De Lasala v De Lasala

JurisdictionUK Non-devolved
Judgment Date1979
Date1979
Year1979
CourtPrivy Council
[PRIVY COUNCIL] ERNEST FERDINAND PEREZ DE LASALA APPELLANT AND HANNELORE DE LASALA RESPONDENT [ON APPEAL FROM THE COURT OF APPEAL OF HONG KONG] 1979 Feb. 6, 7, 8; April 4 Lord Diplock, Lord Fraser of Tullybelton and Lord Russell of Killowen

Husband and Wife - Financial provision - Agreement - Order of court - Deed of arrangement - Deed approved by court - Dismissal of wife's application for financial provision - Subsequent enlargement of court's powers - Whether jurisdiction to entertain wife's further application - Whether “subsisting maintenance agreement” - Whether final order variable for fraud or mistake - Matrimonial Proceedings and Property Ordinance (Laws of Hong Kong, 1972 rev., c. 192), ss. 4, 6, 15 - Privy Council - Judicial precedent - House of Lords decision - Hong Kong - Similar English legislation - How far House of Lords decision binding on Privy Council

The marriage of a husband and wife was dissolved in 1970. At that date in ordering one spouse to make financial provision for the other the Supreme Court had power by the Matrimonial Causes Ordinance (the English Matrimonial Causes Act 1965) to order periodical payments both secured and unsecured and a lump sum payment. The spouses made financial arrangements which were embodied in a “deed of arrangement” and approved by the court by a consent order of May 23, 1970. At the same time the court dismissed the wife's application for maintenance, a lump sum payment and secured provision. In 1972 sections 4 and 6 of the Matrimonial Proceedings and Property OrdinanceF1 (sections 23 (1) and 24 (1) of the English Matrimonial Causes Act 1973) superseded the relevant sections of the Matrimonial Causes Ordinance. In 1976 the wife applied to the court under sections 4 and 6 to set aside and vary the consent order and for orders for periodical payments, for maintenance, for a secured lump sum, for the transfer of property and, under section 15 of the Matrimonial Proceedings and Property Ordinance, for variation or revocation of the “deed of arrangement” as a subsisting maintenance agreement within section 14 (2) of the Ordinance. In her supporting affidavit the wife alleged that her consent to the deed of arrangement had been given under a mistake as to the husband's means induced by his misrepresentations. The court held that it had no jurisdiction to make the orders. In December 1976 on the wife's appeal the Court of Appeal reversed that decision. In November 1978 in Minton v. Minton [1979] 2 W.L.R. 31 the House of Lords decided that under section 23 (1) of the Matrimonial Causes Act 1973 the court had no jurisdiction to make from time to time a second or subsequent order for financial provision after an earlier application had been dismissed.

On the husband's appeal to the Judicial Committee: —

Held, allowing the appeal, (1) that in the case of recent legislation where the wording and the legislative history of a Hong Kong enactment were the same as that of its English equivalent the Judicial Committee would treat any decision of the House of Lords as to the interpretation of the legislation as if it were binding on the Hong Kong courts and that, accordingly, since the House of Lords had decided that section 23 (1) of the Matrimonial Causes Act 1973 gave the court no power to make a subsequent order after an earlier application had been dismissed, the Supreme Court of Hong Kong had no jurisdiction under sections 4 and 6 to make the orders applied for by the wife (post pp. 395F–G, 396A–C, 398F–H).

Minton v. Minton [1979] 2 W.L.R. 31, H.L.(E.) applied.

(2) That, although sections 4 and 6 of the Matrimonial Proceedings and Property Ordinance gave power to make a wider range of orders than had been possible when the consent order was made, the sections conferred no new jurisdiction on the court and, accordingly, the court had no power under the sections set aside or vary the once-for-all provision contained in the consent order (post, pp. 398H–399A, C–H).

(3) That where an arrangement between spouses had become the subject of a consent order the arrangement was no longer a “subsisting maintenance agreement” but a final order of the court and that, therefore, the Supreme Court had no jurisdiction under section 15 of the Matrimonial Proceedings and Property Ordinance to entertain the wife's application to vary the deed of arrangement (post, pp. 400H–401B).

(4) That, since the consent order was a final order of the Supreme Court it could not be challenged by the wife in the instant proceedings on the grounds of fraud or mistake and would require a fresh action brought for that purpose (post, p. 401D).

Decision of the Court of Appeal of Hong Kong varied.

The following cases are referred to in the judgment of their Lordships:

Australian Consolidated Press Ltd. v. Uren [1969] 1 A.C. 590; [1967] 3 W.L.R. 1338; [1967] 3 All E.R. 523, P.C.

L. v. L. [1962] P. 101; [1961] 3 W.L.R. 1182; [1961] 3 All E.R. 834, C.A.

Minton v. Minton [1979] 2 W.L.R. 31; [1979] 1 All E.R. 65, H.L.(E).

Robins v. National Trust Co. [1927] A.C. 515, P.C.

Rookes v. Barnard [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E.).

Trimble v. Hill (1879) 5 App.Cas. 342, P.C.

The following additional cases were cited in argument:

Barrell Enterprises, In re [1973] 1 W.L.R. 19; [1972] 2 All E.R. 631, C.A.

Brister v. Brister [1970] 1 W.L.R. 664; [1970] 1 All E.R. 913.

Chaterjee v. Chaterjee [1976] Fam. 199; [1976] 2 W.L.R. 397; [1976] 1 All E.R. 719, C.A.

Cheung Yuk-lin v. Hui Shiu-wing (No. 4) [1970] H.K.L.R. 119.

Coleman v. Coleman [1973] Fam. 10; [1972] 3 W.L.R. 681; [1972] 3 All E.R. 886.

Cooray v. The Queen [1953] A.C. 407; [1953] 2 W.L.R. 965, P.C.

Doherty v. Doherty [1976] Fam. 71; [1975] 3 W.L.R. 1; [1975] 2 All E.R. 635, C.A.

Elstein's Affairs, In re [1945] 1 All E.R. 272, C.A.

Guerrera v. Guerrera [1974] 1 W.L.R. 1542; [1974] 3 All E.R. 460, C.A.

Hill v. Fladgate [1910] 1 Ch. 489, C.A.

Hunt v. Allied Bakeries Ltd. [1956] 1 W.L.R. 1326; [1956] 3 All E.R. 513, C.A.

Jonesco v. Beard [1930] A.C. 298, H.L.(E.).

Kaprow (S.) & Co. Ltd. v. Maclelland & Co. Ltd. [1948] 1 K.B. 618; [1948] 1 All E.R. 264, C.A.

Mullins v. Howell (1879) 11 Ch.D. 763.

Powys v. Powys [1971] P. 340; [1971] 3 W.L.R. 154; [1971] 3 All E.R. 116.

Purcell v. F. C. Trigell Ltd. [1971] 1 Q.B. 358; [1970] 3 W.L.R. 884; [1970] 3 All E.R. 671, C.A.

Salter Rex & Co. v. Ghosh [1971] 2 Q.B. 597; [1971] 3 W.L.R. 31; [1971] 2 All E.R. 865, C.A.

Trippas v. Trippas [1973] Fam. 134; [1973] 2 W.L.R. 585; [1973] 2 All E.R. 1, C.A.

Wachtel v. Wachtel [1973] Fam. 72; [1973] 2 W.L.R. 366; [1973] 1 All E.R. 829, C.A.

Wales v. Wadham [1977] 1 W.L.R. 199; [1977] 2 All E.R. 125.

Wilson v. Wilson [1976] Fam. 142; [1975] 3 W.L.R. 537; [1975] 3 All E.R. 464, C.A.

APPEAL (No. 14 of 1977) by Ernest Ferdinand Perez de Lasala (the husband) from a judgment dated December 17, 1976, of the Court of Appeal of Hong Kong (Pickering J.A. and Leonard J., McMullin J. dissenting) allowing an appeal from an order dated January 23, 1976, of Huggins J. in the Supreme Court dismissing an application dated January 21, 1976, by Hannelore de Lasala (the wife) for orders that the husband should make financial provision for her and for the child of the family.

The marriage of husband and wife was dissolved in 1970. On May 23, 1970, Briggs J. made a consent order approving financial arrangements agreed between husband and wife and embodied in the “deed of arrangement” to which were annexed two trust deeds “A” and “B”. At the same time Briggs J. dismissed the wife's application for maintenance, lump sum payment and secured provision for herself and the child. By her application of January 21, 1976, the wife applied to the Supreme Court for (1) an order setting aside or varying the consent order made on May 23, 1970, whereby inter alia the wife's applications for maintenance, a lump sum payment and secured provision for the child of the family and for herself were dismissed; and (2) an order that the husband do pay to the wife such weekly or monthly sum in respect of periodical payments for her maintenance as the court thinks reasonable; and/or (3) an order that the husband do secure to the wife to the satisfaction of the court such monthly or weekly sum in respect of periodical payments as the court thinks reasonable; and/or (4) an order that the husband do pay to the wife such lump sum or sums as the court thinks reasonable; and/or (5) an order that the husband do pay to the wife or to such person as the court may specify a lump sum or sums as the court thinks reasonable for the benefit of the child of the family; and/or (6) an order that the husband do secure to the satisfaction of the court the payment of any lump sums and each of them as the court may order under (4) and (5) above; and/or (7) an order that the husband do make such provision or further provision for the maintenance of the child of the family as the court thinks reasonable and that he do secure the same to the satisfaction of the court; and/or (8) an order that the husband do transfer the property belonging to the husband in New South Wales, Australia, to the wife or to the child of the family or to such person for the benefit of the child alternatively to settle the same for the benefit of the wife and/or the child on such terms as the court may deem appropriate or satisfactory; and (9) an order that the husband transfer or settle such other property as the court may deem appropriate, and/or (10) such order varying or revoking the financial arrangements contained in the deed of arrangement made between the parties on May 22, 1970, and the two trust deeds annexed thereto and marked “trust deed A” and “trust deed B” being a subsisting maintenance agreement as may appear to the court to be just alternatively an order inserting into the deeds such financial arrangements for the benefit of the wife and/or the child of the family as may appear to the court to be just and (11)...

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