HCAL 1152/2022

[2024] HKCFI 2054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1152 OF 2022

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J U D G M E N T

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A. Introduction

1. As the Rolling Stones sang, you can’t always get what you want. But there is also often a difference between what you want and what you need. It seems to me that the real contest in this case centres on that difference.

2. That contest arises in the following circumstances:

(1) The Applicant married on 10 December 1981.

(2) The Applicant and her now ex-husband (“Husband”) were divorced by decree absolute made on 26 November 2009.

(3) The Applicant and the Husband had only one child, a son (“Son”).

(4) Prior to the divorce, the Applicant and the Husband made an oral agreement (“Agreement”) subsequently reduced into writing (“Memorandum”) – though perhaps not every term – and signed by both parties on 2 October 2009.

(5) The essence of the Agreement was that, in consideration of the Husband’s promise as to certain dealings with the former matrimonial home (“Matrimonial Home”), she would consent to the divorce and not make any claim for ancillary relief in the divorce proceedings.

(6) The key terms of the Agreement were that:

(a) notwithstanding the divorce, each of the Husband, the Applicant and the Sun would have the right to reside in the Matrimonial Home for life;

(b) the Husband would continue to make mortgage repayments until he had fully paid off the mortgage;

(c) upon full payment of the mortgage loan, the Husband would transfer the Matrimonial Home to the Son.

(7) The Applicant also argues that there were additional considerations/conditions – including that the Husband could not bring any other woman to live there (“No Other Woman Condition”) – though they were not all recorded in the Memorandum.

(8) The Applicant says that the Husband has acted in breach of the Agreement, including by bringing his new wife to live there, and by trying to evict the Son.

(9) The Applicant wished to commence legal proceedings to establish and confirm her rights under the Agreement, and incidentally the Son’s rights under the trust created by the Agreement.

(10) For that purpose, the Applicant applied for legal aid on 15 April 2021.

(11) The Interested Party, the Director of Legal Aid (“Director”), rejected that application on 28 July 2021.

(12) The Applicant appealed, and the legal aid appeal was heard by the Assistant Registrar/Master D To (“Master”) on 27 June 2022 and 28 July 2022.

(13) The Master dismissed the Applicant’s legal aid appeal on 28 July 2022 (“Decision”).

(14) The Applicant applies for judicial review of the Decision.

(15) The judicial review application was made by Form 86 dated 26 O