. Other accounts are in the joint names of the petitioner and her mother. The petitioner in her affirmation sails she is not able toproduce certain deposit slips relating to those joint accounts because her mother will not produce them or give her consent to theirproduction. She adds that her mother may be prepared to do so if . the respondent produces certain statements. Mr. Rodway submitsthat as the deposit slips are the joint property of the petitioner and her mother, the latter not being a party to these proceedings,their production ought not to be ordered without the consent of the mother. In support he asks me to refer to the judgment of PowerJ. in this action on 24th February 1984, dealing with the issue of whether the respondent should be ordered to produce the accountsof a partnership of which he is a member. I have studied that judgment and on my reading, at P. 13, Power J. held that there wasno general power to order production of jointly owned documents where only one owner was a party, but that there was such a power,although narrowly confined, where the Court was satisfied that the party had access and that the objection to production has theappearance of a contrivance to evade or defeat the jurisdiction of the Court. In this case the manifestly close, rather I shouldsay, excellent, relationship between the petitioner and her mother, and the attempt to make the mother’s consent conditional uponthe respondent producing certain statements, makes it all too obvious that what we have here probably is a contrivance. However,I need say no more on joint ownership as the petitioner has disclosed that she is the beneficial owner of the joint accounts. Thereis accordingly, in my view no reason why the deposit slips should not be produced.
9. As to the other particulars and documents sought, I accept that the amounts the petitioner accumulated from monies given to her bythe respondent is relevant to the determination of the financial al provision ultimately to be made for the petitioner. That beingso, can it be said that the apportionment is to be made only upon consideration of what the parties presently own and not, for instance,of the very large sums of money that it is not disputed the respondent gave to the petitioner? In this context I was informed byMiss Leong for the respondent that the total of sums the petitioner admits she has in her possession is of the order of $40 million;Miss Leong’s statement was not disputed. However that may be, I think that the amounts of money paid to the petitioner and the disposalof those monies must in the circumstances be relevant. They, quite clearly, can have a bearing upon the financial provision ultimatelyto be made for the petitioner. The difficulty is how the discretionary power to order particulars should be exercised. In relationto monies partly used for household expenses it is common ground that under the consent order particulars were to be provided ingeneral terms. And so they were provided, in the most general terms. The respondent has returned to the charge by seeking greaterparticularity, I think excessive particularity in some respects. I do not think he is entitled to require the petitioner to makeguesses and clearly some of the information sought can only be guessed at. Some of the other information sought, for example, householdexpenses for a very large number of years could only be provided from records which none save the most exceptional housewife wouldmaintain. I would therefore decline to order particulars at which the plaintiff would have to guess, and also those which she couldnot reasonably he expected now to produce. As to the remainder, it should not be forgotten, which on behalf of the respondent itapparently has, that the particulars were only to be provided in general terms.
10. Proceeding then to production of the other documents and particulars sought in the respondent’s summons, the plaintiff says in referenceto the audited accounts of Winfair Investment Co. Ltd., that her shares are held in a nominee company and she believes she is thereforenot entitled to the accounts. That is no reason for failing to produce. I find no merit in her explanation and will waste no moretime on so unmeritorious a response. To avoid errors in the orders sought and hopefully limit latent difficulties, I will now indicateto counsel the terms of the orders I propose to make and hear them upon those and upon costs.