LHYC v. CCL

FCMC 14324 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14324 OF 2013

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DECISION
(Leave to appeal on a costs order)

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Introduction

1.  On 31 October 2014, the petitioner (“wife”) took out a summons for discovery (“Discovery Summons”) on the financial matters of the respondent (“husband”) as follows:

(1) The husband do answer and provide the documents requested under paras 1, 5(b), 8(a), 8(b) and 12(a) of the wife’s 1^st questionnaire filed on 19 June 2014 (“1^st Questionnaire”);

(2) The wife do have leave to file her 2^nd questionnaire dated 5 August 2014 (“2^nd Questionnaire”);

(3) The husband do answer questions 5 – 6 and 11 – 20 of the 2^nd Questionnaire within 14 days. 

2.  Broadly, the Discovery Summons consists of 17 questions with the main theme on the bank withdrawal/transfer from the husband’s accounts allegedly to cover his parents and/or his own expenses. It was returnable on 28 November 2014 before me in a 15-minute’s call-over hearing in respect of the ancillary relief matters of the parties, during which both parties were legally represented.  Upon clarification and discussion with both parties, but without hearing any substantive argument, the following order (only the relevant parts but not verbatim of the order were repeated below) was made:

(1) The wife do formally file and serve questions 17-19 and 20 (as amended) of her 2^nd Questionnaire within 7 days;

(2) The husband do file and serve his reply (to be verified by a statement of truth) within 63 days on:

(a) questions 5(b) and 8(b) of the 1^st Questionnaire in respect of bank transactions of $5,000 or above;

(b) the amended questions 17-20 of the 2^nd Questionnaire;

(3) Costs of the Discovery Summons be in the cause of the ancillary relief matters, and the wife’s own costs be taxed in accordance with Legal Aid Regulations (“Costs Order”).

3.  This is the wife’s application by way of her summons filed on 12 December 2014 for leave to appeal against the Costs Order. At the time of the filing of her summons, she was legally represented.  She is, however, acting in person in this hearing.

4.  There is only one proposed ground of appeal stated in her summons, namely I have exercised my discretion on the Costs Order wrongly.

5.  Before I go to the analysis of the argument, it is necessary to set out the brief and relevant background.

Background facts

6.  The parties were married in 2005.  The wife is now 43 years old and the husband is 39. There is one child of the family, namely a son born in 2010. He is now 5 years old.

7.  In or about July 2012, the husband moved out from the matrimonial home. In October 2013, the wife issued her petition for divorce on the ground of “unreasonable behaviour”. Decree nisi was granted in November 2014. 

8.  By an order of 16 April 2014, the parties have agreed that the custody of the son should be granted to the wife, with reasonable access to the husband.  By a further order of 19 June 2014, they have agreed that the husband should pay interim maintenance for the son in the sum of $7,500 per month with effect from 28 June 2014.

9.  The parties are now on their ancillary relief matters. On the face of it, the matrimonial pot is not very sizable. There is about $620,000, being the sale proceeds of a property, now kept in their joint bank account. The wife owns another flat jointly with her mother, where the wife and the son are now residing.  It was purchased in 2000, which is prior to the marriage. It seems that the downpayment (paid by way of a loan from the bank) and the mortgage repayment were/have been paid by the wife. The husband has already indicated that he does not have any claim in respect of this flat and agreed that it can be totally carved out for consideration in the ancillary relief matters. To him, the issues on ancillary relief are (a) the apportionment of the sale proceeds of about $620,000; and (2) the maintenance for the son.

10.  The wife, on the other hand, is very sceptical of the withdrawal by the husband from his various bank accounts in the year of 2013, in particularly to those withdrawal claiming to cover the medical expenses of the his father (over $80,000), the overseas travel expenses with/ of his parents (about $29,000) and his own daily personal expenses.  She also seems to query why the husband has to bear his parents’ expenses, while his sister is earning stable income and should have shared the same.  The wife insists to see the documentary proof of these expenses and the other bank withdrawals, which, as said above, forms the main theme of her Discovery Summons.   

Applicable legal principles

11.  Section 63(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interest of justice that the appeal should be heard.

12.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

13.  The wife’s appeal is directed to the Costs Order made in the exercise of my discretion. It is trite to say that where the court below exercised a discretion, the appellant court would only intervene when it considered that the judge below had exceeded the generous ambit within which the judicial disagreement was reasonably possible, and was in fact plainly wrong, and not merely because the appellant court preferred a solution which the judge had not chosen (See: G v G [1985] 2 All ER 225; RK v YS, HCMP 1969/2012 (date of judgment: 1 November 2012)).

Ground of appeal

14.  The wife puts forward only one proposed ground of appeal, namely I have exercised my discretion wrongly on the Costs Order.  She argues that I should have ordered either costs in her favour[1], or alternatively, costs be reserved. [2] Her argument runs like this.

15.  First, she refers to a letter from the Family Court to the Director of the Legal Aid dated 24 February 2014, in which I have made the following reply in respect of the costs order of the hearing of 28 November 2014,

“My recollection is that both the costs of the discovery summons and of the 1^st appointment be reserved and in the cause of the Ancillary Relief matters.”

16.  She argues that a “costs reserved” order and a “costs in the cause” order are mutually exclusive.  I have this to clarify. The Costs Order was given on an ex tempore basis.  At the time of the said letter, I have not had the sight of the transcript of the proceedings of 28 November 2014 (“Transcript”). The Transcript was obtained shortly before this hearing. It shows that I have ordered that “costs in the cause of the ancillary relief matters” in respect of the Discovery Summons, but not “costs reserved”. I have already made this clarification to the parties at the beginning of this hearing, which should have cleared away any possible ambiguity that the parties may have arising out of the letter of 24 February 2015.

17.  Second, the wife argues that the Costs Order made by me is contrary to the principle of “costs following the event”.  She points out that it was only after she has taken out the Discovery Summons and in the hearing of 28 November 2014 that the husband was ordered, or agreed, to answer some of the questions of the 1^st and 2^nd Questionnaires. In the circumstances, she submits that,

“…it makes no sense that [she] had to pay for his costs for his failure to comply, despite my request. As such, costs should be ordered in [her] favour.”

18.  She is adamant in saying that a “costs in the cause” order is unfair and unjust to her, as there is a “chance” that she may either have to bear the husband’s costs of the Discovery Summons (in case a cost order is made against her upon the ancillary relief trial), or be unable to recover her costs of the Discovery Summons (in case an order of no costs is made upon settlement or upon the ancillary relief trial). 

19.  The Costs Order now the wife seeks to appeal against is related to an interlocutory application, to which the new Order 62 rule 3, in particular sub-rules (2A), of the RHC applies. In my earlier decision concerning costs of interlocutory applications in TSC v LYK, FCMC 2359/2013, date of decision 22 January 2014, I have referred to the judgment of To J in  Melvin Waxman & Another v Li Fei Yu & Another, HCA 1972/2012, date of judgment 11 September 2013, where His Lordship succinctly summarised the difference in the court’s approach under the new Order 62 rule 3 of the RHC at §11, which I shall repeat below,

“… the introduction of rule 3(2A) specifically applicable to costs in interlocutory proceedings makes it clear that the legislative intent was to distinguish between costs in interlocutory proceedings and costs in other proceedings. Under the new rule 3(2), the general rule of costs to follow the event is preserved for costs in proceedings other interlocutory proceedings. But a different approach is provided under the new rule 3(2A) for costs in interlocutory proceedings. Under this new rule, the court may order costs to follow the event or make such other order as it sees fit. The court is no longer required to apply the general rule of costs following the event except in special circumstances, though that principle remains as one of the options. The court may make such other order as it sees fit. Rule 3(2A) gives the court even wider discretion than that under rule 3(2) in respect of costs in other proceedings.” (my emphasis)

20.  Put in a nutshell, the principle that costs normally follow the event is no longer the prescribed usual order in an interlocutory application but is instead just an option.

21.  The Discovery Summons seeks a reply to about 17 questions, of which the husband has agreed to answer 7 of them, in order to save the time and costs of a substantive argument. The remaining questions were withdrawn, for the reasons that they were no longer necessary, or for re-consideration/re-wording.  In the premises, I cannot see the wife as the party being pre-dominantly successful in the Discovery Summons. As such, the notion of “costs to follow the event” simply does not arise here.

22.  One has to also bear in mind that the Discovery Summons was dealt with on 28 November 2014, being a call-over hearing, without the court hearing any substantial argument on the merits of the application. The husband agreed to answer or re-answer, as the case may be, parts of the questions solely for the purpose of saving costs and time, so that the case could proceed to FDR without delay. As a matter of fact, a FDR hearing was subsequently fixed for 17 March 2014 at the end of the call-over hearing.   In the circumstances, I am not prepared to conclude at this stage that the litigation conduct of the husband is such that the Costs Order should have been made against him.  

23.  Further, in my view, the Costs Order is not unfair to the wife, since the husband is also faced with an equal chance of bearing the costs of the Discovery Summons at the final determination of the ancillary relief matter.

24.  The wife has not persuaded me that I have exercised my discretion on the Costs Order wrongly. Her intended appeal does not have any reasonable prospect of success and thus should be dismissed.

Costs of the leave to appeal

25.  In the hearing, Mr Matthew Ngai, counsel for the husband, submits that in case the wife’s application was dismissed, he asks for costs of the application with certificate for counsel. But in the case if her application for leave to appeal was allowed, he asks for costs to be reserved.

26.  On the part of the wife, she agrees that costs should be reserved if her application was allowed, but objects to bear the husband’s costs of this application if her application was unsuccessful. She submits that she does not have the means to pay for such costs. She also seems to suggest that certificate for counsel should not be granted because of the simplicity of the application.

27.  Before I determine on the question of costs, I need to say a few words on the hearing of 5 January 2015.

(i)    Costs of the hearing of 5 January 2015

28.  The original leave to appeal hearing was fixed, as usual by the registry of the Family Court, for a merely 15-minute’s call-over, which is usually quite insufficient to hear full argument.  Therefore, when it was brought to my attention that such a call-over hearing was fixed for 5 January 2015, I requested on 31 December 2014 that both parties to write to this court on the proposed directions for the call-over hearing and estimated length of their respective submission.  I made it clear that the requested information was for the purpose of saving costs and time.

29.  Upon receipt of the replies from the parties, I directed on 2 January 2015 that the wife’s application for leave to appeal be fixed for argument on 17 March 2015 (with 1 hour reserved). I also gave directions for filing and service of written submission (“Directions”).

30.  To the surprise of this court, the husband and his legal team including his counsel turned up on 5 January 2015.  The wife (by then was acting in person in this application), however, did not appear. The husband’s counsel argued that the Directions have not expressly vacated the call-over hearing; hence, they thought that attendance in the call-over hearing was required. Further, counsel pointed out that in any event the wife had yet to serve a sealed copy Costs Order on the husband, and thus technically, no perfected Costs Order was in place that the wife could appeal against. 

31.  I then asked counsel if he really wished to dwell on technicality, instead of merits, of the wife’s application given that she was unrepresented, he agreed that the focus should be on merits and that his instructing solicitors would draw up and seal the Costs Order.  Direction to that effect was thus given.

32.  Counsel for the husband then asked for costs of the call-over hearing.  I ordered that costs be reserved, as the wife was not present in the hearing to submit her reply on costs, if any.

33.  Although I have already concluded that the wife’s application for leave to appeal should be dismissed, I do not think that I should exercise my discretion to order her to bear the husband’s costs of the call-over hearing of 5 January 2015, for the main reasons as follows:

(1) While the Directions did not expressly say that the call-over hearing of 5 January 2015 would be vacated, it is quite clear that the Directions should be read in the light of and together with my earlier letter of 31 December 2014.  If so, one would have no doubt that the call-over hearing of 5 January 2015 must have been vacated, for the purpose of saving time and costs;

(2) If there was any slightest possible doubt on the part of the husband and/or his solicitors of whether their attendance was required for the call-over hearing, time-and-costs-saving methods for clarification such as a simple follow-up letter to this court or even an enquiry telephone call to my clerk, instead of turning up in court with a full legal team,  should have been adopted; 

(3) Although a technical point on the non-perfected Costs Order was submitted by counsel for the husband in the call-over hearing, the same argument was in the end abandoned.  In the premises, the husband cannot be taken as the winner of that hearing;

(4) A mere call-over hearing, in any event and in such circumstances, does not warrant the attendance of counsel.

34.  Due to the matter aforesaid, I am not prepared to make a costs order of the call-over hearing of 5 January 2015 in favour of the husband. A no order as to costs for that hearing, in my view, is a fair and just costs order.

(ii) Costs of this hearing of 17 March 2015

35.  I take a different view in relation to the costs of the substantive hearing of 17 March 2015. 

36.  The wife has failed in her application. I cannot see why costs should not have followed the event. The nature of the application also justifies the engagement of counsel. Therefore, I will make a costs order in favour of the husband with certificate for counsel.

Conclusion

37.  Due to the matters aforesaid,  I shall make the following order:

(1) The petitioner’s summons for leave to appeal filed on 12 December 2014 is dismissed;

(2) The costs of this application (save and except the hearing of 5 January 2015) be to the respondent, with certificate for counsel, to be summary assessed;

(3) No order as to costs be made in respect of the hearing of 5 January 2015;

(4) For the purpose of the summary assessment, the following directions apply:

(a) The respondent do file and serve his statement of costs within 7 days from the date of this decision;

(b) The petitioner do file and serve her response to the respondent’s statement of costs within 14 days thereafter.

[1] See §18 of the wife’s written submission

[2] See §19 of the wife’s written submission