TCTE v. SM

HCMP 1080/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1080 OF 2012

(ON AN INTENDED APPEAL FROM FCMP NO 98 OF 2010)

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DECISION

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Hon Kwan JA:

1. This is the applicant’s application for leave to appeal a ruling on costs given by HH Judge Melloy on 14 February 2012 (“the Costs Ruling”) after a full hearing on 6 February 2012. Pursuant to the powers of this court under Order 59 rule 2A(5)(a) of the Rules of the High Court, the application is determined on the basis of the statement in support without an oral hearing. The respondent has not filed a statement in opposition.

2. The Costs Ruling arose out of a costs order nisi made by the judge in an application for the maintenance of a child under section 10 of the Guardianship of Minors Ordinance, Cap 13 heard by the judge in July 2011. Judgment was given on 22 August 2011. The respondent was ordered to pay the applicant periodical payments of HK$20,000 per month as maintenance for the child as from 11 September 2011 until the child reaches the age of 18 years or ceases full time education, whichever is the later. He was also ordered to pay the applicant a lump sum of HK$298,860.50 by 4 instalments. The judge made an order nisi there be no order as to costs.

3. Both parties sought to vary the costs order nisi. By the Costs Ruling, the judge affirmed the order nisi that there be no order as to costs for the substantive application for maintenance and ordered that (1) in respect of the applicant’s summons dated 22 December 2010 for interim maintenance for the child, the respondent do pay 1/3 of the applicant’s party and party costs, with certificate for counsel; and (2) for the costs of and occasioned by the hearing on 6 February 2012 to vary the costs order nisi, the respondent do pay 1/3 of the applicant’s costs, with certificate for one counsel.

4. The applicant sought leave to appeal the Costs Ruling, contending that it should be set aside and the respondent should pay her costs below including all costs reserved. The judge heard the application on 16 May 2012 and refused leave in a ruling of the same day (“the Leave Ruling”).

5. The applicant renewed her application to this court for leave to appeal.

6. Under section 63A(2) of the District Court Ordinance, Cap. 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard. The applicant relies only on the first limb. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

7. The principles regarding an appeal relating to the exercise of a judicial discretion on costs are well established and require no repetition (Hong Kong Civil Procedure 2012, Vol 1, paras 59/0/54 and 62/2/11; KWKM  nee WKM v KSW, CACV 432/2006, 15 June 2007, para 11). As the judge had said in paragraph 5 of the Leave Ruling, the appeal court will not interfere with the exercise of a judge’s discretion in the award of costs unless it can be shown that the discretion has clearly been exercised incorrectly, or that the judge has erred in law or in relation to a certain legal principle.

8. The judge accepted that the applicant is prima facie entitled to her costs but penalised her basically for litigation misconduct. In paragraph 16 of the Costs Ruling, it was stated that “many of [the applicant’s] claims were exaggerated and largely without basis” and although the judge accepted some of the applicant’s arguments could be regarded as “putting her case at its highest”, “others fell perilously close to material non disclosure and simple blatant untruths”. In paragraph 6 of the Leave Ruling, the judge stated, for the avoidance of doubt, that she believed the applicant’s case was “concocted in part” for the purpose of this litigation.

9. In seeking leave to appeal before the judge, the argument was advanced that there is a difference between a concocted claim and an exaggerated claim and that the court must be astute to measure how reprehensible the conduct is. The judge’s assessment was that “this case was very much in the higher echelons of that scale when looking at the litigation conduct overall.”

10. I cannot discern any basis to interfere with the judge’s assessment of the litigation conduct of the applicant.

11. The statement in support of the leave application placed before this court is substantially the same as that considered by the judge. I can detect no error in principle in the judge’s exercise of discretion on costs, or any basis for interfering with her discretion.

12. The applicant has not satisfied the threshold test for leave to appeal to be granted. This application is accordingly dismissed.

13. As the application is entirely without merit, I would make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

14. As the respondent has not taken part in the renewed application, there would be no order as to the costs of this application.

Hon Chu JA:

15. I agree.