XNG v XNH

Facts

XNG, the wife, and XNH, the husband, married in India in 2004 and have twins. The wife is a homemaker; the husband is a scrap metal trader. In their divorce they reached a mediated settlement recorded in a consent order on 21 March 2023. The wife kept the matrimonial condominium flat and the husband kept a bungalow. He was to pay her a total of $20m, including monthly transfers of $312,500 over four years, pay the flat's mortgage for four years, and meet her reasonable expenses until she received the full sum.

About a month later the husband asked to revise the order and marketed the bungalow. He paid only in part and, from August 2024 to January 2025, stopped the monthly payments. By 12 December 2024 he was in default of $1,671,246.87, though he paid the overdue sums in full by 28 February 2025. The wife applied in HCF/OADTV 4/2025 to vary the consent order, and later also in FC/SUM 696/2025. She first sought a lump-sum payment from a sale of the bungalow or security over it. After learning that the husband had taken a new mortgage loan of $29.5m on the bungalow on 29 April 2025, she asked mainly for the balance in one lump sum, or for another property in the same complex.

Issues

1. Whether the consent order could be varied because the wife said it was unworkable.
2. Whether the husband's conduct amounted to a material change in circumstances justifying variation.
3. Whether the wife could obtain a lump-sum payment or security over the bungalow.

Holding

The court declined to vary the consent order, but ordered that the husband must not dispose of or spend the $20.5m obtained from the re-mortgage without giving the wife seven days' notice, and that he render an account within seven days if he had already spent or moved it. Costs submissions were directed within ten days.

Reasoning

The court accepted that the applications would change the consent order and that consent orders carry particular weight. Although a court may now vary such an order without first setting it aside, a consent order has the added force of a contract, so showing that it appears unjust is not enough.

The wife had not shown the order was unworkable. The court found that the husband did not want it to work, which is different. He had the means to pay, especially after the new loan. By withholding payments for almost five months and re-mortgaging the bungalow, he had given the wife reasonable cause to fear non-payment. Even so, his apparent deliberate avoidance of payment was not a material change in circumstances.

The wife had no right to demand a lump sum or to rewrite agreed clauses, and the parties had not provided for security, so there was no basis for a charge over the bungalow. Instead, the court noted she could seek a Mareva injunction if any further instalment was missed, and other relief such as committal for other breaches, and made the notice and account orders.

From the judgment