NPYJ v. SMRC

CAMP 255 /2020

[2021] HKCA 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 255 OF 2020

(ON AN INTENDED APPEAL FROM FCMC NO 9098 OF 2018)

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DECISION ON COSTS

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Hon Kwan VP (giving the Decision on Costs of the Court):

1.  On 22 February 2021, we handed down our judgment dismissing the respondent’s (“the Father’s”) application for leave to appeal against two orders made by Her Honour Judge Grace Chan in the exercise of her case management powers in respect of a number of applications taken out by the Father relating to the children of the family. We also dismissed his stay for execution of the judge’s order of 28 October 2020 pending appeal. We made an order nisi that the Father is to pay the petitioner’s (“the Mother’s”) costs of his summons before us, and this order will be made absolute if no application to vary is made within 14 days of the handing down of our judgment.

2.  On 5 March 2021, the Father filed a summons and a supporting affidavit to apply for variation of the costs order nisi such that the Mother is to pay his costs of his leave application or that there should be no order as to costs.  He also sought to amend our judgment on 22 February 2021 in two respects under the ‘slip rule’.

3.  Kwan VP directed on 9 March 2021 that the Father’s aforesaid summons is to be dealt with on paper, that the Father’s affidavit on 5 March is to stand as his submission and that the Mother is to have leave to lodge a submission in answer. The Mother lodged her submission on 22 March.

4.  On 12 March 2021, the Mother lodged her statement of costs pursuant to the directions on 22 February and the Father lodged his objections to the statement of costs on 25 March.

Application for variation of costs order nisi

5.  The Father put forward these grounds in seeking variation of the costs order nisi:

(1)     the Mother is in breach of the Consent Order dated 4 July 2019 (“Consent Order”) which necessitated his various applications;

(2)     the Mother failed to comply with the direction of the Registrar of Civil Appeals dated 6 January 2021 as she did not serve a statement in opposition; and

(3)     the judgment of 22 February 2021 does not refer to certain “material reference” to the transcript of the hearing before the judge on 29 September 2020 which was referenced in the Father’s statement dated 22 January 2021.

6.  None of these grounds are of merit.

7.  As to ground (1), the available evidence is quite simply insufficient to establish that any failure to comply with Consent Order was caused by any deliberate act of the Mother.  As mentioned in our judgment of 22 February 2021 at §7, the children had refused to meet the Father in the two access sessions in July 2019 and no further access session could be arranged due to the children’s unwillingness to meet the Father.

8.  Ground (2) is wholly immaterial.  The Mother did serve a skeleton submission in opposition of his renewed application for leave to appeal on 6 January 2021.

9.  As for ground (3), this court has considered the transcript of the hearing on 29 September 2020 as stated in our judgment at §§32 to 33.  That we did not specifically mention what the Father regarded as “material reference” on page 93 of the transcript is of no consequence. The Father is merely seeking to re-argue the merits of his leave application.

10.  There is no reason whatsoever to depart from the usual rule that the Father should bear the costs of his unsuccessful leave application, which is entirely without merit. We therefore make absolute the costs order nisi on 22 February 2021.

Summary assessment of costs

11.  The Mother’s statement of costs is for a total sum of $9,600, including 30 hours for preparation of documents and 15 hours for perusal.  The Father objected to these items as excessive.  He suggested allowing no more than three hours for each.  We will allow a total of 20 hours for preparation of documents and perusal.

12.  The Father also objected to an item of $200 being “attendances to court”, claiming that this should be disallowed as the application was by paper disposal and no hearing was held.  We allow this item in full as the Mother had to attend court to lodge any document she was directed to lodge.

13.  The amount of reasonable costs assessed on a gross sum basis in respect of the Father’s leave application is $4,300.

Amendment of judgment under the slip rule

14.  The Father asked the court to make two amendments to the judgment of 22 February 2021.  First, he stated that the date of 22 January 2021 should be included in the dates of written submissions on page 1.  Second, the word “temporal” in paragraph 8 should read “temporary”.  Neither of these has any impact on the judgment and it is a sheer waste of the court’s time to be asked to deal with this.

15.  There was good reason not to mention the Father’s statement or submission dated 22 January 2021.  He had served a statement in support of his leave application dated 23 December 2020, which is of 11 pages and exceeded the five-page limit in Practice Direction 4.1 §8.  The Mother responded to this statement and served her submission on 6 January 2021 of seven pages, also exceeding the page limit.  The Registrar then gave directions that the Father should revise his statement and lodge a statement not exceeding the page limit, which the Father complied with by his statement of 22 January 2021.  The Mother did not lodge any revised statement in response.  It was for this reason that only the earlier statements of the parties were mentioned.  The revised statement of the Father, which was also considered by this court, did not add anything of significance not contained in his earlier statement.

16.  We decline to exercise our discretion to make any amendment as requested.

17.  We repeat our warning in §42 of our judgment that the Father should desist from making applications that are unnecessary, failing which the court may consider making a restricted application order against him.

Costs of the application to vary the costs order nisi

18.  We order the Father to pay the Mother’s costs of this summons and make an order for gross sum assessment of $500 in her favour.  This costs order and gross sum assessment are in the nature of orders nisi.  If there is no application to vary within 14 days of the handing down of this decision on costs, the orders will be made absolute.