Chai v Peng & Ors [2017] EWHC 792 (Fam)

[2017] EWHC 792 (Fam)Case No FD13D 00747
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6th April 2017
Before
MR. JUSTICE BODEY
Between
PAULINE SIEW PHIN CHAIApplicantTAN SRI DR. KHOO KAY PENGRespondentsAND OTHERSRespondent
Transcript of the Stenograph and Shorthand Notes of Marten Walsh Cherer Ltd.,1 st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTelephone: 020 7067 2900 Fax: 020 7831 6864 DX: 410 LDEEmail: info@martenwalshcherer.comWebsite: www.martenwalshcherer.com
MR. RICHARD TODD QC and MR. NICHOLAS YATES (instructed by Vardags) for ApplicantMR. CHRISTOPHER WAGSTAFFE QC and MISS AMBER SHERIDAN (instructed by Shakespeare Martineau LLP) for 1 st Respondent, Tan Sri Dr. Khoo Kay PengMR. YASH BHEEROO (instructed by Ariff Rozhan & Co.) for 2 nd, 3rd and 4 th Respondents
APPROVED JUDGMENT

INTRODUCTORY

[1]This titanic litigation at last comes on for final hearing: Pauline Chai’s application for financial remedies against her former husband Dr. Khoo Kay Peng. For convenience, I will refer to them in this judgment as “the wife” and “the husband”. At hearings in March and May of 2014, Holman J ‘implored’ the parties to negotiate, saying “… it should be so easy to settle this case”. Six months later at the end of judgments on estoppel by foreign judgment, jurisdiction and forum conveniens, I said:
“… The combined costs [in this jurisdiction] alone are already about £2.7 million and I urge the parties with all the strength I can muster ….. to redouble their efforts to reach a financial accommodation. Whatever the precise extent of the husband’s wealth, there is enough in the kitty for it to be said with confidence that they would be hard pushed to spend it all in their lifetimes, even if they wanted to.”
I repeated the same sentiment at the end of one of several maintenance pending suit (“MPS”) and legal services provision order (“LSPO”) hearings in November 2016, when I said: “… There should be a settlement figure now which both parties could live with” and I urged them again to find a compromise solution.[2]Those words have fallen on stony ground. The husband’s formal open offer dated 15th November 2016 was of £15,000,000 as being a fair settlement on a ‘needs’ basis. The wife’s counter-offer by letter of 29th November 2016 was that she would accept £520,000,000 as being 50% of an estimated kitty of £1,040,000,000. It is fair to say that that aspirational estimation of the kitty by the wife was based on allegations by her in respect of the many and complex ways in which she believes the husband has ‘warehoused’ assets and failed to disclose the bulk of his wealth. However, in the interests of retaining this hearing and achieving a decision, she has accepted that she will not pursue the bulk of those allegations. Be that as it may, the chasm between the open offers of November 2016 reflects the polarised positions which the parties have taken up throughout these proceedings, not only in terms of their respective offers but also in respect of virtually every issue which has arisen: as to estoppel by foreign judgment; jurisdiction; forum conveniens; MPS; LSPO for the wife; the choice and instruction of experts; ‘freezing’ arrangements; enforcement; whether the husband should be debarred on the ‘Hadkinson’ basis, and so on. So this wasteful and extravagant litigation has continued over the last four years.[3]A quick run-down the agreed chronology, which itself runs to 45 pages, shows about 35 orders in this jurisdiction, in addition to which there have been numerous orders in Malaysia, where parallel proceedings have been taking place with similar energy and determination. Each party accuses the other of bad faith, dishonesty and tactical manoeuvring. The husband says that the wife has been over-zealous and greedy in her litigation approach, making wild assertions. The wife says that the husband has been obstructive and has failed to give full discovery, thus justifying her wide-angled and combative approach. Both sides have failed to comply with court orders when it has suited them, whilst expressing righteous indignation when the other party has done likewise.[4]With such a mutually combative and litigious approach costs have accrued accordingly. Although I have capped costs where possible, the court is not able to control how much parties choose to pay their lawyers. The wife’s costs of the financial remedy proceedings are £3.78m including VAT and the husband’s nearly £2.4m excluding VAT (which, not being resident here, he does not have to pay): total £6.18m. Adding to that the parties’ combined costs of the jurisdiction and forum proceedings (below) of £2.72m, the total costs bill is £8.9m, excluding the costs incurred in Malaysia. It is as well for both parties that, save for any problems of enforcement, finality can at last be achieved at this hearing.[5]The parties have been represented before me as follows: the wife by Mr. Todd QC and Mr. Yates; the husband by Mr. Wagstaffe QC and Miss Sheridan. Three companies which are parties (being companies indirectly owned by the husband) have been represented by Mr. Bheeroo. They have all put in helpful skeleton arguments and schedules, which they have supplemented in oral submissions. They have done their best to keep the temperature down in a case of great underlying acrimony and conflict. Both cross-examinations by leading counsel were skilfully performed and neither of them could have been more persuasive in advancing their respective clients’ wholly polarised cases. I have read a vast amount of information contained in four core bundles and now four Lever Arch files of ‘LiveNote’ transcripts. In addition, there are, I think, six Lever Arch files of appendices to the reports of Andrew Caldwell, the single joint expert (“SJE”) instructed to value the husband’s commercial and business ‘empire’. There are about 64 ‘library bundles’ from which documents have been elevated into ‘elevation bundles’ as the case has proceeded. I have been blessed with three Lever Arch files of authorities. I have taken oral evidence from the wife; from the parties’ adult daughter D (called by the wife); from the husband and from Mr. Caldwell.[6]I have already mentioned one respect in which the case had outgrown its time allocation for this hearing, namely, as regards the wife’s wish to pursue multiple complex and interwoven allegations over many years about the husband’s business affairs. But there are other respects too in which the hearing has had to be truncated, in the interests of being able to achieve the finality which both parties strongly want. It was therefore agreed between counsel that their estimated times for cross-examination, submissions and so on would be strictly adhered to and enforced and that many points would therefore have to be left unpursued. I warned at the beginning of the case (Transcript pages 35 to the top of page 38 and again at pages 347 and 348) that there would be an inevitable downside, in that the outcome might have to be rougher and readier and, in some respects, rather more summary than if enough time had been set up for the case, which I said was measurable in my view in many weeks. Both sides accepted that situation, which has indeed pertained.[7]A further consequence of the tsunami of information before me, coupled with the highly adversarial positions which the parties have adopted, is that it has become difficult to see the wood for the trees. I am conscious of having been drawn into disputes and areas where, if the parties’ approaches had been less tendentious, I would not have needed nor wanted to go. To try to keep reasonably focused, I need to be selective about the points which I deal with. I have, however, read and re-read everything (sometimes several times), including the extensive skeleton arguments. I have all the contentious points well in mind and, even if I do not mention them, they have helped me form my thinking.

BACKGROUND

[8]As I have said, there is before me a helpful and thorough agreed chronology, which I adopt. I will just highlight some key dates. Wherever I give references consisting just of numbers in brackets, they refer to the pages of the daily Livenote transcripts of the hearing.[9]The husband is aged 78, having been born in 1938 and the wife is 70, having been born in 1946. They are both by origin Malaysian and the husband remains of Malaysian domicile and citizenship. The wife now has Australian and Canadian citizenship. They were married in 1970 in Malaysia. At that time the wife moved into the husband’s property at 10 Ukay Heights, Ampang, Selangor, Malaysia, which he had bought before the marriage. They lived there together for the next 10 years, during which time their elder two sons, A and B, were born. They are now in their mid-40s.[10]In 1980, the parties decided for various reasons that the wife would move with A and B, then children under 10, to Australia. She did so whilst the husband continued to live and work in Malaysia, having at about that time been appointed Managing Director and Chief Executive of Malayan United Industries Berhad (“MUI”), of which he is now Chairman and Chief Executive. It has become an international conglomerate, listed on the Malaysian Bursa.[11]The parties’ three younger children, daughters C and D and a son E (all now in their 30s) were born when the wife was living in Australia and the wife brought them up there with visits from time to time by or to see the husband, when the family was reunited for a while.[12]In 1989, the parties took the decision that the wife and now five children would move to Canada. By this time the youngest two children were aged 6 and 3 respectively. She lived there with the children in a large family home, which is still in the husband’s name to date, at 1063, Gardenwood Court, Victoria, BC, Canada. The wife continued to bring the children up there, whilst the husband continued working out of Kuala Lumpur as his business interests expanded. The family continued to come together one way or the other for visits from time to time.[13]In 1995, a house was purchased in the UK at Wentworth Park. There is a paucity of evidence about this property, its ownership and how it was used. But from that time onwards the parties have always had the use of a property in this jurisdiction. In 1999, the husband became a director of Laura Ashley Holdings PLC. Three years later he became, in his words, the non-Executive Chairman of it, which he remains (although company documents refer to him simply as the Chairman: Laura Ashley interim report for 2017).[14]On 16th November 2000 a property known as the Rossway Estate in Hertfordshire was purchased for £6.75 million. That price is stated in the Proprietorship Register as having been paid on 26th July 2000. Controversy rages over this property and I shall need to revert to it. The proprietor is stated in the Register as at 2000 as being Central Point Group Limited (“Central Point”). The entire estate comprises a main house with a curtilage of some eight acres (“the main house”) surrounded by about 800 acres of land, which is farmed, and some 200 acres of woodland, which is managed. The precise number of acres is stated differently in different places, but this is unimportant. The parts of the estate other than the main house are run commercially by Central Point. It contains a secondary residence, Old Rossway, a large number of rented cottages and tenanted land and it makes a pre-tax net profit of around £180,000 per annum according to the latest accounts before me, being to 31st December 2013.[15]On 5th December 2001, according to Land Registry form TR1, Central Point transferred the main house at Rossway to another company, Dunross Properties Limited, thereby separating the main house from the commercial part of the estate. Those two companies between them remain today the legal owners of the Rossway Estate. A major issue is as to whether or not the beneficial interest in it is held by the husband. Both companies, Central Point and Dunross, are incorporated in the BVI and are owned 100% by a Hong Kong company, Norcross Limited (“Norcross”), which is itself owned 50% by KKP Holdings Sdn Bhd and 50% by Soo Lay Holdings Sdn Bhd (both Malaysian companies). Those two companies (“KKP” and “Soo Lay”) are owned 99.98% and 99.99% respectively by the husband. The wife owns the balance of 0.02% and 0.01% respectively. Effectively, therefore, the husband owns the companies which own the Rossway Estate. It is those three companies in the chain of ownership of Rossway (namely, Norcross, Central Point and Dunross) which are the respondents in these proceedings.[16]In 2008, the husband had a stroke in Kuala Lumpur. The wife left Canada to care for him. As his condition improved and he was able to attend to his business affairs again, she accompanied him on his various travels to different countries. Both parties agree that the marriage had been under tension for years, but it seems that the stroke brought them together to some extent. It was not until October 2012 when they were staying at Rossway that the separation occurred. They were due to return to Malaysia when the wife told the husband that she was feeling unwell and was going to stay on at Rossway. That is what happened. The husband returned to Malaysia and the parties did not live together again.[17]On 18th October 2012, the wife made her first contact with her present solicitors, Messrs. Vardags. On the 14th February 2013, she issued her first petition. On 18th February 2013, initially ex parte but continued inter partes by consent, the wife obtained non-molestation and occupation orders enabling her to live at the main house at Rossway. The husband, when in England, was enabled to use Old Rossway.[18]On 27th February 2013, the husband commenced divorce proceedings in Malaysia. From then on, vigorously contested proceedings took place in each jurisdiction until a decision of the Court of Appeal in this jurisdiction in December 2015, to which I will revert.[19]On 1st March 2013, the wife was removed as a director of Central Point and Dunross. By this time, she had applied for MPS. On 21st May 2013, a consent order was made that the husband was to pay her £1.84 million. Of that sum, £840,000 was allocated by the wife to her legal funding. The wife accepted and has accepted throughout, that all sums received by her as MPS and LSPO should be credited against her eventual final award at this hearing.[20]On 30th December 2013, the wife made her second application for MPS and for a LSPO. Orders were made by Holman J in her favour in March and May of 2014, the precise figures being now unimportant. He dismissed her first petition at her request and gave her leave to file a new petition.[21]On 7th May 2014, that new petition was filed. The asserted jurisdictional ground was the wife’s habitual residence for a period of one year, i.e. from May 2013 to May 2014. It was common ground that she had lived here from October 2012, so the issue was as to her state of mind and intentions. By this time, the Malaysian court had ruled (in December 2013) that it was the forum conveniens for dealing with the husband’s divorce proceedings and with the parties’ financial disputes. So the husband applied to this court for orders dismissing or staying the wife’s English petition. After a heavily contested hearing in October 2014, at which I heard eight witnesses, I made findings as follows:(a) that there was no res judicata or issue estoppel arising from the Malaysian court’s decision that it was the forum conveniens;(b) that the wife had established her case that she had been habitually resident in this jurisdiction for a year prior to the issue of her May 2014 petition; and(c) that the husband had not succeeded in his application for a stay of the English proceedings on the basis that Malaysia was the forum conveniens. By one of several consequential directions, I ordered that the husband should set out a “ballpark” description of his income and outgoings, so as to enable the court to conduct a MPS and LSPO hearing on 13th November 2012. This he did, getting it approved by his accountants Crowe Harwath. It showed a gross income for 2013 of £4.4 million and for the nine months from January to September 2014 a gross income of £3.9 million, which pro-rata’d, came to about £5.2 million per annum. There were various deductions of several hundred thousand pounds in each year, together with the husband’s budget of just over £1 million per annum, as per his Form E. But there appeared to remain a substantial surplus.[22]On 13th November 2014, Roberts J heard the wife’s MPS and LSPO application. She ordered the husband to pay MPS at the rate of £50,000 per month and a LSPO of £60,000 a month (a total of £1,320,000 per annum) both until the Financial Dispute Resolution hearing. This was on the basis that the husband would use his best endeavours to ensure that all the usual running costs of the Rossway Park Estate would continue to be met and would cause various medical and dental expenses to be paid via insurances. (This latter has produced much controversy).[23]The husband failed to pay in accordance with that order. As a result, on 19th December 2014, the wife made application for enforcement. On the same day, the Court of Appeal granted the husband permission to appeal my orders of 17th October 2014. The wife’s enforcement application had made only modest progress by the time of a ‘conditions’ hearing on 4th March 2015 in the Court of Appeal. On that day, McFarlane LJ imposed a condition on the husband that, to continue with his appeal, he must pay the then accrued arrears of £515,000. Nine days later, on 13th March 2015, the husband paid those arrears.[24]On 18th December 2015, following a hearing in October 2015, the Court of Appeal dismissed with costs the husband’s appeal against my estoppel, jurisdiction and ‘forum’ decisions of October 2014. On 6th January 2016, a decree nisi was pronounced by this court and was subsequently made absolute on 24th January 2017. By March 2016, the husband was again in arrears of MPS and LSP to the tune of £220,000. Further enforcement applications were made and the arrears were paid thereafter. Freezing injunction proceedings followed before me on two dates in April 2016. At the time, these were heavily contested and complex and involved the participation of another of the husband’s indirectly-owned companies (not one of the three represented at this hearing) represented by Leading Counsel. But those proceedings have now been overtaken by events.[25]By May 2016, the husband was in arrears again to the tune of £220,000. But he paid in June 2016, following further applications by the wife.[26]On 3rd August 2016, the wife issued a Particulars of Claim asserting that Rossway is held by Central Point and Dunross on a resulting trust for the husband; alternatively that it represents a post-nuptial settlement which can and should be varied in her favour. She and her legal team make no secret of the fact (indeed it is obvious) that this is because Rossway is the only asset within this jurisdiction. There are Laura Ashley shares here, but they are owned by companies which although ultimately owned by KKP and Soo Lay (and therefore by the husband) are incorporated in respectively Malaysia and the BVI. The wife’s Particulars of Claim goes on to assert further civil claims against the husband and his business empire based on contractual agreement, constructive trust, resulting trust and estoppel. These claims are based on representations allegedly made by the husband before and during the marriage that ‘everything I have or earn is ours’. Those civil proceedings are heavily defended by the husband and, through solicitors and Counsel, Mr Bheeroo, by the three company defendants, Central Point, Dunross, and their holding company, Norcross Limited (which, as I have said, is itself owned by KKP and Soo Lay and so ultimately by the husband).[27]On 5th October 2016, I made an order that the husband was to supply the SJE Mr. Caldwell with various outstanding documents and information. Not all of those documents and that information have been supplied to him. Nevertheless, on 17th October 2016, Mr. Caldwell filed and served a heavily caveated report on the ‘ballpark’ value of the husband’s business empire.[28]On 26th and 27th October 2016 in Macau, a private Financial Dispute Resolution hearing took place, which was unsuccessful.[29]On 16th and 17th November 2016 there was a contested MPS and LSPO hearing before me, as Roberts J’s order of November 2014 only went up to the Financial Dispute Resolution hearing. The thrust of the husband’s case in seeking orders staying or dismissing the wife’s application for ongoing interim support was to the effect that the wife had been channelling very large sums of her MPS to the adult children, particularly to D. I shall come back to this. However, I declined to interfere with the current arrangements for the wife’s interim support and continued them until this hearing.[30]By December 2016, the husband was in arrears under my order of November 2016 to the tune of £220,000. There was a heavily opposed enforcement hearing before me on 16th December 2016, but with an insufficient time estimate to enable it to be properly considered. Subsequently, at the Pre-trial Review hearing on 16th January 2017, I declined to hear an application by the husband for a production order against the United Kingdom Border Agency (“UKBA”) to do with the wife’s immigration status, unless and until he had ceased to be in breach of my orders of November 2016. On 26th January 2017, he paid up the arrears of by then £330,000.[31]The above summary Chronology is only the tip of the iceberg. There are numerous applications, hearings and squabbles which I have glossed over. I have also omitted all reference to the multiple parallel hearings in Malaysia.

THE HEADLINE ISSUES

[32]From the above background, the following headline issues among others emerge for determination, although I shall not deal with them in precisely this sequence.(i) Whether to take any account of Malaysian law, either because the wife has now been shown within these financial proceedings to have been a dishonest and manipulative ‘forum-shopper’ in 2014 (which the husband asserts and she denies) and/or because of the allegedly close connections of the case with Malaysia, where the courts were equally ready, willing and able to deal with the matter.(ii) What the expert evidence on Malaysian law suggests the outcome of financial proceedings there would have been.(iii) Whether the husband owns or controls a particular entity, which I shall call Fresh Approach Inc (BVI) (“Fresh Approach”), the ownership (or not) of which substantially affects the value of his assets, this being an issue which requires consideration of his credibility.(iv) A decision as to the value of the husband’s business interests and, factoring in that information, as to the size of the overall kitty.(v) Whether the appropriate approach is one of so-called ‘needs’ or ‘sharing’.(vi) If the appropriate approach is ‘sharing’, whether there is any reason to depart from the ‘yardstick of equality’ on the basis of the husband’s pre-acquired wealth and/or his claimed ‘special contribution’.(vii) Whether Rossway Main House and/or Estate are held on a resulting trust for the husband by the companies which own them.(viii) If not, whether the Rossway Main House and/or the Rossway Estate and the structure which owns them constitute a post-nuptial settlement. If so, whether and if so how it should be varied.(ix) Whether, as a matter of fact-finding, the wife has established on the facts her civil claims against the husband and the three respondent companies to be entitled to an equal interest in all the assets in the kitty.(x) Whether or not I should make orders where enforcement may prove impossible or difficult.(xi) The amount and nature of the wife’s award; the timing of it and how it is to be structured. (xii). Interim arrangements pending full payment.

THE ASSETS

[33]Thanks to the hard work of Counsel, I have been supplied with a Schedule of Assets (although it is common ground that it does not necessarily incorporate all the possible latent tax in the properties within it). There is only in effect only one disputed item, namely the value of the husband’s business empire. The items on the Schedule may be summarised under headings as follows.(i) First, there is ‘property’ in the sum of £26.8 million. This includes (a) the two component parts of the Rossway Estate, above (notionally extracted from the value of Central Point and Dunross) in the sum of £17.8 million net; (b) the property where the husband lives in Kuala Lumpur, 10 Ukay Heights, in the sum of £1.8 million (again notionally extracted from the company which owns it and which I will call Fresh Properties Sdn Bhd [“Fresh Properties”]); (c) the family’s home in Canada at 1063 Gardenwood Court (above) in the sum of £2.6 million; (d) four investment properties in Victoria, Canada, in the sums of between £300,000 and £400,000 each; and (e) five properties in Australia valued at between £260,000 and £541,000 each. All these properties (other than the Rossway Estate and 10 Ukay Heights, which are in corporate ownership, as above) are owned either solely by the husband or else jointly by him and the wife. As I say, the total value of those property assets is £26.8 million.(ii) Second, there are ‘funds’ in the total sum of £24.7 million, achieved by netting off the husband’s funds of £29.3 million against the wife’s liabilities (mostly a litigation loan) of £4.5 million. These figures will not correlate perfectly because I am ‘rounding’.(iii) Third, the husband has pensions in the sum of £970,000.(iv) Finally, there is the value of the husband’s business interests. These are held within a spider’s web of inter-related companies. They are set out in an Organogram attached to the husband’s Form E in December 2014 (the “Organogram”) although he went some way to disavowing this document in his evidence. The Organogram defies verbal description and only makes sense when considered diagrammatically. In summary, it contains 26 companies incorporated in respectively Malaysia, Hong Kong, BVI, and Great Britain. I do not understand it to be disputed that there are other companies which extend below the companies on the Organogram, for example, Banyan Tree Limited and Regent Corporation: but these other entities have not been explored during this hearing much or at all.[34]The values contended for in respect of the husband’s business ‘empire’ are as follows. The husband says that the appropriate figure to take is £66.4 million. This is obtained by taking Mr. Caldwell’s valuation of the ‘empire’(i) on the basis of the net asset value in the accounts at historical cost and(ii) on the basis that the husband does not own Fresh Approach. On those assumptions, Mr. Caldwell’s valuation is £86.5 million for the husband’s business interests. Extracting from that the value of the Rossway Estate at £18.2 million gross and the value of 10 Ukay Heights at £1.8 million gross, one gets the figure of £66.4 million for the business interests as put forward by the husband. Adding that to the overall sum for property (£26.8 million) the sum for ‘funds’ (£24.7 million) and the sum for pensions (£970,000), one reaches a total of £119 million, which is the total amount at which the husband says I should value the overall kitty.[35]The wife’s figure for the value of the husband’s business empire is £153.3 million. This is achieved by taking Mr. Caldwell’s valuation of it on two bases which are different from those taken by the husband:(i) that the valuations of the underlying assets within the Group (or at least a large number of its hotels and other real property in England and Malaysia) should be updated from their historical cost value in the company accounts to an estimate of their 2017 value; and(ii) that the husband does own Fresh Approach. On those two assumptions, Mr. Caldwell’s valuation of the business empire is £173.5 million. Extracting the Rossway Estate and Ukay Heights (as before) one is left with £153.3 million for the husband’s business interests. Adding to that the same figures as just mentioned for property, ‘funds’ and pensions, one reaches a total for the kitty of £205.8 million. That is the overall figure contended for by the wife. Thus, the difference between the parties in terms of the value of the kitty (£205.8 million as compared with £119 million) is £86.8 million. These figures, I should add, may be subject to some latent tax, which is still being ascertained. I shall revert to and determine this valuation issue below.

THE PARTIES’ CURRENT POSITIONS

[36]The wife seeks on a ‘sharing’ basis 50% of the amount at which she puts the kitty (£205.8m) that is to say a lump sum of approximately £103 million. She calculates it at £105.6 million, but the difference is immaterial.[37]The husband’s offer remains at £15 million. The wife has already received £5,980,000 by way of MPS and LSPOs. Therefore in accordance with her above concession, she would receive a further £9,020,000. The basis of the husband’s offer is that this is not a ‘sharing’ case, as Mr. Todd asserts, but is a ‘needs’ case. He says the wife’s reasonable needs can be met from a further payment of £9 million.

A PEN PICTURE OF THE PARTIES

[38]The wife, as I say, is aged 70, although, if I may say so, she does not look it. She left school after A-Levels and lived with her parents before getting married to the husband. I am not aware that she has ever worked in the sense of ‘doing a job’, although she was to take on the important role of home-making and bringing up the children. She is a very articulate lady and would, I think, have been quite feisty on occasions in her dealings with the husband. However, there do seem to be some circumstances in which the husband exercised a more than usual measure of control over her and when she paid him considerable deference. In this respect, I refer to my jurisdiction and forum conveniens Judgment dated 17th October 2014 at paragraph 39. I there record her e-mailing the housekeeper at Rossway to ask how much food she (the wife) was “… allowed to get” for herself and E. She enquired, “What can I eat and what am I not allowed to get?” The housekeeper’s reply set out a limit of £100 a week and identified certain foodstuffs, “… like chicken, salmon, broccoli …” , which were to be purchased “… in moderate quantity”. Even bearing this in mind though, I am of the view that the wife’s case is likely to have become exaggerated with the passage of time when she says (433) that the husband very tightly controlled every aspect of her life. That case does not sit easily with her case that he consulted her and asked her opinion about various matters, like home and business decisions.[39]The wife gave her evidence before me on both occasions with a sense of utter conviction. She did not show emotion and was, I suppose the word is, inscrutable. She was unfazed by anything which Mr. Wagstaffe asked her in a forceful cross-examination, defending her position in a strong and apparently credible way on each of the multiple points put to her. She appeared to believe completely everything she said in evidence.[40]Turning to the husband, he started his career in banking in the late 1950s, when he would have been about 20. He sets out between paragraphs 23 and 51 of his statement of 21st December 2016 [BC353] how, by the mid-1960s, he moved to a managerial role in banking and then became Head of Banking Operations with a large bank in Malaysia. He left in 1976 to start his own business developing property and began to build affordable houses in Malaysia, before being made a director of MUI in 1971. He explains how he turned MUI around from a small provincial enterprise into a ‘multi-million conglomerate’ owning a stake in Laura Ashley Holdings PLC and Corus Hotels, as well as other retail, hotel, food and financial service interests in Asia, Australia and the United States.[41]The husband has received many accolades in the course of his business career, which he sets out between paragraphs 56 and 62 of the same statement. Amongst other things, he is currently a trustee of Regent University, Virginia, USA and a Board member of North-West University. He is a Council Member of the Malaysian-British Council and has chaired the former Tourist Development Corporation of Malaysia. He is an Honorary Doctor of Letters from the Curtin University of Technology, Perth, Australia and an Honorary Doctor of Law at the North-West University, Seattle, USA. In 2011, he was made a Doctor of Philosophy in Business Management by the UCSI University Malaysia.[42]Most recently, in 2012, the husband was awarded the Lifetime Achievement Award for Leadership in Global Business by the Asian Strategy and Leadership Institute and in 2013 he received the Lifetime Achievement Award for Entrepreneurship by Enterprise Asia. In the same year he was given a medal by the United States Commission on International Religious Freedom and in February 2015 was awarded Chairman of the Year status by the Committee of the Brand Laureate Brand Leadership Awards. He carries the title ‘Tan Sri’, the equivalent of a Knighthood, which is only ever awarded to a maximum of 250 Malaysian citizens at any one time.[43]Thus, the husband is a very successful and much honoured and respected businessman. Inevitably, if this is a ‘sharing’ case, the question arises as to whether he has made a so-called ‘special contribution’.[44]Just as the wife, I found the husband difficult to evaluate as a witness. He comes over, if I may say so, as more like his chronological age than she does and there were some occasions during his evidence when I wondered whether he was losing the thread of the question, or of his answer. I have borne that possibility in mind when evaluating his evidence. English is, I suppose, not his first language, although from his commercial career and business and other achievements, including his university positions, he must have had to deal routinely in English with a complex range of topics throughout his working life. When questions were more benign and less probing, he came over as able to cope without apparent confusion, or asking for what were already quite simple questions to be simplified. He appears a fragile gentleman, physically, and was obviously finding the process very tiring. I note from his Form E dated December 2014 that:
“… In 2014, my health has taken a turn for the worse. I become easily exhausted with work and travel …”
. Although much more animated in his answers and demeanour than the wife, the husband was still what I would call inscrutable, in that none of the adversarial questioning appeared outwardly to faze him. He metaphorically ‘came out fighting’ and gave robust and spirited responses to all the questions which Mr. Todd asked of him. On many occasions, he was very obviously evasive, as a perusal of the Transcript of his evidence shows. I shall have to come back to that.[45]Both parties are ‘Born Again Christians’, which adds an additional dimension when deciding whether the person concerned has told the whole truth and nothing but the truth, since it may seem rather counter-intuitive that they would not do so. That said, there were in my judgment aspects of the evidence of each party which were unsatisfactory, as I shall have to mention further. RESOLUTION OF THE HEADLINE ISSUES Malaysian Law

RESOLUTION OF THE HEADLINE ISSUES

[46]The essential plank of Mr. Wagstaffe’s case is an assertion that the wife is and was a blatant and dishonest ‘forum-shopper’ who rigged her living arrangements prior to May 2014 (the date of the relevant petition) so as to be able falsely to achieve jurisdiction in this jurisdiction. By so doing, it is said that she has created the ability to obtain a much greater award than she would have achieved in Malaysia. Accordingly, relying on the maxim ex turpi causa non oritur actio, or by analogy with it, Mr. Wagstaffe submits that I should award the wife no more than that which she would have received in Malaysia. Otherwise, he says she would be benefitting from her own dishonesty; and ‘forum-shoppers’ in general would be encouraged. He is expressly not seeking to set aside my conclusions in October 2014 about jurisdiction; nor could he, since the husband’s appeal to the Court of Appeal was dismissed, as above. But he submits that this court’s role is now inquisitorial and that the wife’s ‘forum-shopping’ can and should be seen as part of “all the circumstances of the case” which have to be considered under S. 25 of the Matrimonial Causes Act 1973.[47]Mr. Todd strongly opposes this whole approach. He maintains that the only proper course, if the husband had a case, would be for him to apply out of time again to the Court of Appeal for permission to appeal against my October 2014 decision; or else to start proceedings for fraud. What Mr. Wagstaffe cannot do, says Mr. Todd, is to mount a collateral attack on my October 2014 decision, because that decision is either res judicata or else the subject of an issue estoppel. Initially, I have to say I was wholly with Mr Todd on this; but when I reflected on the apparent strength of some of the points which the husband wished to run, I decided, on balance, that to be sure of achieving a just result as between the parties, I should not stop him doing so, even though it would mean the wife being “vexed” twice regarding the same point.[48]It is necessary in the first place to consider the expert report of the SJE, Mr. Singh, on Malaysian law. On Mr. Wagstaffe’s case, this report shows that the Malaysian Court would treat this either as a ‘one-third’ case, or else as a ‘needs’ case. Hence his point that the wife would have received much less in Malaysia. Mr. Todd referred to this in opening (73 to 77) when he took me to and we looked at Mr Singh’s report. He made the point that the husband’s interpretation of the report is not accepted on behalf of the wife, since there seemed, according to Mr Todd, no reason why there could not be an asset split in Malaysia of say 51% to 49%. He said that Mr. Singh would need to say whether such a division would or would not be feasible (76, line 18).[49]Mr. Singh had been instructed on very prescribed terms and on the most basic of assumed facts to advise:(i) as to the likely approach of the Malaysian Court, particularly whether ‘sharing’ or ‘needs’;(ii) as to the likely award; and(iii) as to whether it would affect his opinion if the husband were worth £200 million, rather than a hypothetical £100 million. The first report of Mr. Singh was a little surprising, since he appeared to be answering only in the terms of maintenance, saying that a maximum of a one-third apportionment would most likely be awarded to meet the wife’s reasonable needs. This he said would be the case even if the husband were worth more than £200 million.[50]Following a supplemental question from the wife’s solicitors, Mr. Singh set out in his second report the relevant paragraphs of S.76 of the Law Reform (Marriage and Divorce) Act 1976, through which Mr. Todd took me in his opening. There it appears that a distinction is made by the Malaysian Court between assets acquired by the parties’ joint efforts and assets acquired by the sole efforts of one of the parties. Cutting out the unnecessary words, S 76(1) says: “The court shall have power, when granting a decree of divorce … to order the division between the parties of any assets acquired by them during the marriage by their joint efforts … (2) In exercising the power conferred by subsection (1), the court shall have regard to –(a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets;(b) any debts owing by either party which were contracted for their joint benefit;(c) the needs of the minor children, if any, of the marriage, and subject to those considerations, the court shall incline towards equality of division.

(b) the needs of the minor children, if any, of the marriage,

[51]Mr. Singh cited in his report from some Malaysian authorities, including from Choy Yoke Ying v. Yong Yoke Seng [2004] 8 CLJ 105, where the judge, having dealt with S.76, continued:
“It goes without saying that the discretion vested in a judge of the Family Court is to do ‘rough justice’ between the parties, as there is no measure which can fit all marriages. The Act provides a guideline as to the range of that discretion. S. 76(3) and (4) govern the situations where the wife’s contribution is indirect (looking after the home and the family).”
[52]It was having read Mr. Singh’s two reports in my pre-trial preparation and having heard Mr. Todd’s opening comments on Malaysian law, that I said at page 77 of the transcript:
“… I flag this up now so that Mr. Wagstaffe can think about it. I cannot see that restriction to ‘needs’ or to a one-third emerges from Mr. Singh’s reports. I cannot see that.”
That is where I was then and that is where I am now. I am with Mr. Todd that S.76(3) and (4) appear to give the Malaysian Court a discretion to do what it considers reasonable and fair, subject only that the party “… by whose effort the assets were required shall receive a greater proportion”. It may be that a 51/49 split, as per Mr. Todd’s example, is an extreme suggestion and very unlikely: but where there has been a very considerable contribution to the welfare of the family by a wife as home-maker and mother (as here) it might, for all I know, be seen as fair. Mr. Singh was not called to amplify his report, nor to correlate the maintenance approach of his first report with the statutory asset-division approach of his second report.[53]The short answer, therefore, to the issue of the wife’s alleged ‘forum-shopping’ (and of her not being enabled to gain any advantage thereby) is that I do not know reliably or at all whether there would in practice have been any or any significant differential as between the approach in Malaysia and the approach here. The fact that the parties fought tooth and nail about this in October 2014 is not to the point. It may just have been an example of their wishing to disagree about everything possible. Or they may, like the wife’s solicitor in a newspaper interview in August 2013, have been of the belief that the Malaysian Courts would be less generous. But at that stage there was no expert evidence on the point; and now that there is, it seems to support the idea of a ‘rough justice’ finding as to fairness, in respect of which the contributions by the non-asset-producing spouse are given due recognition. At its highest, the evidence of Malaysian law is ambiguous. Accordingly, on the evidence before me, I do not conclude that a judicial decision in Malaysia would necessarily have been to award the wife any or any significantly less than that which she stands to secure in this jurisdiction. If it had been established (contrary to my view above) that the Malaysian Court would have awarded significantly less than this court: (i) would I have been satisfied on the Husband’s case that in 2014 the wife was dishonestly “forum-shopping”?[54]I address this purely for completeness, in case I am wrong in my conclusion about Malaysian law; but not because I am in any doubt about that conclusion. Mr. Wagstaffe has put great store on the wife’s credibility. He brands her as dishonest and a liar. He relies on what I accept are the many inconsistencies in her evidence. Some of those inconsistencies are glaring and come exclusively from her own evidence, such that one would expect a manipulative and dishonest forum-shopper to have made sure they did not arise. A detailed 29-page Schedule in tabular form was put forward in on the husband’s behalf during Mr Wagstaffe’s final speech headed ‘Chronology of Inconsistencies’. It contains 111 unnumbered boxes. I have numbered each box. This produces, for example, box 35 at page 10 beside the date 9th January 2014 and box 72 on page 20 beside the date 20th January 2015.[55]I have studied this Schedule with great care. It is impossible to go through it piecemeal in this Judgment. As I said having skim-read it during Mr. Wagstaffe’s submissions, it contains “… some good points and some less good points”. On further and better perusal, I confirm that point of view. There is much repetition; some points of pure comment, for example box 66; and some items which do not show any significant inconsistency, for example box 65. As I read p169 of the Transcript, Box 67 (1st December 2014) is plain wrong. Many of the items are trivial: for example, box 68, about moneys borrowed by the wife from B’s friend; or, box 69, about whether it was £2,700 that the wife borrowed from D, or only £1,000.[56]There are also in the Schedule several ‘jury points’ regarding inconsistencies between the wife’s case in these proceedings and what she was telling a Canadian tax investigation in 2013. In that respect I have already held in terms in October 2014 that she was going along with the husband’s wishes. Having seen and heard both parties, I confirm that view today and that the husband was also himself at risk of being implicated within the Canadian tax investigation. That is because it was he who had transferred two tranches of 500,000 Canadian dollars to the wife’s bank account (for some reason best known to himself) when he wanted to buy a property or properties in Canada. I find it to be likely that they were complicit in trying to distance the wife from Canada, so as to eliminate or reduce any taxation risk, and that in the process she was essentially taking the lead from him, via the Canadian and Singapore lawyers instructed by him. I accept that she herself came up with, for example, the golf club in Malaysia as falsely connecting her to Malaysia (when she had not been there for 30 years). I do not, however, in the circumstances see her inconsistencies in this respect as a strong credibility point against her; certainly no more than the whole episode is a credibility point against the husband.[57]A further alleged example of the wife’s asserted dishonesty relates to her immigration status in this country. The husband says that, if her case on habitual residence in 2014 were right, then she is here illegally, because she has only a tourist visa. It is said that on coming and going she must have lied to the UKBA. She has not been able to get a Tier 1 Visa, because the husband has not been willing to advance her the necessary funds. There has now during this hearing been production of documents by the UKBA following a contested application. Such documents have, however, turned out not to assist on the question of whether the wife has ever actually misled the UKBA in any way when she has been coming and going. The matter rests there, with the wife’s assertion that she has never misled them and has always been allowed into the country. So there is no credibility point in it for the husband.[58]That said, the husband’s ‘Schedule of Inconsistencies’ does, as I say, make some very valid points. I accept, as asserted in boxes 1, 33 and 75, that the wife failed to mention in 35 statements or thereabouts in these and the Malaysian proceedings (those statements being made either by her or on her behalf by her solicitors) that the husband had promised, as she now says, that everything they owned would be held for their joint benefit. In many places, this is not surprising; but in some cases it might have been expected to have been mentioned. At box 13 of the husband’s Schedule it is correctly pointed out that in her Points of Claim, the wife pleads that she became aware of the involvement of Central Point and Dunross in the acquisition of Rossway about six to 12 months after the purchase was completed (i.e. in about 2001); whereas, in her statements of 18th February 2013 and 9th January 2014, she says that until her solicitors recently did searches she understood the property to have been solely owned by the husband. It is difficult, if not impossible, to reconcile these statements as to her state of knowledge about how Rossway was purchased. However, it is equally difficult to see what she would have been hoping to gain by being untruthful in the use of either version.[59]As to the wife saying (as she did in October 2014 and has repeated at this hearing) that her motivation for trying to establish jurisdiction in England was ‘not financial’, Mr. Wagstaffe submits that this is simply not credible. He is now able to rely on a statement of D, to the effect that in or about September 2012 she told the wife, her mother, that she thought it would be a 50/50 split. However, I do not find this to be probative of dishonesty on the wife’s behalf. The conversation with D happened at a time of high emotion for the wife, as I find, and whilst she accepts that she may have had such a discussion with D, she tells me apparently credibly that she does not recall it. There may have been many motivations coming together to cause her to want to divorce here, not least her belief (which I accept she holds) that the husband is a very powerful figure in Malaysia and her subjective fear (I do not suggest objectively justified) that she would not obtain a fair hearing or just outcome there. It would not be at all surprising if the hope of a larger award was playing a part in her motivation, contrary to what has said; but I am not persuaded, having seen and heard her, that it was the only motivation; and I do not consider that D’s evidence impacts significantly on this. In box 111 of the Schedule reference is made to the wife saying (378) “…I happened to be here in England and it was decided we would stay here and this was the place to file for divorce”. However, the context relates back to the row which the parties had in December 2012 and this evidence does not suffice alone or in combination to persuade me that the wife’s case about her habitual residence here from May 2103 onwards was a dishonest construct, as alleged.[60]The next point relied on for impugning the wife’s credibility is her channelling of MPS payments to the children. I accept that in her January 2014 statement, she said that she had spent £1 million of the moneys given her by the husband in May 2013 (above) on “living expenses for me and E”. That was inaccurate, as it was not all spent in that way. She failed to explain that she had also funded generous treats for various adult members of the family to Dubai, Hong Kong, Florida, Venice, Innsbruck, St. Vincent and Paris, on most of which she did not go herself. So I accept that her statement was misleading.[61]At paragraphs 8 to 12 of my Judgment on MPS and LSPO dated 17th November 2016, I set out the sums of money paid across from the wife’s MPS to the children of the family. I will not repeat the details here. Basically, analysis of her bank statements from 2013 by the husband’s team showed £1.2m going to the children out of MPS paid by the husband of £2.4 million: so, on the face of it, about 50%. Exhaustive schedules have now been produced by both sides. It was originally suggested that the wife had covertly and dishonestly “stockpiled” these moneys with D, who was shown to have received some £830,000 and who was alleged on behalf of the husband to have been in cahoots with the wife, her mother. However, on full investigation, that case is now effectively unsustainable. D produced a witness statement explaining how most of the money was accounted for, along with three lever arch files of her relevant bank statements and those of her husband. True she did not produce the statements on her business bank account, which she should have done; but she told me she had received advice that this was not necessary. She did produce those business statements overnight so that the hearing could continue. I accept what D told me in evidence. In spite of the fact that she has shown strongly negative views towards her father and has been very supportive of her mother, she was clearly a witness of truth. It was evident that she was and is not holding money for the wife, and Mr. Wagstaffe rightly did not pursue the previous allegations that she is or was. The moneys which led to the “hoarding” argument have either been spent by way of payments by D on behalf of the wife and for her, the wife’s, benefit (a good deal of it on security), or else have been otherwise explained, save only as to about £60,000 (according to the husband) or about £18,000 (according to the wife). I made it clear – and it is accepted – that it is not proportionate to continue battling over this very time-consuming issue.[62]On this point about channelling MPS to the children, therefore, one is left only with a credibility point against the wife and I have already accepted that her answer about spending £1 million in 2013 on expenses for herself and E was a misrepresentation because it was incomplete. Similarly, her representation of relative poverty to Roberts J in November 2011 was not credible in the light of the income arrangements made for her and of the sums gifted to the children. It should be noted, though, that the wife did say in her Form E in December 2014:
“… I have previously contributed to C’s training as a veterinary nurse as well as supporting her financially during her studies. I hope to be able to resume this support shortly. I also provide financial support to E and A on a regular basis and I pay our daughter, D’s rent on her London apartment in order to provide a safe and welcoming place for E …”
. So she was flagging up her wish to support and expectation of supporting the children. She was corroborated in this by D, who described the wife as a generous mother, always willing to support the children financially whenever they needed it, right from their school days. Hence, in the last 18 months or so, D has received a benefit of about £100,000 to £150,000 from the wife as ‘start-up’ capital for her business (whether by gift or by ‘soft’ loan is not greatly relevant) and is having the rent for herself and her husband paid by the wife, their flat being a useful pied-a-terre for the wife and E when in London.[63]On one view, it is entirely up to the payee to decide how to spend her maintenance. The court does not ‘police’ a payee’s preference to give an adult child a holiday, rather than buy costly shoes or an expensive handbag. On the other hand, I am of the view that the duty of full and frank disclosure did require the wife to say how she was spending the money, at least when applying for increases of MPS, as she was certainly doing on occasions. It would certainly have been sensible to do so, even though it might not have had much influence on quantum, because it would have avoided the expensive investigation which has had to take place to establish that a substantial amount of the moneys diverted to D were spent on her (the wife’s) behalf. It is certainly the case that, by August 2014, the husband was being provided with bank statements by the wife and that these, as she said in evidence, showed to a large extent what she was doing with the money. Moreover, the wife’s failure to mention that she was spending quite a bit of her MPS on the children is mitigated by her concession from the outset that all MPS and LSPO payments were to be set against her final award. It seems very likely that, in her mind, she was merely spending her own money as she wished to spend it.[64]Boxes 19 and 22 of the Schedule of Inconsistencies refer to an incident of domestic violence said by the wife to have occurred on Boxing Day 2012. The point is made in the Schedule that it is not included in her statement supporting her application for an injunction in February 2013. I accept that it is a surprising omission. However, contrary to the manner in which the wife was cross-examined by Mr. Wagstaffe on instructions, the husband did accept that there had been an incident on Boxing Day 2012, when he was trying to get the wife’s iPad off her, physically, so as to be able to access it. I am confident that he (the husband) minimised the incident and that the wife maximised it. I do not accept that he was holding her and struggling with her for 15 minutes. But on the other hand, it is clear that the incident was not an invention of the wife’s, as was first suggested her.[65]In box 25 (8th April 2013) attention is drawn to the fact that in a statement of 8th April 2013, the wife stated:
“… We met in Malaysia and began our relationship in around August 1970. We cohabited in the home we purchased together in Kuala Lumpur …”
The husband’s complaint about this is justified, since it was untrue. He had owned 10 Ukay Heights from before the parties met and the wife agreed, in cross-examination by Mr. Wagstaffe, that until she got married, she had continued to live with her parents. Quite what benefit the wife might, however, have been seeking to achieve by this inaccuracy about events some 40 years ago, it is difficult to fathom.[66]Last, as regards the husband’s case that the wife is nothing but a dishonest ‘forum-shopper’, is the point about the amount of time she has spent in England. It is right to say that there was a period, between 1st September 2012 and 31st August 2014 (the run-up to the jurisdiction hearing), during which the wife spent almost all her time in this country. Then, in the two years between 17th October 2014 (my judgment on jurisdiction) and 16th October 2016, the wife spent significantly less time here, namely about 434 days. These statistics are taken from a graph in Mr. Wagstaffe and Miss Sheridan’s Skeleton Argument. The wife explains this decrease in time here by reference to her having been largely in Canada when not here, although there has not been a precise investigation into her movements and other countries may well have been involved. She expresses great concern for A, who has Tourette’s syndrome, and who still lives at the former family home in Canada. She says he has suffered from deep depression after a disagreement with the husband. She maintains that she has for ages felt intimidated at Rossway in various ways which she, for her part, would trace back to the husband, although this was rightly not investigated. Hence, she says she has spent less time here. Be that as it may, Mr. Wagstaffe submits that the graph to which I have referred is the ‘graph of a blatant forum-shopper’.[67]Pulling the threads together, there is clearly force in the points about the wife’s credibility and reliability which I have singled out above. I do not consider that she has been 100% frank throughout in everything she has said and, in my view, she has a tendency to exaggerate. On the other hand, I have had many days now to observe her in the witness box. As on the last occasion (paragraphs 7 and 16 of my ‘Forum’ Judgment of October 2014, regarding her claim to jurisdiction in her February 2013 petition and her assertion of a joint agreement to move to Rossway in 2009), I am reasonably sure that she has some facility to come to believe, or imagine, that what actually happened is what she has now come to think happened; or, to put it another way, that the truth is that which she would like it to be. I remain satisfied on the balance of probabilities, as I was in October 2014, that she had been habitually resident here for a period in excess of one year by May 2014, the date of issue of her second petition. Her independent supporting evidence to that effect (albeit based largely on impressions formed of her and on things said by her) was credible and strong. Those several witnesses whom I heard and saw were decent church-going people, who did not, in my judgement, come to court to lie in order to give the wife a false case. The many inconsistencies, which I accept there are, in her evidence do not, individually, nor cumulatively, persuade me that it would be right to re-open that which was judicially determined in October 2014 (and, again, by the Court of Appeal in December 2015) whether(a) by the exercise of a discretion to revisit the subject-matter of an issue estoppel (R Mandic Bozic v. British Association for Counselling and Psychotherapy, [2016] EWHC 3134 per Mostyn J) or(b) as being part of “all the circumstances of the case” under S.25 of the Act. If it had been established (contrary to my view above) that the Malaysian court would have awarded significantly less than this court: (ii) should I take a “sideways glance” at the law of Malaysia when deciding the wife’s claims?[68]There is a thread of cases, which I referred to in paragraphs 36 to 47 of my judgment at the first appointment, on 11th February 2016, about “a sideways look” at a foreign jurisdiction when a case has connections with that jurisdiction. I shall not repeat them here. The law now is as per Radmacher v. Granatino [2010] 2 FLR 1900, where Lord Phillips said:
“… In England, when the court exercises its jurisdiction to make an order for financial relief, … it will normally apply English law, irrespective of the domicile of the parties, or any foreign connection …”
That was repeated and emphasised by Moor J in Z v. Z [2012] 1 FLR 1100. Mr. Wagstaffe argues attractively, at paragraphs 32 to 41 of his Skeleton Argument, dated 3rd March 2017, by analogy with Agbaje v. Akinnoye-Agbaje [2010] UKSC 13, that if the connections with England are not strong, then the English court should look at the law and approach in the jurisdiction where they are strong. In support of that argument, he refers to paragraph 77 of my October 2014 judgment (where I said that the connecting factors panned out fairly equally, with a small bias in the wife’s favour) and he sets out, at paragraph 37 of his Skeleton Argument, why he says the connections with Malaysia are strong. I do not, however, accept that Agbaje adds anything significant to this point. It turned on Part 3 of the Matrimonial and Family Proceedings Act 1984, whereas this is not a Part 3 case. I can see that the word “normally” in Radmacher may admit of the possibility of some very exceptional case, where the connections with this jurisdiction (although sufficient to found jurisdiction) are otherwise very much weaker than both parties’ connections with another jurisdiction. There I can see that a “sideways look” might be appropriate, as part of “all the circumstances”, when the court is trying to produce fairness in this jurisdiction. Even then, though, the correlation of two perhaps very differing and inconsistent regimes could prove highly problematic. Here, however, the point does not arise, in my judgement, because whilst the husband’s connections are all with Malaysia, the wife’s are not meaningfully with Malaysia at all. She cut away from that country in 1980 and has not lived there since, except when tending to the husband after his stroke in 2008. Her home country became Australia, in 1980, and then Canada from 1989 onwards until she came here. From her point of view, there is no justification to take a sideways look at Malaysian law. It is, therefore, my conclusion that I should not do so.

The appropriate approach to calculating the wife’s award

[69]As I have said, the husband maintains that this is a ‘needs’ case. The wife maintains that it is a ‘sharing’ case. The differing outcomes produced by the two approaches would be substantial. Given that I am not concerning myself with a ‘sideways look’ at Malaysian law, and given that this is a 42-year marriage with five children, this is plainly a ‘sharing’ case. This is a point which I flagged up as far as I properly could at that stage at paragraph 23 of my Judgment of 17th November 2016.

Are there reasons to depart from an approach of equality: (i) ‘Special Contribution’?

[70]It is beyond doubt that the husband has been a hugely successful entrepreneur and businessman. Since 1976 (six years into the marriage) he has managed to build up a complex and symbiotic web of entities now worth, on his case, £66 million, and on the wife’s case, £153 million (in each case excluding Rossway and 10 Ukay Heights). The accolades set out above are testament to his various achievements. However, as I said in Lambert v. Lambert [2003] 1 FLR 139 (approved in Miller v. McFarlane [2006] 1 FLR 1186 at paragraph 68): ‘“... those characteristics or circumstances clearly have to be of a wholly exceptional nature, such that it would very obviously be inconsistent with the objective of achieving fairness (i.e. it would create an unfair outcome) for them to be ignored.’”[71]I am aware that the judgment in Gray v. Work [2015] EWHC 834 (Fam) on special contribution is pending in the Court of Appeal. However, both parties have asked me not to delay this judgment waiting for it to be handed down. It is clear from reading the husband’s statements that he had the foresight to see how to make the most of the fact that Malaysia was moving forward from being an economy based, essentially, on the country’s natural resources, to being the modern, thrusting business economy which it has become and is now. He was in the right place at the right time and he astutely made the most of it through his business acumen and hard work. In cross-examination by Mr. Todd (859) however, he accepted that he has never described himself as a ‘genius’. He agreed that he had not come up with any particular invention, nor done anything particularly innovative in the commercial sphere; but that he had expanded the markets within which, for example, Laura Ashley trades. He accepted that this would have happened “… as a normal development of a multi-national company”. It must, I think, usually follow that the harder the entrepreneur breadwinner had to work at his business, the more the responsibility of childcare and domestic infrastructure would have fallen to the home-making wife. That is particularly so here, where one of the children has Tourette’s syndrome and the other is on the autistic spectrum. In the past, the husband has minimised these conditions of the two children concerned, accusing the wife of exploiting E to bolster her case to be in England. But, as I recorded in my October 2014 Judgment, the seriousness of E’s condition was established by his consultant psychiatrist, Dr. McPhillips. His report, dated 9th June 2014, describes E’s syndrome as ‘moderately severe’ and as having existed since E was 15. Dr. McPhillips did not think that E would ever be able to obtain non-sheltered employment in the outside world, nor live independently.[72]Accordingly, when I set the husband’s substantial contribution as breadwinner against the wife’s substantial contribution in the home and in caring for the children (much if it on her own, on different continents from the husband), I conclude that there is no room here for a reduction from equality based on any differential between the parties’ respective contributions to the marriage.

Are there reasons to depart from equality: (ii) the husband’s pre-marriage wealth?

[73]The husband maintains that his pre-acquired wealth calls for a departure in his favour from 50/50. He owned 10 Ukay Heights before the marriage, which the wife has said she thinks was worth about £120,000. He also had some land in Malaysia and some shares in MUI. So far as 10 Ukay Heights is concerned, it became the matrimonial home, after the marriage, for the next nine years. It is generally accepted that the matrimonial home usually becomes so much a part of the shared family economy as to be swallowed up in the concept of ‘matrimonial property’. There is no reason to depart from that approach here. As to the remainder of the husband’s pre-marriage wealth, it is unquantified and there is no evidence as to what happened to it. It can only sensibly be assumed that it became mingled with the general family finances. It is 42 years ago, and a drop in the ocean when compared with the assets now available, on whichever party’s view of the value of the husband’s business empire is right. I am not persuaded that it should be taken into account as reducing what would otherwise be the wife’s share.

Has the husband disclosed all his assets: Fresh Approach?

[74]The wife has set out her stall in several repetitive statements and, ultimately, in a fully-argued letter from her solicitors, to the husband’s solicitors, dated 12th December 2016, to the effect that the husband has been guilty of multiple failures to disclose complex transactions and of secreting assets over many years. Large numbers of entities have been named and put in the dock by the wife as being vehicles behind which, often through symbiotic arrangements and complex inter-related transactions, the husband has misled her, the court and the authorities. However, as I have said, she has let all that go in the interests of obtaining an outcome at this hearing; and there are sound reasons for her doing so, given the husband’s age and the fact that he is not domiciled in this jurisdiction.[75]The only entity upon which the spotlight remains is Fresh Approach, incorporated in the BVI. The wife says that it belongs to the husband, or at least that he indirectly controls it through nominee shareholders. The husband strongly denies this. It matters, because Fresh Approach owns xx% of the main company, MUI. The other companies which have shares in MUI all relate back to KKP and Soo Lay and, thus, to the husband. They are Cherubim Investment (HK) Limited, which owns 10.16% of MUI; Norcross Limited (Hong Kong SAR), which owns 10.24% of MUI; Bonham Industries Limited (BVI), which owns 14.04% of MUI; KKP Enterprises (as distinct from Holdings), which owns 10.38% of MUI; and Pan Malaysia Industries Bhd (Malaysia), which, after a controversial transaction last year, now owns 2.85% of MUI. Not all these proportions correlate precisely with the Organogram, but they are near enough.[76]The total of those interests (excluding Fresh Approach) is 47.67%, i.e. under 50% of MUI. However, Fresh Approach would add xx%, such that if it belongs to the husband directly or indirectly, then he would (indirectly, through companies) own yy% of MUI, being a sizable majority of the company, although less than 75%. MUI, in turn, has a 33.64% indirect share in Laura Ashley Holdings PLC and it also owns Corus Hotels Limited (Great Britain) through two subsidiaries which it wholly owns. The remaining shares in MUI are owned by multiple investors, small and large, since it is quoted on the Malaysian Bursa. The percentages of ownership by the companies indirectly owned by the husband is also such that, if he can ensure that Fresh Approach abstains from voting at any meeting, then his other companies (47.67%) would be bound to succeed on any motion, being greater than all the other shareholdings combined. Thus, the ownership of Fresh Approach is very significant in terms of the true value of the husband’s business empire.[77]What is the evidence for saying that Fresh Approach belongs directly or indirectly to the husband? The first port of call is his Form E. Although there is no reference to Fresh Approach in the body of the document, the Organogram attached to it headed “Tan Sri Dato Dr. Khoo Kay Peng [the husband] Private Companies Shareholding Structure as at 31st October 2014” shows Fresh Approach halfway down on the left, with a dotted line joining it to MUI, alongside the figure xx%. This has raised questions of interpretation as to which there is no clear answer.[78]Before I come to that, however, I need to say a word about the husband’s evidence regarding his Form E. Unfortunately, it transpires that his solicitors filed and served only an unsigned copy of it and, seemingly, it was never signed by the him. This led to a whole series of questions and answers, commencing at 677 of the transcript, whereby Mr. Todd was trying to get the husband to confirm that the Form E actually filed (unsigned) was an accurate representation of his, the husband’s, finances. The gist of the husband’s answers was that, if he had not signed it, he could not confirm its truth. He said he would have to read it all through, which would have taken up a great deal of time allocated to Mr. Todd for his cross-examination. The skirmishing ran on until page 686, when Mr. Todd drew the husband’s attention to a letter from the partner of the husband’s solicitors, Mr. Breakwell, dated 12th December 2014, to the wife’s solicitors, which reads:
“… I flew to Malaysia and spent days there identifying relevant documents which I have personally carried to England … I have spent most of my time since returning to England working tirelessly on putting the papers into good order. … I can hopefully reassure you and your client that [the husband] has fully co-operated and has made both himself and his team freely available in an attempt to very much assist the completing of a helpful and clear Form E.”
The questions and answers continued in cross-examination until reference was made by Mr. Todd to a further letter from Mr. Breakwell, dated 18th December 2014 accompanying service of the Form E, saying:
“… We enclose a final and approved copy of our client’s Form E together with attachments …”
[emphasis added]. But the husband continued to say, in answer to Mr. Todd’s questions, that as he had not signed the Form E, he would have to study it and “… go through whether I approved this”. That is where the status of his unsigned Form E remains.[79]The Organogram, to which I will revert, was not the only document mentioning Fresh Approach which was attached the husband’s Form E. There was also attached an index to four bundles of annexures. On the third page, under the heading “Other Companies”, appears “Fresh Approach”, with reference to pages 1533 and 1534 of the bundle of annexures (now Bundle 16: 1673 and 1674). Those pages comprise a ‘Certificate of Incumbency’ relating to the Fresh Approach, dated 15th September 2014, prepared by a Corporate Services Agency in the BVI. It identifies the incorporation date. It records the directors, one of whom is the husband’s nephew. He (the husband’s nephew) is also, incidentally, a director of Fresh Properties, which owns the husband’s home at 10 Ukay Heights. The shareholder of the 2 shares in Fresh Approach is named in the Certificate of Incumbency as K Nominees Sdn Bhd. The husband denied any knowledge of who they are. He denied any knowledge (698) of why this document was put into evidence in the case at all.[80]When asked (704) the name of the company (Fresh Properties), which owns 10 Ukay Heights, the husband fenced with Mr. Todd, although the question was straightforward. He appeared not to want to confront the similarity of the names. He denied (676 to 677) any connection whatsoever with the Fresh Approach at any time, although later in his evidence (748) he was able to say he knew that a particular individual was not involved with Fresh Approach “… because I know Fresh Approach”. He was evasive in respect of Mr. Todd’s questions (718 and 719) about who on the Board of MUI represents the interests of such a large shareholder as Fresh Approach. He denied Mr. Todd’s suggestion that it is he, himself, who exercises that control. Although it is his case that he is the Director of MUI who represents its driving force, he denied knowing who owns Fresh Approach, even though (as above) it owns more shares than any of the other individual companies indirectly owned by him which own shares in MUI.[81]Reverting to the Organogram, it is evident that Fresh Approach is distinguished in three ways from all the other companies there set out: by the fact that it is typed in red, not black; by the fact that it is joined to MUI by a dotted line, not an unbroken line; and by the fact that there is no entity above it. Why has whoever drafted this Organogram made these distinctions? Mr. Caldwell said (915 and 916) that quite often, and especially where there is an ‘opaque entity’ involved, it may demonstrate that there may be some interest being less than outright ownership. He was not asked to give an opinion about the other two differences of presentation of Fresh Approach on the Organogram. It is difficult, without hearing from the draftsman, to interpret exactly why he or she included Fresh Approach in the Organogram in precisely the way it appears; but there it is on the face of a document purporting to set out the husband’s “private companies’ shareholding structure”. The husband told me at one point in his cross examination (711) that the Organogram was prepared by a ‘junior officer’; but this does not sit easily with his later evidence in re-examination (875), nor with the wording of his draft Form E (B:42), where he says:
“In completing this Form E I have taken advice and have relied on Dr. Damien Lim, my lawyers and I have asked Crowe Harwath, accountants, to verify the document.”
He described the Organogram in the same paragraph as giving a bird’s eye view of his private companies’ shareholding structure.[82]At page 721 of the transcripts, the husband stated in cross-examination that:
“It [Fresh Approach] is part of the whole MUI Group”
. He said this twice at this point, although querying it later. Subsequently, asked in re-examination to explain what he had meant by Fresh Approach being ‘part of the whole [MUI] group’, he said (879): “It means they are connected. Either they sit on the Board of standard [?] companies, or what, but they are known”. [sic] [Question mark added]. He repeated: “… I know them”, and that: “…they are people of reputation in the town” (which does not sit easily with his earlier expressed ignorance of any details about Fresh Approach in his answers to Mr Todd at 677). Quite what the husband meant by these exchanges is not completely obvious. However, it is difficult, if not impossible, to see what he could have meant if the only role played by Fresh Approach in MUI is that whoever owns the shares (being wholly disconnected from the husband and from the other companies on the Organogram) merely has an independent free-standing interest of xx% in M.U.I., with no other connection or link with MUI.[83]Where else may I look for help on deciding this important issue about whether or not the husband owns Fresh Approach? The answer is in other respects where the husband’s evidence did not come over as apparently credible, or was otherwise unsatisfactory. I look, for example, to page 761 of the transcripts, where Mr. Todd was asking about Cherubim Investments (HK) Limited, which on the Organogram is clearly stated as being 50% owned by KKP and 50% by Soo Lay (both owned by the husband). The husband was unwilling to accept that he is the ultimate owner of Cherubim, and said that it could be a mistake on the Organogram and that it would be necessary to ask whoever prepared it.[84]There was then a series of exchanges in cross examination (776 to 780) about a company, Banyan Tree Limited, with which the husband had earlier denied any connection. Schedules from his accountants, however, clearly show income coming to him from Banyan Tree, via the company Bonham Industries Limited (BVI) which, according to the Organogram, is owned indirectly 100% by KKP and Soo Lay. Hence, dividends paid by Banyan Tree appear in his accountants’ schedules as income of the husband. When that point was made to the husband (779) he said, after some evasions, that the accountants could have got it wrong.[85]Next, there is the husband’s evidence (782 to 790) in respect of a company, Rossway Park Management Limited, which manages the Rossway Estate. He said in his answers to a Questionnaire that he had no relationship with the shareholders or directors. This is inherently unlikely, since the company manages the Estate which the husband effectively purchased: which for the last 16 years he has used free of charge, when in England; and of which, through the chain of corporate ownership set out above, he is the ultimate owner. Cross-examination revealed that the directors are all well-known to him and that he knows that its assets comprise ‘nothing really significant’ (viz £250,000). His answers to the wife’s Questionnaire were, thus, clearly misleading.[86]The husband’s answer to Questionnaire was similarly less than frank in relation to a personalised number plate P1 KKP, (his initials), which he again described as having no connection with him. In fact, as he accepted in cross-examination (774 to 777) it is owned by one of the companies in the group and it used to be on a Rolls Royce (also owned by one of the companies) available for his use when in this country. It is now on some kind of van with seats, in which he was brought to-and-fro for the hearing. Clearly, the personalised number plate has a connection with him, because it has been on vehicles in respect of which he has had free use, and it is owned by a company which either indirectly belongs to him, or else in which he has a direct or indirect interest. So his answer to Questionnaire was again misleading.[87]Next, there is the issue of the occasions when the husband has not paid the wife’s MPS and LSPO, as set out above. He said twice in his evidence (839 and 841) that, when he had been in arrears, it was because he had not been able to pay at that time. However, later, at page 858, he said:
“… I did not pay because I did not agree with the amount”
. It came over that his guard slipped in that exchange, wherein he stated the true reason for his late payments (not being an inability to pay).[88]The last port of call in respect of the Fresh Approach issue relates to some so-called Imerman documents. On 25th April 2014, the wife’s solicitors wrote to the husband’s then solicitors, disclosing a small clip of documents which they said had been found by the wife ‘in unlocked cupboards and lying around the former matrimonial home, Rossway House’. The wife’s solicitors recorded that the wife had brought in to them two envelopes, one of which they were forwarding to the husband’s former solicitors, and the other of which they (the wife’s solicitors) were retaining securely, but which they did not intend to inspect without the husband’s consent or the permission of the court. They asked the husband’s former solicitors to consider the material and to provide disclosure of that which was disclosable.[89]Subsequently, at the first appointment, on 11th February 2016, I directed the husband to serve on the wife those Imerman documents, which were by then being held by his current solicitors. That duly happened. Later still, in a letter of 12th December 2016, the wife’s solicitors drew specific attention to one of the Imerman documents, which is headed, “Fresh Approach Share Purchase on 14th February 2013”. That document now appears at bundle 37/G/110 and needs to be looked at for its full terms and effect. In summary, it sets out the shares in MUI owned by Norcross, Cherubim, Bonham and PMI combining to represent 47.67% of the company. It then adds, separately, certain newly-acquired shares attributed to Fresh Approach in MUI which, when combined with Fresh Approach’s previously-owned shares, is shown as giving it (Fresh Approach) an interest of zz% in MUI. Those combined percentages of 47.67% and zz% are then totalled, by whoever created the document, to being virtually the same as yy% of MUI, as referred to at paragraph 76 above.[90]Document 37/G/110 has raised a number of issues. Mr. Wagstaffe submits that it was illegally obtained. If (which the husband denies) it was his document, then, says Mr. Wagstaffe, it was confidential to him; the wife should not have photocopied it; and her solicitors should not have retained any copies. This, he submits, taints the document with illegality from the outset. Further, he points out that there is no direct evidence from the wife herself as to precisely where and how she found document 37/G/110, nor the other ‘Imerman documents’. These deficiencies, he says, go to weight: in all the circumstances, no weight should be attached to 37/G/110.[91]The husband himself was asked in cross-examination about 37/G/110 (765 to 770). In effect, he denied that it was a document of his and said that anybody could have put it where it was found. In answer to the question, “Why did you have a document that was entitled Fresh Approach?”, he replied, “Anybody could have prepared a document like that.” Asked why someone had taken the trouble to collate and combine the information about Fresh Approach and about the other companies, Norcross, Cherubim, Bonham and PMI (each owned indirectly by him), the husband answered, “I do not know why anybody. I do not know why. Maybe somebody with some imaginative mind or devious mind”, (768).[92]It is the fact that no objection to document 37/G/110 was taken on behalf of the husband until Mr. Wagstaffe’s final speech. Mr. Todd’s answer to the point about there being no direct evidence from the wife of how she found the documents is that, if he had realised any such point was going to be taken, he would have asked her about finding them. Alternatively, he says that Mr. Wagstaffe could and should himself have cross-examined her about finding them, given the clear statement of her case on how she found them, contained on her instructions in her solicitors’ letter of 25th April 2014, which accompanied service of the documents.[93]It is common ground that following the wife’s obtaining an ex parte Occupation Order on 18th February 2013 (above), the husband did not return to the main house at Rossway. He would therefore have had to have prepared this document, if it was prepared by him, between the 14th (the date on its face) and 18th February 2013. Mr. Wagstaffe says this is very unlikely, although it has to be said that the husband would not have been expecting an injunction restraining him from returning to the property. Mr. Wagstaffe also asks me to look at the document carefully. It can be seen that the top part of it is not quite parallel to the lower part. That, he says, looks suspicious, together with some other lines on the bottom edge, which he suggests look like the sort of lines sometimes produced by photocopying. Mr Todd commented to the effect that an investigation of this sort would have required expert evidence.[94]There is force in both sides’ arguments in these respects. The wife should, as a matter of course, have given formal evidence at some point of the finding of the Imerman documents. Then, she could have been cross-examined on that evidence. On the other hand, she could have been cross-examined on the issue anyway, given her solicitors’ letter explaining clearly how she had told them she had found the documents. I accept Mr. Todd’s point that he would have led evidence from the wife about the finding of the documents if he had known that any such point was going to be taken in Mr. Wagstaffe’s final speech.[95]I cannot take seriously the husband’s suggestion that some unknown person with a devious mind chose to create 37/G/110, let alone plant it in the house. That is fanciful. It must, on the balance of probabilities, have been prepared either by or on behalf the wife, or by or on behalf the husband. Neither has a clean bill of health as to reliability as a witness. However, it would have been a quite remarkably devious thing for the wife to do: to assimilate and collate all this accurate information; to produce a false document; to incorporate it amongst other Imerman documents; and then dishonestly to produce it to her solicitors, purporting inferentially that it had been prepared by the husband. All this would have been done in order to bolster her case about Fresh Approach, in advance of knowing whether the husband was going to disclose it or not at the time of his Form E later in 2014 (as in fact he did). It would show a dishonest cunning to an extent and degree which, in spite of the criticisms which can justly be levelled at the wife, I have not perceived in her. The husband, on the other hand, as I have set out, has sought, in his evidence, to adhere to positions which are not or do not appear to be true.[96]All in all, I am compelled to the conclusion, and I find on the balance of probabilities, that document 37/G/110 referring to Fresh Approach’s holding in MUI was not created by the wife (which was not put to her, in any event), but was prepared and left in the house by the husband at a time when he was not expecting to be unable to return there.[97]As just mentioned, in deciding the substantive issue about Fresh Approach (whether it is or is not owned or controlled by the husband), I am concerned with the balance of probabilities. As part of weighing the probabilities, I take into account the unlikelihood of someone in the husband’s position, and with his status in Malaysia, maintaining a controlling interest in a listed company without disclosing the fact. The evidence relied on by the wife has to be sufficiently persuasive, therefore, to surmount that unlikelihood. I have reached the conclusion that it is. In so doing, I take account most particularly that Fresh Approach appears on the Organogram annexed to the husband’s Form E and that the Fresh Approach Certificate of Incumbency was similarly so annexed; I also take account of document 37/G/110 and of the husband’s evidence that Fresh Approach is ‘part of the whole MUI group’. I have specifically not taken into account anything I have read on the topic in the press. I can understand, given the great complexity of the husband’s business affairs, that he is likely to rely on his staff to put a lot of this material together. On the other hand, his solicitors’ letter spoke of the care which had been taken over the Form E disclosure and described the Form E expressly as “approved”. The person who could explain how Fresh Approach became incorporated within the husband’s disclosure is Dr. Lim. He could say that it was all a mistake and that Fresh Approach should not have been included on the Form E annexures. He could explain just how it did come to be accidentally included. But he has neither been called nor has any explanation been given as to why he could not be called. Nor has the husband’s nephew been called (a Director of both Fresh Approach and Fresh Properties), who lives in Kuala Lumpur and who could have confirmed the husband’s asserted lack of any connection with Fresh Approach. The issue has been flagged up by the wife’s team for a long time.[98]I accept Mr. Wagstaffe’s point that, if Fresh Approach is the husband’s, the very last thing he would have done, or wanted to do, was to disclose it by accident, especially given the obvious similarity in name with Fresh Properties. On the other hand, the husband told me (876) that he ‘glanced’ at the Organogram, and I can only think that he must have done so with insufficient care to notice Fresh Approach’s inclusion there, or by way of the annexed Certificate of Incumbency.[99]The last question on Fresh Approach is: what exactly is the husband’s interest? Does he control it or own it? It is for the husband to explain his affairs clearly, if necessary with the expert and professional help clearly available to him. This he has not done; and it is not for the wife and the Court to try to second-guess the draftsman’s meaning behind dotted lines, red typescript, and so on. My judgment, in all the circumstances, is that the husband owns or is to be treated for these purposes as owning Fresh Approach and, thereby, a further xx% of MUI over and above his holding (through companies) already disclosed, so giving him a majority holding in MUI.

Valuation of the husband’s business interests

[100]The CV of the SJE, Andrew Caldwell [C.E.85] shows that he has over 30 years’ experience in the valuation of companies and businesses. It is all set out there in detail between pages C.E. 85 and 89 and I do not need to repeat it. I have read and re-read his reports which run between C.E.29 and C.E.118 (leaving aside his very recent report on liquidity).[101]The key dispute between the parties turns on a substantial increase in Mr. Caldwell’s valuation of the husband’s business empire as between his first report of 17th October 2016 and his second report of 2nd March 2017. He gave his reports on different assumptions about my findings regarding Fresh Approach, and on the then hypothetical assumption that the husband were found to own Fresh Approach, that increase between his two reports is of roughly £50 million, from £122.9 million to £173.5 million. It is explained in this way.[102]At C.E.68 of Mr Caldwell’s first report, there were two paragraphs which appeared, at first sight, difficult to reconcile. The first said that there were “…. clear indications that property revaluations could have a significant impact on value” (referring to revaluations of the substantial portfolio of hotels and other properties owned directly or indirectly by MUI); and the second paragraph read:
“Having said this, it is quite clear that the market is aware of such ‘hidden’ value, which suggests that it should already be factored into the current share price”
. Some time was taken getting clarification of those two sentences. On the 6th January 2017, Mr. Caldwell wrote to both sets of solicitors to say that, having considered the matter further, he had come to the view that desktop indicative valuations of the underlying hotels and other properties would be desirable in the context of producing more meaningful valuations of the husband’s business empire. Back in February 2016, I had in fact directed that if the SJE considered that valuations of such underlying assets were necessary, then the parties should co-operate in arranging them; but for whatever reason, this had not happened. Mr Caldwell told me (991) that it was when the wife’s solicitors suggested to him that the Corus Hotel in Kuala Lumpur might have a development value of as much as 2 billion Malaysian Ringgits (c £377m and much greater than book value) that he decided he needed updating valuations.[103]In the event, at the Pre-Trial Review on 16th January 2017, after hearing a contested application by Mr. Todd for desktop valuations of the hotels (etc.) here and in Malaysia, I ruled that such valuations should be obtained and that Mr. Caldwell should thereafter provide an updating report. I warned the wife that this process might run the risk of jeopardising this final hearing. It is fair to say (and I shall not overlook this when considering discounts at a later stage) that there are four other properties in the MUI group, namely, in Australia, USA, Hong Kong and Singapore of which, in the interests of proportionality, the wife’s team did not seek updating valuations.[104]The ordered desktop valuations were swiftly undertaken by Knight Frank, who prepared a report dated 24th February 2017 [Bundle 23:1982 to 1998]. Understandably, it was heavily caveated, for example in respect of lack of time, lack of detailed trading information, lack of inspection (save as regards three London properties) and lack of discussion with management. Nonetheless, valuations were given by Ian Elliott, the partner in charge of Hotel and Leisure Valuations, to the best of his ability. These 2017 valuations increased substantially the historical cost valuations appearing in the companies’ accounts, upon which valuations Mr Caldwell’s report of October 2016 had been based. That cumulative increase in underlying property valuations created the bulk of the £50 odd million increase appearing in Mr. Caldwell’s second report dated 2nd March 2017.[105]At the outset of the hearing, Mr. Wagstaffe asked me to exclude Mr. Caldwell’s second report, on the basis that it had come in too late for the husband fairly to deal with it. The husband, he said, might have wanted to make a Daniels v Walker type application for other valuation experts, for example so as to challenge the Knight Frank desktop valuations: but time had not permitted. There was discussion about this issue between 49 and 62 of the transcripts. I took account of the fact that the Knight Frank report had been in play since 24th February 2017 and that no questions had been asked of Mr Elliott on behalf of the husband pursuant to the Rules since that time. Nor was any evidential base put forward on the husband’s behalf, even on a specimen basis, to suggest that any valuation proposed by Knight Frank might be unreliable, not more so than already covered by their own caveats. I further bore in mind Mr. Caldwell’s definitive opinion that updating valuations would help him to give the court the most reliable opinion as to the current value of the husband’s businesses. I therefore told Mr. Wagstaffe (339 to 341) that I was at that stage against his application to put out of my mind Mr. Caldwell’s second report (which was in the core bundle and which I had already read as part of my preparation); but that I would not give a formal ruling to that effect and would be willing to consider his application further, if he raised it, once I was deeper into the case. He forewarned me (341) that this might lead to an application on behalf of the husband for the entire case to be adjourned. In fact no further applications were made on behalf of the husband about disregarding Mr Caldwell’s second report, nor to the effect that the entire hearing should be adjourned. So I am left in the position of considering the validity of Mr. Caldwell’s opinion based on the updated valuations of MUI’s underlying property base.[106]That does not mean to say that the methodology of valuing MUI on that basis is accepted. Far from it. Mr. Wagstaffe’s submission is that, since MUI is a listed company on the Malaysian Bursa, there exists a price per share and one should look no further.[107]Mr. Caldwell’s explanation for his opinion that strict adherence to the listed price on the Bursa of MUI’s shares would fail to give a realistic value of the husband’s business empire, appears at 994 to 995 and 1002 to 1004 of the Transcripts. In summary, his view is based on the fact that the Stock Exchange price is generally geared to or influenced by transactions involving small minority shareholdings. Such shareholders, he said, tend to be interested in dividend; whereas MUI has not paid a dividend over several years. So the price tends to be depressed on that basis. However, MUI has a substantial asset base such that, when one moves ‘up the chain’ of shareholders and reaches 46% or more, then the potential exists to access and unlock the sums represented by the underlying asset base. Looking at it from the perspective of a potential vendor of those higher proportion shareholdings, “… they are not willingly going to sell off underlying value without extracting something for it”. Mr. Caldwell said that he would expect such shareholdings “… to be sold in a way that would maximise the value”.[108]Whilst it may be very rare to go behind a listed share price, and I would not wish to be seen as encouraging it in financial remedy cases, there is clearly force in what Mr. Caldwell says. It is most unlikely that an astute businessman like the husband would permit his indirect majority shareholding in MUI, amounting as I find to around yy% (as defined at paragraph 76 above) to be sold at listed share prices influenced by an absence of dividend, when he knows full well that the asset base is now greatly increased in value above that contained in the company accounts. As an example, one particular hotel, which I will not identify here, appears in the accounts at approximately £56 million, but was valued by Mr Elliott (with all his necessary caveats) at £135 million; and the husband himself spoke more in the region of £200 million. That example is at the extreme end, but it serves to support Mr. Caldwell’s point. So I do propose to accept Mr. Caldwell’s evidence as regards the valuation of the husband’s business interests as per his March 2017 report at C.E.111 (subject to what I have to say about discounts at paragraphs 136 to 139 below) namely that if the husband owns Fresh Approach (as I have now held he does) the valuation of the business empire is: £173,513,187.

Conclusion as to the ‘kitty’

[109]The agreed approach in Counsels’ Schedule of Assets is to extract from that figure of £173,513,187 just mentioned the value of the two residential properties in corporate ownership, namely, the Rossway Estate (in its entirety) at £18,275,000 gross and 10 Ukay Heights at £1,847,157 gross. That leaves £153,391,030 as the value of the husband’s true commercial business empire. To that has to be added all the real properties (i.e. the Rossway estate in its entirety, 10 Ukay Heights and the properties owned by the husband or by the parties jointly in Australia and Canada) in the combined sum of £26,821,434; and the ‘funds’ in the sum of £24,713,131; and pensions of £970,299. The grand total of these figures is £205,895,894, which represents the ‘kitty’, before deducting the discounts explained at paragraphs 136 to 139 below. It would have been higher but for a recent decline in the value of Laura Ashley shares.

Is Rossway, or any part of it, held on a resulting trust for the husband?

[110]Mr. Todd submits that the answer is plainly ‘yes’. Mr. Wagstaffe and Mr. Bheeroo on behalf of the three companies concerned submit plainly ‘no’. The way in which the Estate came to be purchased was that, whilst in this country on business in 2000, the husband learned through an associate that it was on the market. He was impressed with it and called up the wife to come over from Canada to see it. They both liked it and the husband decided to purchase it. It is pleaded by the wife in her Points of Claim dated 3rd August 2016 that on 13th April 2000 one of the husband’s staff in Malaysia wrote to solicitors in this country asking them to act in the purchase of the Estate and describing the intended purchaser as the husband “… (or company to be nominated)”.[111]So it was that the Estate came to be purchased for £6.75 million and placed in the name of Central Point. The following year, as above, the main house and its curtilage was extracted from the Estate and conveyed by Central Point to Dunross for a stated consideration of £495,000. During cross-examination (602) Mr. Todd asked the husband whether he had been involved in this conveyancing of the main house from Central Point to Dunross. The husband said that he had been. He was then asked whether he had taken the view at that time that effectively this was his land, and the husband answered “Yes”. Question:
“And it did not really matter, as long as you owned both of the companies, as to how the legal title was held between those two companies?”
Answer: “Yes” (i.e. agreeing that it did not really matter). Asked then as to where the conveyancing files were, the husband said that he believed they were ‘held by the banks or something’. Yet they have never been produced. According to the husband’s evidence (603) neither of Central Point and Dunross do anything other than hold Rossway. As I have said, they are both owned 100% by Norcross which, through KKP and Soo Lay Holdings, is owned by the husband.[112]Mr. Bheeroo relies on the accounts of Central Point for the year ended 31st December 2013 [File 15:1310]. There, an amount is shown due to creditors of just over £6 million, of which £5,743,323 is described as “owed to Group undertakings”. Thereunder, it is stated:
“The holding company, Norcross Limited, provided the funds for the purchase of the investment properties”
. Pausing there, such properties are not identified in the accounts, merely described as tangible fixed assets. Then continuing:
“The amount owing to Norcross Limited by the Company [Central Point] as at 31st December 2013 was £5,743,323.”
So, submit Mr. Wagstaffe and Mr. Bheeroo, that is an end of it. Once Norcross lent the money to Central Point, the money became Central Point’s to do with as it wished. Granted it used the money to buy the Rossway Estate, but there can (they submit) be no resulting trust over the Estate in the husband’s favour, because it was bought with Central Point’s own money. Similarly, when Central Point later transferred the main house to Dunross for value, it was a straightforward transfer by one company to another, with no possibility of a resulting trust or any other form of trust attaching to the main house.[113]Mr. Todd’s case is that such transfer from Central Point to Dunross clearly only transferred the legal title (as an exception to the normal rule that the beneficial title follows the legal title) with the result that the beneficial title to the main house remains with Central Point and is in turn subject to the original resulting trust in favour of the husband which originally affixed to the entire estate when it was purchased.[114]None of these submissions, with respect, addressed the trust principle engaged in this process, whereby, as I understand it, if the original purchase price went by the steps relied on inferentially by Mr. Wagstaffe and Mr. Bheeroo (husband placed funds with Norcross, which transferred them to Central Point, which bought the property) then any resulting trust in the husband’s favour would attach to the money and would be overreached when the money was passed from Norcross to Central Point. This would leave the husband’s beneficial interest in the sum of £6.75 million affixed to the chose-in-action comprising Norcross’s right to enforce the debt of £6.75 million as against Central Point. But in such circumstances, the husband’s beneficial interest would not flow through to attach to the Rossway estate itself, as per Mr Todd’s submission. Mr. Todd also maintained without elaboration that there would have been a ‘Quistclose trust’ in the husband’s favour, but I cannot see that there would have been, nor that it would advance the wife’s case if there were.[115]Most important to my mind in all this is the fact that the husband has not chosen to deal in evidence with any of the details in respect of the purchase; and the companies have chosen not to call any evidence at all. Nor have they given any discovery as I ordered them to do on 16th January 2017 at the Pre Trial Review (paragraphs 13 and 14 of my order at A.B.115). When I made the point to Mr. Bheeroo that there must somewhere be at least some paper trail about these transactions, he was unable to assist me in any way (1042 and 1043). It is all very well arguing that, as is the case, the burden falls on the wife to prove her case; but the information here is entirely within the knowledge and custody of the companies and/or the husband, who said he thought that the conveyancing documents were ‘held by the banks or something’. Yet they have not been vouchsafed. What is known nevertheless is that the £6.75million used as the purchase price of the Estate was the husband’s money. He accepted as much in terms when he gave evidence to me at the October 2014 hearing. Put to him by Mr. Todd that it was his money, he answered: “Yes. All this was purchased with my own money”, which he confirmed on the following page [Bundle 26:1045 and 1046].[116]At paragraph 44 of Prest v Petrodel Resources Ltd 2013 2AC 415 Lord Sumption said this:
“There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party's failure to rebut it.”
[117]So where am I left here on the evidence and/or on the inherent probabilities? The answer is this. It is inherently unlikely in my experience, where entities are used in this way, that the husband wrote out a cheque to, or otherwise paid Norcross Ltd, which in turn wrote out a cheque to, or otherwise paid Central Point, which then paid the conveyancing solicitors the £6.75m as the consideration for the purchase. Much more likely is that the husband simply put the conveyancing solicitors in funds using his money (as he accepted it was); that the property was duly purchased from the vendor and placed in the name of Central Point Ltd; and that the company accounts were then so prepared as to state a loan by Norcross Ltd to Central Point Ltd.[118]In my judgment, it was for the companies, or alternatively for the husband, to rebut this likely sequence, which they have chosen not to do. Nor has any explanation been given as to why they could not do so. Nor, by the same token, have they produced any evidence to show that the provision of the funds by the husband to achieve the purchase was in the nature of a loan to Norcross Ltd or, alternatively, to Central Point Ltd. If it had been a loan, there would obviously be no room for a resulting trust and he would merely have the right to repayment of his money, but no interest in Rossway (West Deutsche Bank v. Islington LBC [1996] AC 669 per Lord Browne-Wilkinson at page 708A to B). That would however require evidence of the nature of the transaction, which is missing.[119]As regards the transfer of the main house by Central Point to Dunross, there is again no evidence about the detail of this transaction. I accept it is established from Land Registry documents [File 12:228-235] that Central Point transferred the property to Dunross for £495,000 and that stamp duty was paid, but there is no evidence at all as to where that money came from, nor to show that it was a mere accounting exercise. The accounts of Norcross Ltd before me do refer to loans to subsidiaries, the subsidiaries being stated as being Dunross Ltd and Central Point Ltd. But the figure of £495,000 is not identifiable within the sums of money stated. Likewise in the Dunross accounts, its liability to Norcross is stated as being much greater than £495,000, and so may or may not include the particular sum of £495,000 which the companies’ Defence asserts was lent to Dunross by Norcross. So again, I am left with no evidence and no proper documentation as to how this £495,000 was raised by or made available to Dunross Ltd as the consideration for the transfer of the main house to it (Dunross Ltd) by Central Point Ltd. The impact of this was discussed with counsel during their respective submissions (Mr. Wagstaffe at 1221 and 1222 and Mr. Todd at 1329). Having reflected on the point further and more carefully and in the absence of any evidential help from those who could have provided it, I consider that the appropriate inference is that the same funding arrangement was put into effect by the husband in respect of this second transaction as occurred in respect of the original purchase of the whole Estate, namely, that it was funded by him and not as a lender. In drawing this inference and on this point generally, I note the further words of Lord Sumption in Prest, at paragraph 52 where he said:
“Whether assets legally vested in a company are beneficially owned by its controller is a highly fact-specific issue. It is not possible to give general guidance going beyond the ordinary principles and presumptions of equity, especially those relating to gifts and resulting trusts. But I venture to suggest, however tentatively, that in the case of the matrimonial home, the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company. In many, perhaps most cases, the occupation of the company's property as the matrimonial home of its controller will not be easily justified in the company's interest, especially if it is gratuitous. The intention will normally be that the spouse in control of the company intends to retain a degree of control over the matrimonial home which is not consistent with the company's beneficial ownership. Of course, structures can be devised which give a different impression, and some of them will be entirely genuine. But where, say, the terms of acquisition and occupation of the matrimonial home are arranged between the husband in his personal capacity and the husband in his capacity as the sole effective agent of the company (or someone else acting at his direction), judges exercising family jurisdiction are entitled to be sceptical about whether the terms of occupation are really what they are said to be, or are simply a sham to conceal the reality of the husband's beneficial ownership.”
[120]In that passage, Lord Sumption referred to ‘the matrimonial home’. Whilst the main house at Rossway cannot be described as the matrimonial home, it was undoubtedly a matrimonial home of this family. This was dealt with at paragraphs 13 to 16 and 44 to 46 of my judgment dated 17th October 2014 on jurisdiction and forum conveniens (C.F. 45). I there recorded that the husband’s case throughout had been that the Rossway Park Estate was and is just ‘a commercial venture, a good investment and somewhere to stay when attending Board meetings in this country’. However, I also noted there that the husband himself referred to Rossway as “home” in his evidence before me in October 2014; also that in an affidavit of his dated 27th February 2013 in the Malaysian proceedings, he had said:
“… In October 2012 we went for a holiday in England and we stayed at our home at Rossway Park Estate”
. Elsewhere in that same statement, he had described Rossway as “our England home”. In the same judgment of October 2014, I mentioned that each of the five children has had a room for them at Rossway and that the housekeeper told me rooms were always kept ready for them should they visit. I recall that the architect’s plans actually show bedrooms identified by the children’s respective names. The main house was never rented out to third parties, but was kept exclusively for family use. There is no evidence or suggestion that Dunross Ltd made any charge to the husband for the use of it, nor Central Point any charge for the use of the surrounding land. So in my view, Lord Sumption’s words are apposite to this case[121]I need to mention a point of Mr Wagstaffe’s to the effect that the husband would positively have wished and intended not to have a beneficial interest in Rossway, because if he had a beneficial interest he would thereby deny himself the tax advantages which are generally taken to be the purpose of arrangements such as these. That, of course, presupposes however that the relevant authorities would be aware of any such beneficial interest. The alternative viewpoint is that anonymous and complex structures like these allow what is actually beneficial ownership and usage to exist, but below the radar. I note in Prest itself, that Moylan J (as he then was) made a finding that the husband’s purpose had been “wealth protection and the avoidance of tax” (per Lord Sumption at paragraph 36): but that the Supreme Court did not thereby consider itself disabled from making findings that the various properties in this jurisdiction were held on resulting trusts for Mr. Prest. That way his beneficial interests in them were able to be transferred to the wife.[122]The corporate status of the three companies involved (Norcross, Central Point and Dunross) must clearly be respected, even though they are effectively each owned 100% by the husband. Nor is there any question whatever of ‘lifting the corporate veil’ in order to ‘get at’ the bricks and mortar. Nevertheless there is good justification for holding, as I do, that Central Point Ltd and Dunross Ltd hold their respective properties at Rossway on a resulting Trusts for the husband, as the provider of the money. That beneficial interest in each property therefore represents an asset of the husband’s capable of being transferred to the wife as part of her award.

Variation of Post-Nuptial Settlement regarding Rossway pursuant to S24(1)(c) of the Matrimonial Causes Act 1973?

[123]I need to deal with this briefly, but only in case I am wrong about the resulting trust point. My doing so is not intended to imply that I think I am. Section 25(1)(c) of course creates a discretionary remedy and is quite different from declaring the existence of a trust, as discussed under the last heading above, where no exercise of discretion is involved. The starting point is Brooks v. Brooks[1995] 2FLR 13 where Lord Nicholls identified the indicia of a ‘settlement’ for the purposes of S.24 of the Act by saying:
“… broadly stated, the disposition must be one which makes some form of continuing provision for both or either of the parties to a marriage, with or without provision for their children. Conversely, a disposition which confers an immediate, absolute interest in an item of property does not constitute a settlement of that property.”
He made the point that the authorities consistently give a wide meaning to ‘settlement’ in this context. In Ben Hashem v. Al Shayif [2009] 1 FLR 115 at paragraph 290, Munby J (as he then was) set out five guidelines when dealing with a post-nuptial settlement. I have considered that case and have those guidelines in mind. Last, in DR v GR (Financial Remedy: Variation of Overseas Trust [2013] 2 FLR 1534, at paragraph 18, Mostyn J stated:
“I am of the opinion that if under an arrangement ‘some form of continuing provision for both or either of the parties to a marriage’ (which would include, on the authorities, the provision of accommodation) has been made from assets held by a group of family companies then the entire set-up, when viewed as a whole, is capable of amounting to a variable nuptial settlement. If the top company is owned by a trust of which the spouses are formal beneficiaries then the position is a fortiori.”
[124]Mr. Wagstaffe submits that to vary any settlement regarding Rossway would be contrary to public policy. This is on the basis that, if the wife’s case on habitual residence were right, then (with only a tourist visa) she must be illegally in this jurisdiction and so the court should not assist her. Public policy and illegality are however nowhere near as simple as that. One has to consider the nature and seriousness of the illegality, the importance of the public policy engaged, proportionality, overall fairness between the parties and so on. Even if the wife were here ‘illegally’, which is not established, I would not consider that she should be denied a fair share of the resources built up over the course of this long marriage.[125]I have already mentioned the arrangements which pertained in respect of Rossway. It was all set up, as I find, to be a continuing provision for the couple and their family: the house to provide accommodation and the Estate to provide a pleasant amenity and income. The whole was also, no doubt, intended to be a good investment. It seems to me that, realistically, any settlement was as to the use, not as to the ownership of the main house and the Estate. Since Central Pointand Dunrossare the owners of the property (I am now assuming hypothetically no resulting trust in the husband’s favour) it would not be right to vary the trust in such a way as wholly to deprive them of their property. In my view, such an outcome would be disproportionate and would pay insufficient regard to the decision in Prest. However, it would, I think, be a fair and reasonable result that I should vary and extend the licence given to the wife notionally (but not actually) by Dunross Ltd, via the husband, to use the main house, such that the licence would pertain for her life, without payment. I am insufficiently informed about Central Point Group Ltd and the current commercial arrangements to know what impact there might be, for example on creditors, if the Settlement were further varied to give the wife the right for her life to receive the income made by the commercial estate. I shall therefore adjourn that aspect of her variation of trust application to await whether the husband complies with the lump sum order and other orders I propose to make. If he does, then on final payment, the wife’s outstanding variation of trust application regarding Central Point’s part of Rossway will be dismissed. If not, then the wife may restore that application with a view to trying to achieve income provision, by way of variation of settlement, to replace some of that which she would have lost by virtue of the husband not complying in full with my proposed order.[126]All these paragraphs under this heading are, I emphasise, only relevant if for any reason my decision on the resulting trust point were successfully impugned.

The wife’s civil claims

[127]It was agreed during the hearing that I should ‘fact-find’ at this hearing as regards the wife’s civil claims, but that to save time the legal consequences of the facts found (if found in her favour) should be adjourned over. That was to wait and see whether the husband honoured the financial remedy order which I shall make. If he does so, then the civil claims would be dismissed; but if not, then they could be restored, thus perhaps helping the wife towards enforcement. By way of fact-finding, these are my conclusions and I am going to take it fairly shortly.[128]The wife’s Particulars of Claim assert that the parties agreed in a legally-binding way that they would share everything. She says this was agreed before the marriage and even by way of the marriage ceremony itself, although I have not been told the precise words which are said to have been used in that ceremony. She says that the husband confirmed this agreement on repeated occasions during the marriage, namely that their worldly wealth would be shared equally. It was in reliance on this, according to the wife’s pleading, that she agreed to marry the husband and that she subsequently performed “all those wifely services” which she did. This is said to have been “in express reliance on the representations publicly made at the wedding and repeated privately on diverse occasions”. Her case is that the entirety of the parties’ wealth was therefore held in the form of ‘a commercial and marital partnership’. Examples of the sort of things which the husband is alleged to have said are, “What is mine is yours, we are in a partnership”; and “It is our money”; and “Whatever is generated, we share”. Thus, as pleaded on behalf of the wife, there was an understanding or common intention that any assets acquired or generated by either party would be jointly owned. In the “claim” part of the Points of Claim, there is found amongst other claims, reference to “a declaration that all of the [husband’s] assets are owned equally and beneficially by the [wife] and the [husband]”.[129]The wife adhered to this case in her evidence when cross-examined by Mr Wagstaffe to the effect that it was a mere invention, designed to assist her with enforcement, should that be necessary. Her evidence was in complete disarray as to the last occasion on which the husband made any such representation. She told Mr. Wagstaffe, at one point, that the last occasion had been in 2003; whereas her own Further and Better Particulars, prepared only the previous evening, referred to three occasions in, respectively, 2006 (which she thought might actually have been 2012), and twice between 2011 and 2013. This is inexplicable, save by a conclusion either that the wife lies so very profoundly that she gets herself confused and caught out (which I have to say is not my impression of her), or that she simply is one of those people, and they do exist, who seem to have a facility for coming up with answers which simply do not reconcile with something else he or she has said elsewhere, or even just said, yet without a conscious decision or intention to mislead.[130]In cross-examination, as one would expect, Mr Todd put the wife’s case to the husband. As regards some questions, the husband said he could not remember; but the main thrust was of denial: (817 line 23; 819 line 22; and 820 line 20).[131]As I have already found, both parties are vulnerable in that their evidence is, in places, unreliable and incapable of acceptance at face value. I do not perceive the wife’s case on these civil claims as being wholly invented, although it is right to say that there were several places within the proceedings between 2014 and August 2016, where she might have been expected to have mentioned this overreaching claim to a 50% share of everything, but did not do so. Her explanation was that her thinking and her recall tends to be in compartments, as to which I refer to what she said at 178 and particularly at 149:
“…I can’t remember everything at the same time. It takes me time at this age, 70 years. I find my memory is not as good as before. So to recall things, I need things to jolt me, then I begin to put all the dots together….”
. It is inherently unlikely that she only married the husband because of a serious belief that all their worldly wealth was going to be shared equally, in the sense of creating rights enforceable by way of legal action. Whatever the wife may think she believed now, I do not accept she would have believed it as a young woman happily entering into matrimony, when the relationship was fresh and new. I note in this context that at D158w in the wife’s Further and Better Particulars of her Points of Claim, it is pleaded: “… it would not have mattered to the wife whether the husband had just one dollar or a fortune, so long as he was willing to share his life with her on equal terms”.[132]I will accept, having seen and heard both parties, that there are likely to have been (i.e. were) occasions when the husband said the sort of things which the wife alleges. However, whether they were said romantically or (later on in the marriage) to smooth over some of the parties’ many arguments, I do not consider that the wife would, at the time, have seriously thought or did seriously think that such remarks were intended to clothe her with enforceable legal rights (and obligations). I reject the notion that the husband would have intended that, or that the wife would have understood him to do so. In my judgment there was, to put it more legalistically, no intention to create legal relations; nor (where detrimental reliance is necessary) any detrimental reliance. One only has to think it through for a moment: Mr. Wagstaffe has demonstrated that the wife disclaimed part of her mother’s estate in favour of a brother. How does that work, he asks, if all of each party’s assets were intended by them to be shared/owned equally? How trivial would personal assets have to be before one would ignore the all-embracing partnership of equal ownership: A set of golf clubs? Items of jewellery? And so on. It is so vague and unworkable that I cannot countenance the wife having seriously relied on it as a matter of enforceable right, whatever she may have now come to think and believe in the course of this bitter litigation. Those, then, are my findings of fact in respect of the wife’s civil claims. ‘Unenforceable orders’.[133]Mr. Wagstaffe has made the point that on general principle, orders should not be made if they would be unenforceable. If this were the principle applied in cases like this, then wives would never receive an award, in case they could not enforce it. In one or two places, the husband said that if the court ordered something he would comply; for example, at 687 and 842. At paragraph 52 of his case summary of 3rd March 2017, Mr. Wagstaffe himself wrote that “… [The difficulty or impossibility of enforcement] is not to say that the husband proposes to thumb his nose at this court’s judgment.” In short, I do not propose to make any different orders on the ground of possible enforcement difficulties from those that I would consider to be fair and just as between the parties.

RESOLUTION OF THE APPLICATION

[134]The objective of the court is to achieve fairness as between the parties. I have to take account of all the matters set out in S.25 of the Act. There is nothing to be gained by my setting them all out here. Running through them, I think I have covered the ground which they are intended to capture, except perhaps(a) the husband’s income and(b) the parties’ standard of living. As to the former, I have found it surprisingly difficult to identify in one place his current gross and net income from all sources. I propose to content myself with saying that it is very substantial. For example, he turned out not to be seriously praying in aid any inability to pay the wife’s MPS and LSPO at the combined rate of £1,320,000 per annum, accepting (as he did) that his occasions of non-payment had been caused because he objected to the quantum.[135]On the question of standard of living, there is the frequently seen performance of the husband tending to minimise it and the wife tending to maximise it. I have regard to the properties of which they have the use: at 10 Ukay Heights, a fully-staffed property of 12,000 square feet over four floors, with a separate guest wing, swimming pool, gymnasium, sauna and spa, and tennis court; at 163 Gardenwood Court, Canada, a property of 20,000 square feet, set in 10 acres of grounds with (when the house was still the family home for the wife and children) a nanny, housekeeper, personal trainers, a massage therapist, full-time gardeners and employees to maintain the swimming pool, a gym, spa room, theatre, tennis courts, peacocks, waterfalls in the garden, a miniature pony farm, two cottages, a chapel and a 2,000 square foot guest house; at Rossway itself, 15 bedrooms, five of them forming the husband’s suite, an indoor swimming pool, a gym, a games and billiard room, a cinema, staff quarters, lovely gardens, and two lakes which were constructed for over £100,000. The wife told me of Rolls Royces, Bentleys and Mercedes vehicles, all with chauffeurs. She spoke credibly of First Class flights and fine hotels. From a lot of this, the husband did not greatly dissent, although he did not agree some aspects of it. Periods of time were put to the wife as to how she was able to manage on greatly less than, for example, the current order for MPS; but I am satisfied that this was because the husband reduced his support for her and that she was just making do. That is why, as she told me, the Canadian property, in particular, came to look run down (as photographs placed before me show) in that she could not continue with all the necessary maintenance of such a large property. Taking account of all this, I am satisfied that the standard of living was, as one would expect in a case like this, very high.[136]Turning, at long last, to the computation of the wife’s award, I have already determined at paragraph 109 above that the overall ‘kitty’, subject to any further discounting, is in the sum of £205,895,894. Such further discounts are appropriate, in my judgment, for the following reasons. The Knight Frank desktop valuation is, as I have said, heavily caveated. Mr. Elliott explains in his report that where, as here, trading information is not available, hotels are more difficult to value and/or sell, and that the value could well be adversely affected. He also had to make key assumptions, for example, that there is no deleterious material within the buildings, that they are under competent management and that there is no need for immediate capital expenditure. With more time, these deficiencies might have been overcome. But the application made on behalf of the wife for the whole updating valuation exercise was not got on for hearing until 17th January 2017, although the possibility of needing it was flagged up within Mr. Caldwell’s report of October 2016. I appreciate the wife’s case that the absence of information was down to the husband and (whilst this has not been much investigated) I do accept that he was not as co-operative as he could and should have been. Even so, all these materials going to asset valuation are company materials, not the husband’s personally. In spite of his being the Chief Executive of MUI, he may have had difficulties with the rest of the Board, whose CVs I have read (in one of MUI’s Annual Reports) and who are gentlemen of status in Malaysia (877 to 879). The Board did, on the face of it, refuse in writing to allow the husband to produce informal valuations in respect of the hotel stock of MUI, even though the husband asked for permission to disclose such valuations far later in the process than he should have done. In their response to him dated 13th February 2017, the Board relied on certain rules of the Malaysian Bursa restricting the disclosure necessary to provide Mr. Elliott with all the information he would ideally have required; and there is nothing before me to suggest that those restrictions are not genuine.[137]Doing my best to be fair to both sides as regards this very last-minute valuation exercise and evidence, I consider I should factor in a discount in respect of Mr. Elliott’s valuations, which I propose to take (very broadly, I accept) at 10% of the value attributed by Mr. Caldwell to the husband’s indirectly-owned MUI shares.[138]Then, although I have accepted Mr Caldwell’s approach to valuing the MUI shares based on the updated desktop valuations of the underlying real property, he was quite willing to accept in cross-examination by Mr Wagstaffe (999 and 1000) that there would be ‘a respectable body of accountancy opinion’ which might well have a very different view from him on the point. I also have in mind the substantial measure of illiquidity here and the difficulties which the husband may well have in actually finding a buyer (whether for the MUI shares themselves or, much more likely, for one or other, or perhaps a percentage of the two ultimate holding companies, KKP and Soo Lay, which he owns). Mr. Caldwell told me that this area of realising the underlying value was not his specialty and there is no evidence before me (ignoring speculation and assertion) as to whether there will be a ready market. In my view, a further discount of some 20% would be fair, to take account of the factors in this paragraph.[139]Taking these two broadly-assessed discounts together, I propose to reduce Mr. Caldwell’s figure for the MUI shares by 30%. He has stated by e-mail that his figure for those MUI shares is £149,141,079 (being part of the total asset figure of £205,895,894 mentioned above). 30% of £149,141,079 is £44,742,323, which needs to come off the total of £205,895,894, giving a recalculated figure of £161,153,571. So that is what I hold the ultimate ‘kitty’ to be for the purposes of these proceedings. At a hearing on 7th April 2017 set up to finalise the Order, I was told that both parties have some further costs which do not appear in the agreed Schedule of Assets, and which will serve to change the overall kitty a little. This will be worked through by agreement and the new figures will go into my order. For the purpose of this Judgment however, I will retain the figures as per the Schedule of Assets used at the hearing.[140]Having rejected the husband’s arguments about ‘a sideways look’ at Malaysian law, and about pre-acquired wealth, and about special contribution, I can see no reason why the starting point should not be the yardstick of equality. However, the wife would prefer to have a lump sum rather than shares. That must be preferable to the alternative of her perhaps facing the difficult and expensive task of having to chase shareholdings halfway round the world; quite apart from the fact that the share transfer option would leave this couple financially linked. It is a familiar approach to depart from equality of outcome where one party (usually the wife) is to receive cash, while the other party (usually the husband) is to retain the illiquid business assets with all the risks (and possible advantages) involved. Both sides have put in mini-skeletons on this and provided me with various authorities, which I have considered. I appreciate Mr. Todd’s point that the husband is elderly and not in the best of health and so could soon sell up. But if, as he told me, (645), he does not wish to pack it in yet, it would I think be wrong to approach the division of the wealth in a paternalistic way that it would be better for him if he did. To try to take account of this difference in the type of the assets with which the parties will be left (which I do not think is double-counting any discounts already applied) I propose to award the wife 40% of the kitty of £161,153,571, namely £64,461,428. That will be her ‘worth’ with which she will leave the marriage. Some steps in getting to the final amount of the kitty have been very broad-brush and necessarily so; as also my reduction from perfect equality. But standing back and looking at all the circumstances, especially the nature of the resources, I am entirely satisfied that this outcome is as fair as can be to both parties. It is, I stress, not intended to achieve precision and any enforcement issues should be addressed in that spirit. Similarly, the fact that the husband is left with all the business assets (plus only Ukay Heights and the pensions) necessarily means that he may end up worse off or better off than this judgment predicates. For their own peace of mind going forward, both parties need to realise and accept that what this order creates is finality. They must not feel the temptation, or if they do they should resist it, to look over their shoulders to see if the other party is doing better or worse than expected.[141]I propose to transfer to the wife, the husband’s beneficial interest (as found) in the Rossway Estate and the main house. I did try (890 to 893) at the end of the husband’s evidence, to put to him the possible merits of agreeing to transfer Rossway to the wife as part of her award (given her wish to stay there) if the award turned out to be higher than its value. He said he would think about it and I subsequently asked Mr. Wagstaffe (1085 to 1087) to discuss it with the husband, as I am sure he has done, but nothing has come of this. The transfer to the wife of Rossway will put a monetary value of £17,818,125 net towards her award. That would leave what would have been a lump sum of £46,643,303. However, I then need to factor in the wife’s agreement throughout that all moneys paid to her under the MPS and LSPOs should be on account of her final award. As per paragraph 37 above that sum is £5,980,000 which, deducted from £46,643,303, leaves a lump sum of £40,663,303. So, that is the lump sum order which I shall make. I do not accede to Mr Todd’s submission to the effect that, since the wife agreed to have all her interim provision credited against her final award, then the same should apply to the husband on the asserted ground that he too has been spending family resources in the interim on his living expenses and legal costs. That was never agreed, nor flagged up. If it were to be applied now, it would undermine the basis of how the wife has put her case throughout, which may well have influenced in her favour the several interim provision decisions taken as the case has proceeded.[142]I shall direct the husband forthwith to transfer to the wife his interest in the properties in Canada and Australia, which have an estimated value of £7,202,331. If and to the extent that he does so, the value of each such property on the agreed Schedule of Assets is to be credited against the lump sum order.[143]The husband can cause the transfer of the Rossway Estate and main house straightaway, if he is willing to do so. I propose that this be done within 28 days, with liberty to the wife to apply to a District Judge to sign the transfer documents in default. If, for any reason, my finding that the husband holds the whole of the Rossway estate on a resulting trust were impugned, and my decision under S.24(1)(c) of the Act stood (giving the wife the right to live in the main house for life, free of charge), then there would be a need to value that right and it would have to be offset against the lump sum payment. That would need some sort of accountancy or valuation evidence and therefore a further hearing, in the absence of agreement, at which the lump sum would have to be adjusted downwards accordingly. There would also be the potential of questions as regards the maintenance and repair of the property, if the variation of settlement route were to be the eventual outcome of these proceedings. That again would require liberty to apply, as it is unrealistic to try to micro-manage it from this distance.[144]As to the lump sum, I propose that the husband be given time to make proposals, but that there be a backstop of one year, potentially extendable on application by him if he can show that, despite real efforts, he has been unable to produce the money.[145]In the interim, I propose that the husband continue to cause the usual running expenses of the main house at Rossway to be paid (which he has been doing up to now) until, and only until, the date when Rossway is transferred to the wife. Interim periodical payments should continue to run at £50,000 per month, £600,000 per annum. As and when Rossway is transferred to the wife, she should become the recipient of the income made by the estate, which is about £180,000 per annum net of costs of sales and administration expenses, but pre-tax (according to Central Point’s 2013 accounts, mentioned above). So in principle, the periodical payments should be reduced pro rata; but I shall leave the detail of this to the parties to discuss when they are drafting the Order. Further stepped reductions to the periodical payments should be factored into the order to provide for the transfers to the wife of the Canadian and Australian properties and any payments made to her on account of the lump sum. I leave it to discussion between the parties to produce a formula for this, in default of which there will be liberty to apply. Likewise, any further issues about tax (as to which the parties are in consultation with a well-known forensic accountant and are confident that they will achieve an agreed formula).[146]It is difficult under S.22 ZA (3) of the Act to justify ongoing legal services provision once the wife is the owner of Rossway, but if for any reason there were problems in this respect, then she may have permission to apply for continued legal services provision funding in respect of enforcement, should enforcement prove necessary.[147]Last, as to costs, there was discussion about this at the end of the hearing. There are many ‘costs reserved’ orders along the way. Mr Wagstaffe hazarded the possibility of a hearing even as long as five days to deal with them. Given the likelihood that each party would ‘win some and lose some’ and that the wife, anyway, has had LSPOs throughout, I proposed to them ‘No order as to costs throughout’. Both sides accepted the merit of this. I consider that such an order would meet the broad justice of the case and would avoid yet further costs and aggravation. So I shall say ‘No order as to costs throughout, save as regards costs orders already made (which shall stand)’. The costs of the companies and of D will have to be dealt with separately if they cannot be agreed. - - - - - - - - - - - - - -

Cited in 15 later judgments

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