HCKY formerly known as HKY v. CYL

FCMC 9460 / 2023

[2025] HKFC 153

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9460 OF 2023

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Ruling on Costs
(Paper Disposal)

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1.  This is the determination on the costs issue of the petitioner wife’s application for a non-molestation order under Domestic & Cohabitation Relationships Violence Ordinance (Cap 189).

2.  The wrong case reference has been quoted. The proper case reference should be FCMC 9640/2023.

3.  I shall refer to the Petitioner wife as “W” and the respondent husband as “H”.  I shall refer to the non-molestation order as the “DVO Order”.

4.  This is an interlocutory application.  It has been said by the Court of Appeal that reasons for the decision can be brief: Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759, at [31].

Brief Factual Background

5.  On 19 July 2024, the court granted an interim DVO Order against H, with an authorization of arrest.

6.  On 25 October 2024, the court continued the interim DVO Order (with an authorization of arrest)  and set the application down for trial to take place on 9 May 2025.

7.  On about 24 April 2025 a consent summons was lodged for disposal of the application as a result of the parties having arrived at a settlement.

8.  Court’s requisitions were raised on 24 April 2025.

9.  A fresh consent summons was lodged on 2 May 2025, resulting in a consent order being granted on 7 May 2025.   In brief, the interim DVO Order was replaced by a consent order embodying undertakings given by H.

10.  The trial of 9 May 2025 was vacated.

Legal Principles

11.  In has been said that while, in respect of costs, a court in family matters has a largely unfettered discretion to do what is just in the circumstances, that discretion must of course be exercised judicially; that is, in accordance with certain accepted principles:  F v F (No 2) [2003] 3 HKLRD 976, at [8].

12.  In Hong Kong, the basic principle is that costs are in the court’s discretion: Order 62, rule 3, Rules of the High Court (“RHC”).

13.  In general terms, apart from children’s cases, the starting point on costs in matrimonial and family proceedings, as they are in civil litigations, remain to be “costs follow the event”: Re Elgindata Ltd (No. 2) [1992] 1 WLR 1207; Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233; see also Order 62, rule 3(2)  & (2A), RHC.   That said, it has been opined by the Court of Appeal that because of the special dynamics of family litigation (e.g. where the case involved children, or where financial resources were inadequate to meet the needs of both parties, etc.), the discretion may be broader than in civil matters generally: L v. C, (unreported; CACV No. 169/2006, 9 March, 2008), at [23]. 

14.  Broadly speaking, in the exercise of its discretion in civil cases including matrimonial and family cases, the court will have to take into account, where appropriate in the circumstances, the special matters set out in Order 62, rule 5 of RHC.  It is not necessary to set out the special matters here.  

W’s Grounds

15.  W has three grounds, viz, (1)  W has obtained what she applied for by way of undertakings given by H: Perrine Chamonix Limited v Star League Limited [2017] HKCFI 1638, at [27]; and (2)  as W has already obtained the protection she wanted, it was reasonable for W to have withdrawn her application; and (3)  H was late in offering undertakings for settlement.

H’s Grounds

16.  H has 2 grounds, viz, (1)  W’s allegations against H have never been proved; and (2)  H made various offers to settle the dispute by way of his undertakings,  such offers were made even prior to the mention hearing of 25 October 2024, but all were refused by W.

Discussions

17.  I shall start by disposing of H’s 1^st ground.  H’s ground that W’s allegations against him have never been proved is without merit. It is tantamount to arguing that if W wants costs then no matter what she should have insisted on having a trial. 

18.  I have read the agreed bundle containing the without prejudice correspondence exchanged between the parties. 

19.  There were a few rounds of correspondence attempting to settle the dispute prior to the mention hearing of 25 October 2025 when the court continued the interim DVO Order.  It is not necessary to dwell into the details.  Suffice to say is that H initiated the negotiation on 20 October 2024 by offering undertakings in place of an order. That was rejected by W the next day.   W insisted on having an order with an authorization of arrest.  There followed by another round of correspondence. Parties’ stance remained unchanged.

20.  Then came the hearing of 25 October 2024 in which the parties failed to settle at that time due to (1)  W’s insistence on having an order be granted with an authorization of arrest for her and the children’s protection; and (2)  her disagreement with H’s proposal of no order as to costs.

21.  It has to be pointed out that according to court’s notes, at the hearing of 25 October 2025, Ms Fu of W’s solicitors insisted on having a DVO Order with an authorization of arrest. 

22.  There was then a silence on the matter.  It was not until 8 April 2025 that by a letter W’s solicitors informed H’s solicitors that she agreed to accept H’s undertakings “pursuant to paragraphs 1 to 3 of the Interim DVO Order”.  The letter said, “As indicated at the last injunction hearing on 25 October 2024 before HH Judge I Wong, our client maintains her view to accept your client’s undertaking…”.  I do not know if this statement was made to H’s side out of court on 25 October 2024. Certainly, this statement does not accord with the court’s notes referred to above.

23.  The proposal was readily taken up by H and a consent summons was lodged to court after a few rounds of amendments between the parties.

24.  In my view, there was a lapse of nearly 6 months after the hearing of 25 October 2024 up to 8 April 2025 during which both parties should have taken up the initiative of negotiating for a settlement and extra costs in preparing for trial were incurred.  Both were to blame for the delay.

25.  As said, the consent order that disposed of the dispute was by way of undertakings, the contents of which were not much different from the interim DVO Order of 25 October 2024. It is inexplicable as to why W had a change of stance when she insisted on having an order with an authorization of arrest on 25 October 2024. 

26.  I now come to the most important point.  W argues that she has obtained what she applied for by way of undertakings given by H.  However, it is important to note that the undertakings were the remedy that had been offered by H even prior to the hearing of 25 October 2024 but were only accepted by W shortly before the trial.  As a result of W’s rejection, the application had to be set down for trial and more costs were incurred.  On that view, W should have accepted the offer on 25 October 2025.   Hence, I agree with H’s 2^nd ground and have to reject W’s 1^st and 2^nd grounds.

27.  Lastly, I have to take into consideration the fact that H did not appeal against the interim DVO orders of 19 July 2024 and 25 October 2024. On that view, W may be considered as the winning party.

28.  Hartmann J, (as he then was), said in para 22 of  F v F (No 2) [2003] 3 HKLRD 976 that “the long-established principle that costs are determined not by dividing litigation into quantifiable subjects and figures, like a profit and loss account, but rather by way of overall impression” is a timely reminder.

29.  Considering all the above matters in the round, I consider in all fairness the proper costs order is no order as to costs (including all costs reserved and the costs of the costs issue); and I so order. The W’s own costs to be taxed in accordance with Legal Aid Regulations.