FWP v. CYMA

HCMP 946/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 946 OF 2005

(On an Intended Appeal from FCMC No. 4515 of 2002)

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DECISION  ON  COSTS

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1.  In my decision of 7 July 2005 (“the decision”), I made an order nisi that the respondent do pay the costs of the application to the petitioner.

2.  By summons dated 19 July 2005, the respondent applied for an order that each party should pay its own costs.  It came before me on 28 September 2005 and then adjourned to 12 October 2005.

3.  The application is supported by the respondent’s 4^th affidavit sworn on 26 September 2005.  In that affidavit she repeated her case which I have already dealt with in paras 1 to 4 of my decision and I will not repeat them.  Essentially, her case is that she did not know she had agreed to allow the petition to go undefended.  What is also relied on by the respondent is the fact that the judge had not pronounced the decree nisi in court.  I have already dealt with that in para. 9 of the decision and held that that would not affect the validity of the decree nisi which was drawn up on 22 April 2005.  However, according to the respondent, as a result of that omission, she had been told by the staff at the registry when she went there in February/March that she would be able to raise her other defences to the petition in December when 3 days commencing on 5 December 2005 have been set aside to deal with ancillary relief.  I only have her side of the story and am not in a position to decide whether she was indeed so advised.  Be that as it may, even if she had been given wrong advice that is not a reason why I should deprive the petitioner of his costs.  She also claimed that she was told by the staff of the court after the decree nisi was served on her that she could only appeal and she could not apply for a rehearing.  Hence, her application to me which was the subject of the decision.  Again I am not in a position to say whether she had been so advised all.  I can say is that that was not the fault of the petitioner either. 

4.  She also submitted that it was the fault of the lawyers representing the petitioner in the Family Court not to have reminded the judge that he had not formally pronounced the decree nisi in court.  But I do not think this is a reason which should persuade me to depart from the normal order, namely that costs should follow the event.  Then she relied on her financial position, but lack of means is not normally a sufficient reason to deprive the successful party of costs.  Nor am I satisfied on the evidence before me that she would not be in a position to pay.

5.  Now, the hearing on 28 September was adjourned because the respondent wanted time to deal with the authorities cited in the skeleton submissions prepared by Miss Yip who did not appear below.  She says that the costs of that adjourned hearing was caused by the petitioner’s late skeleton submission.  But the hearing on 28 September was a 30-minute hearing and no skeleton submission was required to be provided.  It was provided in the afternoon of 26 September, as a courtesy to the court and the respondent.  I do not believe that is a reason to deprive the petitioner of the costs of that hearing.  As for the authorities, because they were not familiar to the respondent I thought it right to give the respondent time to deal with them, with a warning that it might add to costs, although Miss Yip was willing not to rely on them.  These authorities simply made the point that:

(i) the current practice is that costs are normally made against a wife; 

(ii) a litigant in person is not entitled to special treatment on costs. 

In all the circumstances, despite my sympathy for the respondent, I believe I should order that the costs of the application as well as the costs of the respondent’s application of 19 July 2005 to be paid by the respondent to the petitioner.  Such costs to be taxed, if not agreed.