Hong Kong Ordinances

GUARDIANSHIP OF MINORS ORDINANCE - SECT 20B

Surcharge on arrears of maintenance

(1) Where a maintenance order has been made against a judgment debtor, and the
judgment debtor, without reasonable excuse, repeatedly fails to make full and
punctual payment in compliance with the maintenance  order, the court may, on
application made by the judgment creditor, make an order requiring the
judgment debtor to pay to the judgment creditor a surcharge in respect of the
total arrears of maintenance which accrue on or after the commencement date.

(2) The application for a surcharge under subsection (1) may be made—

   (a)  in proceedings instituted for enforcing the maintenance order; or

   (b)  in a manner described in subsections (3), (4), (5), (6), (7),

(8) and (9).

(3) For the purposes of subsection (2)(b), the application for a surcharge
shall be made by a summons supported by an affidavit of the judgment creditor
stating—

   (a)  the name of the judgment creditor and the address for service of the
        documents relating to the application;

   (b)  the name and the address for service or last known address of the
        judgment debtor;

   (c)  the particulars of the maintenance order;

   (d)  the total arrears of maintenance due and unpaid and the date on which
        the arrears first accrued;

   (e)  a request for an order requiring the judgment debtor to pay surcharge
        at a rate to be decided by the court under subsection (11);

   (f)  a request for fixing a date, time and place for the hearing of the
        application;

   (g)  a request for an order requiring the judgment debtor to pay to the
        judgment creditor the surcharge claimed if the judgment debtor does
        not appear at the hearing.

(4) On receipt of the summons and affidavit, the court shall fix a date, time
and place for the hearing of the application.

(5) The judgment creditor shall serve a sealed copy of the summons and a copy
of the affidavit, together with a notice of the hearing, on the judgment
debtor.

(6) Without prejudice to any enactment relating to the service of documents
and save as is otherwise expressly provided, the summons, affidavit and notice
may—

   (a)  be personally served on the judgment debtor; or

   (b)  be sent—

        (i)    if the judgment debtor is represented, by post to the solicitor
               acting for that judgment debtor, or by leaving the same with
               the solicitor; or

        (ii)   if the judgment debtor is unrepresented, by post to the address
               for service given by him or his last known address, or by
               leaving the same at the address for service or the last known
               address of that judgment debtor; or

   (c)  be served in such other manner as the court directs.

(7) If the judgment debtor fails to appear at the hearing of the application
on the date fixed under subsection (4), then—

   (a)  if the court is satisfied that the summons, affidavit and notice have
        been duly served on the judgment debtor, it may proceed to hear the
        application and may make an order requiring the judgment debtor to pay
        a surcharge to the judgment creditor;

   (b)  if the court is not satisfied that the summons, affidavit and notice
        have been duly served on the judgment debtor, it may adjourn the
        hearing to a date, time and place as it thinks fit.

(8) The judgment creditor shall serve a notice of the adjourned hearing on the
judgment debtor.

(9) If the judgment debtor fails to appear at the adjourned hearing on the
date fixed under subsection (7)(b), the court may proceed to hear the
application and may make an order requiring the judgment debtor to pay a
surcharge to the judgment creditor.

(10) If the judgment debtor, within a reasonable time after having knowledge
of the order made under subsection (7)(a) or (9), applies by summons to vary
or set aside the order, the court may, if it is satisfied that there is
reasonable excuse for the judgment debtor’s failure to—

   (a)  appear at the hearing; and

   (b)  make full and punctual payment in compliance with the
        maintenance order, vary or set aside the order on such terms as it
        thinks fit.

(11) The amount of surcharge payable by the judgment debtor under subsection
(1) shall not exceed 100% of the total arrears of maintenance calculated from
the date on which the arrears first accrued to the date of payment of the
surcharge.

(12) If the court makes an order requiring the judgment debtor to pay a
surcharge, it shall specify in the order the amount of surcharge payable by
the judgment debtor and the date of payment.

(13) A surcharge payable under this section is recoverable as a civil debt due
to the judgment creditor by the judgment debtor. An action under this
subsection may be brought in the District Court even though the amount to be
recovered otherwise exceeds the limit of jurisdiction of the District Court.

(14) A judgment debtor who is aggrieved by an order to pay a surcharge may
appeal to the Court of Appeal against the order under section 63 of the
District Court Ordinance ( Cap 336). (Added 18 of 2003 s. 4)