TTK v. NPS

FCMC 1889/2021

[2025] HKFC 131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 1889 OF 2021

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RULING

Variation of Costs Order Nisi
(Paper Disposal)

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1.  By a Judgment dated 9 April 2025 (“the Judgment”), I allowed the respondent’s appeal and made an order nisi that there be no order as to costs of the appeal: see TTK v NPS (Appeal Against Master’s Decision (Sale of Property)) [2025] HKFC 68.

2.  Dissatisfied with the costs order, the petitioner seeks to vary it by way of a summons dated 21 May 2025. This is the Ruling by way of paper disposal on the petitioner’s summons.

3.  In this Ruling, I shall refer to the petitioner as “W” and the respondent as “H”. I shall also adopt the same nomenclature used in the Judgment.

4.  The scope of W’s application is a very narrow one. While W is contented with an order that there be no order as to costs of the appeal, she seeks to have the costs of H’s Application for leave (the summons for this application had not been formally filed) to adduce further evidence (“H’s Application”) be awarded in her favour.

5.  This is an interlocutory application on varying a costs order nisi. 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].

Legal Principles

6.  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 be exercised judicially; that is, in accordance with certain accepted principles: F v F (No 2) [2003] 3 HKLRD 976, at [8].

7.  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].

8.  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

9.  W has 3 grounds, viz, (1) costs to follow the event; (2) H’s lackadaisical attitude in conducting these proceedings; and (3) H’s abuse of process.

(1)  Costs to Follow the Event

10.  In respect of this ground, it is submitted by Mr Chan that H’s Application was refused and the court did not appear to rely on H’s Affirmation.

11.  As I said at [34] of the Judgment, paragraph 26 of H’s Affirmation are post-order matters and are not caught by the Ladd v Marshall conditions. However, W, through her counsel, made herself clear that she objected to the admission of the entire affirmation. On that view, H was at least partially successful. The said paragraph 26 was part of the evidence that was before me when I made my deliberation on H’s appeal. Indeed, it was arising from the said paragraph 26 that I made enquiry with H on the rate of the monthly mortgage repayment of the Property.

12.  As is evident in the Judgment, the so-called H’s Application was dealt with as part and partial of the appeal. As said by Hartmann J (as he then was) in F v F (No 2) [2003] 3 HKLRD 976 reiterated, in para 22, “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”. I am sure the court is entitled, as I did, to deal with the costs matter in a broad-brush approach and to consider the costs issue of H’s Application within the appeal.

(2)  H’s Lackadaisical Attitude

13.  Mr Chan submits that costs should be awarded to W due to H’s lackadaisical attitude in conducting these proceedings, including delay in the sale, repeated absence in the hearing below, and the delay in prosecuting the appeal proper and H’s Application.

14.  This ground largely touches upon the costs of the appeal to which W has no application to vary. Insofar as it touches upon H’s Application, as said, the application was heard as part and partial of the appeal. H’s Application itself did not cause any delay resulting in costs being wasted.

(3)  Abuse of Process

15.  It is Mr Chan’s submission that it was an abuse of process by adducing inadmissible new evidence in the form of an unstamped tenancy agreement. The unstamped tenancy agreement was in respect of H’s new residence after he had vacated the Property and was exhibited in H’s Affirmation. Mr Chan submits that H, being leally represented, should not be permitted to mislead the court by adducing inadmissible evidence.

16.  To start with, this point was not raised in the appeal. In any event, Mr Chan has not drawn my attention to the relevant authorities in support of his contention that exhibiting an unstamped tenancy agreement amounts to an abuse of process in the circumstances of this case.

Conclusion

17.  For the reasons aforesaid, I am not persuaded that there is any ground justifying the variation of the costs order nisi. W’s summons must be dismissed and I so order.

Costs

18.  As for the costs of W’s summons, they are to follow the event; and I order that W is to pay H the costs of her summons.

19.  Given the narrowness of W’s summons, I am sure the costs incurred on this has blown way out of proportion of the overall costs involved. The parties have long divorced and the Property has already been sold. There should be a final closure to their dispute as soon as possible.

20.  H has lodged a Statement of Costs for Summary Assessment claiming an extortionate sum of $71,355 for a simple application like this, bearing in mind that W’s summons involved a 15-minute hearing and a 7-page Submissions from each side only. I summarily assess H’s costs at $15,000, payable by W forthwith; and I so order.