XCHRX ANNE ELIZABETH MOORE v. VERNON FRANCIS MOORE

FCMC 4070/90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO. 4070 OF 1990

----------------------

-----------------------

-------------------------

J U D G M E N T

-------------------------

1. This is an appeal by the husband/Respondent in the matrimonial causes against the Order of Master Poon dated 12 June 1999. The appeal came in the following way.

2. By an Order dated 12 March 1999 of H.H. Judge Bruno Chan, the husband/Respondent was ordered to pay the wife's costs of her application for variation of periodical payments. Within one month thereafter, the wife did not produce a bill of taxation. In pursuance of O.62, r.22(1), the husband applied for an Order that the wife should proceed to taxation in accordance with r.21. On 11 May 1999, Master Kwan ordered that the wife should proceed to taxation within 14 days thereof, i.e. the period would expire by 25 May 1999.

3. The Appellant husband submitted that in accordance with r.22(2), the liability to pay costs had been wholly discharged after 25 May 1999. Order 62, r.22(1) and (2) provide as follows :-

" (1) If, within one month after an order of the Court requiring the payment of any costs to be taxed, the person entitled to payment thereof has neither agreed the amount of such costs with the person liable to pay the same nor served upon such person a notice of appointment to tax in accordance with rule 21, the taxing master, on the application of the person liable to pay such costs and on not less than 7 days' notice to the person entitled to payment thereof, may order that the person entitled to payment of the costs shall proceed to taxation in accordance with rule 21 within such period as the taxing master may order.

(2) If within the period ordered by the taxing master or any extension thereof granted by a taxing master, notice of appointment to tax has not been served in accordance with rule 21 and the amount due has not been agreed between the parties, the order of the Court requiring payment of the costs shall thereupon be wholly discharged."

4. However, on 2 June 1999, the wife applied to the Master for extension of time of seven days in order to comply with the Order to proceed to taxation of her costs. Accordingly, Master Poon, as aforesaid, made an Order for extension of time on 12 June 1999 and the time was extended to 4 p.m. on 17 June 1999, and against this Order the Appellant husband appealed.

5. Mr Keane, SC, for the Appellant husband submitted that the Court had no jurisdiction to extend the time since the time expired on 25 May 1999 as aforesaid. It was further submitted that any power to extend time under any rules were only general provisions whereas r.22 on its own was a specific provision to limit the time of extension to an application made before the time had expired.

6. However, I accept the submissions of Mr Harris for the wife/Petitioner. There are general provisions in respect of extension of time.

7. Section 72 of the Interpretation and General Clauses Ordinance, Cap.1 provides :-

"Where in any Ordinance a time is prescribed for doing any act or taking any proceedings and power is given to a court, ... to extend such time ... then the power may be exercised by the court, ... although the application for the same is not made until after the expiration of the time prescribed."

The Rules of the High Court O.3, r.5(1) and (2) provide :-

"(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to any act in any proceedings.

(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period."

8. Quite apart from the aforesaid two provisions, there is a specific provision in Rules of the High Court, O.62, r.16(2) and (3) which provided for extension of time made after the expiration of that period, and they provide as follows :-

"(2) Where an order of the Court specifies a period within which anything is to be done by or before a taxing master, then unless the Court otherwise directs, the taxing master may from time to time extend the period so specified on such terms (if any) as he thinks just.

(3) A taxing master may extend any such period as is referred to in the foregoing provisions of this rule although the application for extension is not made until after the expiration of that period."

9. This clearly gave Master Poon the power to extend the time for lodging the bill of taxation, although the period specified in Master Kwan's Order had expired. Order 62, r.16 and O.3, r.5 are not general earlier enactments and they cover O.62, r.22. Order 62, r.16 specifically applies to anything to be done before a taxing master, whereas O.3, r.5 specifically applies to all of the Rules of the High Court.

10. The position is directly in point in the decision of Patrick Chan J (as he then was) in R. v. Ng Kam Man (No.2) [1996] 3 HKC 241. P. Chan J said at pp.243-244 that :-

"In my view, there is indeed a built-in power in r 22(2) to extend time for the service of the notice of appointment to tax and under r 16, that power can be exercised after the expiration of the period. I do not think there is any inconsistency between r 16 and r 22. If a party has been awarded costs by a court, he has a right to such costs and his right can only be abrogated if it is quite clear that there had been some serious fault on his part. I do not believe that these procedural rules would be so harsh as to do away with the substantive right of a party to an award of costs made by the court. I do not think that can be the intention of the rules. It is true that r 22 provides for the consequence of non-compliance with the rules or court order for the service of the notice of appointment, ie the order for cost shall be wholly discharged. However, as I said, there is the built-in power to grant extension of time in that particular rule - the notice of appointment has to be served within the period ordered by the taxing master or, any extension of time granted by the taxing master. So that ties in with r 16. I do not think that the order for costs would be wholly discharged and that the court is powerless to grant any extension because of any unforeseen event or trivial error resulting in a delay in complying with the order or the rules. That being the case, I think the learned master was quite right. He did have the power to grant an extension of time."

With respect, this case is rightly decided and should be followed. The submissions from Mr Keane that I should depart from this decision cannot be accepted.

11. Accordingly, this appeal is dismissed with costs to the wife Petitioner, to be taxed on party-and-party basis.