WKH v. XYZ

FCMC 5371/ 2021

[2021] HKFC 253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5371 OF 2021

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BETWEEN

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Application for Variation of Costs Order Nisi

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1.  By the Judgment dated 22 October 2021, the respondent mother (‘Mother’)’s application by way of two summonses both filed on 31 August 2021, respectively for leave to appeal against the order dated 16 August 2021, by which it was ordered that the Mother do return the child of the family from PRC to Hong Kong on or before 30 August 2021, and to adduce fresh evidence and stay of execution, was dismissed with order nisi that the Mother do pay the petitioner father (‘Father’)’s costs of her two summonses both filed on 31 August 2021 including reserved costs with certificate for counsel.

2.  This is the disposal of the Mother’s and the Father’s summonses both filed on 5 November 2021 for variation of the costs order nisi dated 22 October 2021.

3.  The court has a wide discretion as to costs. Under Order 62 rule 5(1) the court shall take into account: Under rule 5(1)(aa) the underlying objectives set out in Order 1A rule 1; Under rule 5(1)(d) any written without prejudice save as to costs offer; Under rule 5(1)(e) the conduct of the parties; Under rule 5(1)(f) whether a party has succeeded on part of his case even if he has not been wholly successful; Under rule 5(1)(g) any admissible offer to settle made by a party. Rule 5(2) provides that conduct for this purpose includes (a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (b) the manner in which a party has pursued or defended his case or a particular allegation or issue; (c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and (d) conduct before, as well as during, the proceedings.

4.  The Mother prays for no order as to costs of her two summonses both filed on 31 August 2021. About the Mother’s application, I take into consideration: -

(i) The Father is clearly wholly successful in both summonses filed on 31 August 2021;

(ii) Despite counsel for the Mother’s arguments to the contrary, I take the view that there are no special features that would militate against costs order to be granted in favour of the Father being the successful party;

(iii) As per solicitors for the Father’s submission, the contention that, this being a children matter, the usual costs order should be no order as to costs is misconceived. Inasmuch as this matter relates to the Mother’s application for leave to appeal, there is no usual costs order of ‘no order as to costs’.

5.  Accordingly, it is ordered that the Mother’s summons filed on 5 November 2021 be dismissed.

6.  I now turn to the Father’s summons filed on 5 November 2021, by which the Father prays for an order that the Mother do pay the Father’s costs of the two summonses both dated 31 August 2021 from the afternoon session of the trial on 17 September 2021 onwards on indemnity basis. The above application is said to be based on the written offer from the Father dated 16 September 2021, and the fact that the Mother has failed to beat the said written offer. By the said written offer dated 16 September 2021, the Father was prepared to accept no order as to costs in global settlement of the Father’s summons filed on 23 August 2021 and the Mother’s two summonses both filed on 31 August 2021, if the Mother do return the child of the family to Hong Kong within 14 days thereof.

7.  Under Order 62 r. 28(3) the court may award costs on an indemnity basis. Counsel for the Mother referred the court to TPL v. WXY (Unreported, CACV 47 & 61/2014, 15/12/2014) per Yuen JA §§14-15 and Town Planning Board v Society for Protection of the Harbour Limited (2004) 7 HKCFAR 114.

8.  A summary of the legal principles on indemnity costs can also be seen in the commentary of Hong Kong Civil Procedure 2021, 62/App/12 :

“The Court of Appeal in Choy Yee Chun (The Representative of the state of Chan Pui Yiu) v. Bond Star Development Ltd [1997] H.K.L.R.D. 1327, CA reviewed the cases and summarised the law as follows. A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s cost on the indemnity basis. However, the circumstances in which an indemnity award might properly be made were not restricted to circumstances beyond the requirement that taxation on an indemnity basis must be “appropriate”. The principle for the award of an order of costs on an indemnity basis applied equally to those who not only instituted proceedings but who defended them. If a plaintiff had been forced to institute proceedings by the defendant whose conduct had been not only hostile in the normal litigious sense, but oppressive and with base ulterior motive, and if the pursuit of a defence constituted conduct which was part of an oppressive game plan, then invocation of the power to award costs on an indemnity basis might well be justified”.

9.  In the present case, broadly speaking, it seems to me that this is a situation where the parties each believed, rightly or wrongly, that they had an arguable case and each simply fought their corner hard. Looking at the matter in the round, I reject the Father’s application for costs from the afternoon session of the trial on 17 September 2021 onwards on indemnity basis.

10.  According, it is ordered that the Father’s summons filed on 5 November 2021 be dismissed

11.  Both parties fail in their present application. All things considered, it is ordered that there be no order as to costs of the two summonses filed on 5 November 2021, including reserved costs.