LFW v. LSH AND OTHERS

FCMC 237 /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 237 OF 2013

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D E C I S I O N
(Review of Costs)

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Introduction

1. On 9 October 2015, this Court handed down a Judgment on the Respondent Wife’s (“Wife”) application for maintenance pending suit (“MPS”) whereby the Petitioner Husband (“Husband”) was ordered to pay MPS in the sum of $4,800 a month (subject to any Director of Legal Aid’s First Charge that is applicable) commencing 1 November 2015 and thereafter on or before the 1^st day of each succeeding month until further order.  At the trial of the MPS, the Husband was represented by Messrs. Raymond Cheung and Chan, solicitors (“RCC”).

2. This Court also made a costs order nisi that there be no Order as to costs of the application save and except the Wife’s own costs be taxed in accordance with Legal Aid Regulations (“Costs Order”). 

3. On 20 October 2015, the Wife took out a Summons seeking variation of the Costs Order in the following terms :-

“The costs order nisi granted under paragraph 34(c) of the Judgment handed down on 9^th October 2015 be varied to the effect that ’50% costs of and incidental to the Respondent’s application for maintenance pending suit including the costs previously reserved be paid by the Petitioner to the Respondent, with certificate for counsel, to be taxed if not agreed, on a party and party basis”

4. On 5 November 2015, RCC took out a Summons seeking leave to appeal against the Judgment dated 9 October 2015 and, insofar as the Costs Order is concerned, the Husband sought :-

“That paragraph 3 of the Order of Deputy District Judge G. Own dated 9^th October 2015 in respect of the costs of the Application shall stand or/further or alternative, the said paragraph 3 shall be varied to the effect that costs of the Application including all costs reserved be to the Petitioner.”

5. The Husband’s Summons seeking leave to appeal was scheduled for hearing on 25 April 2016.

6. On 17 November 2015, the Husband filed a Notice to Act in Person in place of RCC. However and surprisingly, it is noted that the address for service in such Notice is the same office address of RCC.  It is also noted that on the back page of such Written Skeleton Submissions of the Husband filed for this hearing, RCC’s address was used as his address.  The contents of such Written Skeleton Submissions are clearly drafted by lawyers.

7. At today’s hearing, the Husband appeared by himself and the Wife is legally aided and represented by Counsel Miss Yanky Lam who also appeared in the MPS trial.

The Wife’s Application

8. It is the Wife’s case that although the amount of MPS eventually awarded after trial was $4,800 per month which was no way close to the amount she sought in the application, namely, $11,370 per month, she would not have obtained any MPS at all if she did not take out the application.  Reason being that the Husband simply made no reply whatsoever to her lawyers’ letter dated 9 March 2015 which was sent prior to taking out the application.  The Wife’s application might be avoided if the Husband had given his reply or had made any reasonable counter proposal as to the amount of the MPS sought by her.

9. At present even with the Court Order, the Husband so far had not paid any MPS as ordered by the Court after trial.

10. Counsel Miss Lam confirmed no case law or authorities would be relied upon for this Review hearing since costs are always and entirely within the Court’s discretion

The Husband’s Opposition

11. The Husband in his Written Skeleton Submissions referred to a sanctioned offer dated 23 July 2014 made by way of letter by his former lawyers RCC to settle the whole claim (my emphasis) of the Wife in the following terms :-

“Our client will pay your client monthly periodic payment in the sum of HK$15,000 per month with no order as to costs.”

12. Since the time for acceptance of the sanctioned offer lapsed on 20 August 2014 (that is, within 28 days), the Husband submitted that the Wife’s MPS application and other related applications such as the Section 17 application, are all ‘satellite’ litigations taken out by the Wife with intent to drag upon the matter and to increase the costs of litigation.

The Court’s View

13. According to the records, the Wife’s lawyers filed a “Form A” notice on 15 October 2013 seeking all reliefs under the prescribed form, namely, items (a) to (g) in the form which includes, inter alia, MPS.

14. On 21 October 2013, the Wife’s lawyers filed a Notice of Application for Ancillary Reliefs seeking property transfer orders in respect of 4 landed properties (all with addresses stated) and also the structures erected thereon. 

15. The Husband’s intention to settle the ‘whole claim’ of the Wife on 23 July 2014 through the sanctioned offer process by offering a periodical payment of $15,000 a month was, in my view, made with reference to the said 2 notices dated 15 and 21 October 2013.

16. Whilst it is open for the Husband to propose whatever settlement terms, it is equally open for the Wife to accept or decline any terms of settlement whether made by way of without prejudice proposals or through process of sanctioned offers or payments within the precepts of the procedural rules. 

17. In my decision, the non acceptance of the Husband’s sanctioned offer could not operate as any bar to any application properly taken out by the Wife under the rules of procedure which include maintenance pending suit.  The Husband had not been able to further substantiate what ‘satellite’ litigation actually mean.  Thus, the Husband’s contention is completely misconceived.

18. As to the Wife’s contention of ‘but for’ the MPS application, no maintenance pending suit would be provided for by the Husband who had made no reply to her lawyers’ letter dated 9 March 2015.  Eventually the MPS Summons was issued on 20 March 2015.

19. The Husband filed his Form Es on 9 December 2013 and 24 January 2014.  The Wife filed her Form E on 25 January 2014.  There were a series of exchange of questionnaires and answers over the Form E before the Wife’s lawyers’ sent off their letter dated 9 March 2015 proposing $11,450 a month as MPS or seeking $11,370 a month in the subsequent MPS Summons dated 20^th March 2015.  It is noted that the financial disclosure had been completed by the time of the letter dated 9 March 2015 if not earlier.

20. I agree with Counsel Miss Lam that the absence of any reply from the Husband to the Wife’s letter dated 9 March 2015 triggered the need of a Summons for MPS. However, the Wife with the aid of lawyers throughout knowing the law governing maintenance pending suit as well as the factual situation of ‘reasonable needs’ of payee and ‘ability to pay’ of payer after completion of financial disclosure including questionnaires and answers, nevertheless sought an amount roughly equals to 2.4 times of the amount eventually ordered by the Court, could hardly be awarded costs even succeed in the application.

21. In my view, a party seeking financial orders grossly in excess of what could reasonably be expected to get is at his or her own risks of not recovering the costs of the application.  Otherwise, the opposing party would be deterred from defending unreasonable amount of claim for fear of losing costs even if success in defending any amount in question which had been inflated. 

22. For these reasons, I do not agree to vary the costs order nisi dated 9 October 2015.  I also do not see any complexity or other basis for granting Certificate for Counsel for the MPS trial.

23. Accordingly, the Wife’s Summons to vary the costs order nisi dated 9 October 2015 fails.

Orders

24. I now grant the following Orders :-

(a)  The Wife’s (Respondent’s) Summons dated 20 October 2015 be dismissed;

(b)  There be no Order as to costs of this application;

(c)  The Wife’s (Respondent’s) own costs be taxed in accordance with Legal Aid Regulations.