S,PJ v. S,CE nee D,CE

FCMC 664/2012

[2022] HKFC 288

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 664 OF 2012

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D E C I S I O N
( Ex Tempore Cost Order Nisi Variation )

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1.  This is an application to vary the Cost Order Nisi made by HHJ Melloy following her Judgment on the Petitioner Husband’s (“H”) application for Variation of Maintenance (the “Judgment”).

2.  The cost order made by Judge Melloy on 22 July 2022 ordered the H to pay for 50% of the W’s cost of and arising out of his Summons dated 12 October 2018.

3.  With reference to an order made on 1 February 2013 (“AR 2013 Order”), H in his Summons dated 12 October 2018 asked for:

(1)  Setting aside or reduction of the maintenance to the child from $6,500 to $0.

(2)  Such Order to be backdated to April 2013.

4.  The Judgment decided that the maintenance is to be reduced to $4,000 and to commence from September 2019, with 6 months of remission over periods when H was not employed.

H’s case

5.  From the H’s solicitors’ submission, H brought up a previous October 2018 Judgment (“2018 Judgment”) and argued that “Issues raised unreasonably or allegations improperly made in a previous discrete application can have no bearing on the exercise of discretion over costs in this application”. In court, H’s solicitors argued that cost order made on that occasion was made based on what happened in that previous proceeding and should not be taken into regard.

6.  H then argued that two points raised by him which were rejected by Judge Melloy were not improperly or unreasonably raised and therefore should not fall under the “Elgindata principles” as exception to costs following the event.

7.  These are:

(1)  His claims the child was spending increased periods of time with him

(2)  His allegation that there was a verbal agreement that maintenance would be reduced as the education costs rose.

8.  In Court, the H’s solicitors say he relies on paragraph 4 of the Elgindata principle, which reads

“iv. that where the successful party raise issues or made allegations improperly or unreasonably the court could not only deprive him of his costs but could also order him to pay the whole or part of the unsuccessful party’s costs.”

And therefore H argued if the points were neither improperly or unreasonably raised, then he should not be ordered to pay the unsuccessful party costs.

9.  H’s position is that there should be no order as to cost.

W’s case

10.  W argues that she was forced into a full trial as a result of the H’s insistence on his position to reduce the child maintenance to $0.

11.  W considers his “open offer” disingenuous as he demands, inter alia, that the $6,500 maintenance be “vacated” from March 2013, the month following the making of the AR 2013 Order.

12.  W argues that there were a number of reasons that justify Judge Melloy making a 50% cost order, namely:

(1)  His argument that he could not pay any back order: Judge Melloy found his argument unacceptable as he had chosen not to pay as early as April 2013 at a time when he was earning a good income and can clearly afford to make payment;

(2)  Judge Melloy found against him in his ask for remitting maintenance payment back to 2013 and only grant remission for a total of 6 months between April 2013 to July 2022;

(3)  Judge Melloy also commented that it is not open to the H to unilaterally reduced the maintenance because he has contributed to some of the child’s other ad hoc expenses.

13.  W also argues that H has taken meritless points, including the abovementioned two points which H argues were not unreasonably or improperly raised.

Discussion

14.  Judge Melloy says in §42 of the Judgment that “neither parties have been wholly successful here”. Therefore, I find H’s reliance on the 4^th limb of the Elgindata principle, which was premised on how to look at costs for successful parties”, to be a wrong starting point.

15.  With regard to the verbal agreement, H produced “not a shred of supporting evidence” (quoting from the W’s submission) for the hearing, and Judge Melloy has already commented on this. In the H’s reply submission, he seeks to argue that: while the J did not find as a fact such an understanding was made, it was not unreasonably made unless it is found to be a fabrication. However, I agree with the W, in that if this is the thrust of the H’s position at the hearing, his seeking to argue this in the complete absence of any supporting evidence is an unreasonable position to take.

16.  With regard to H’s allegation that he should pay $0 as child is spending more time with him. This point is also rejected by Judge Melloy. Whether a child is spending increased time with him must be a matter of fact. To have argued this, is not unlike people putting misleading information in their CV as to job history or education qualification, which is in effect trying to pull wool over people’s eyes on something that is clearly factual and can be disproved. Therefore, I am of the view that this is an improperly and unreasonably raised point.

17.  There must be a clear distinction between taking a weak point versus taking a completely unsupported and meritless point. No doubt court’s time has been wasted in H so doing.

18.  I find the bringing up of the previous 2018 Judgment irrelevant, not only did Judge Melloy not make reference to this 2018 Judgment in the Judgment, I am of the view that in exercising discretion on costs, the Court is generally entitled to look at all previous litigation conduct.

19.  I also make the following observations:

(1)  that the H has unilaterally chosen to be in continuous breach of the AR 2013 Order for which judgment summons proceedings have been taken out

(2)  It is my view that if H’s application is from $6,500 to $0, the fact that Judge Melloy vary his maintenance payment to $4,000 means he lost in his application. This is not a case which falls into “costs should follow the event” scenario.

(3)  Judge Melloy’s decision on maintenance payment in the Judgment was made based on looking at the parties’ financial position de novo, and calculating the sums based on both parties contributing to the child maintenance.

20.  Bearing in mind that the court has full discretion in costs matter, and with specific reference to considerations under Order 62, rule 5(2), I have no doubt that Judge Melloy has taken full account of the background of the parties and the history of the case as she has seizure of this matter from the very beginning, and also from the conduct of the Variation of Maintenance proceedings, to come to her decision.

21.  I see no reason to change the Cost order made by Judge Melloy, and therefore dismiss the H’s variation of costs order nisi application, and order that the Cost Order be made absolute.

22.  Costs of this application to the W, to be taxed if not agreed.