WOL v. CKC

FCMC 9488/2018

[2021] HKFC 221

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 9488 OF 2018

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R U L I N G

( Costs of the Main Suit )

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The Issue

1.  The is the ruling on the costs of the wife’s petition for divorce on the ground of unreasonable behaviour.  For the ease of reference, I shall refer to the petitioner as “the wife”, the respondent as “the husband” and the wife’s petition for divorce as “the Petition”.

Background

2.  The Petition was taken out on 26 July 2018.  To this, the husband filed an Answer (without any Cross-Petition)  on 9 October 2018 seeking the dismissal of the Petition.  Apart from denying the allegations as regards his unreasonable behaviour, it was his case that his marriage with the wife had not broken down irretrievably.  He sought reconciliation with the wife.  In response, the wife filed a Reply on 9 November 2018.

3.  With the lapse of time, by about April 2020 the parties had already separated for 2 years.  The Petition was allowed to be withdrawn on 27 May 2021 upon the wife’s application dated 23 March 2021 so that the wife could take out another petition for divorce on the ground of 2 years’ separation.  The wife duly did so on 4 June 2021 (under case no FCMC 5409/2021)  and obtained a decree nisi on 30 September 2021.

4.  It has to be mentioned that by the time of the withdrawal the parties had exchanged their pleadings only.  No affirmations had been filed nor any further steps in the proceedings had ever been taken.  The husband agreed to the withdrawal so that the wife might rely upon the two years’ separation ground but he insisted that the wife should pay him the costs of the main suit.

5.  The wife’s stance up to the substantive hearing of 27 October 2021 was that there should be no order as to costs.  At the substantive hearing, the wife, via her counsel Ms Kwong, has altered her position somewhat in that she seeks costs against the husband as from 8 July 2020; and as regards the costs before 8 July 2020, there should be no order as to costs. 

The Applicable Legal Principles

6.  There is no dispute over the relevant legal principles.  Both Ms Kwong and Mr Leung refer to my judgment in LHC v KHS FCMC 87/2014, FCMC 3343/2017 (date of judgment: 7 August 2017).  At [16] to [18] I said,

16.  In Hong Kong, the basic principle is that costs are in the court’s discretion: Order 62, rule 3, RHC.

17.  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 (eg 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 169/2006, 9 March, 2008), at §23. 

18.  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 for me to set out the special matters here. 

7.  I would also add that Hartmann J (as he then was)  in F v F (No 2) [2003] 3 HKLRD 976, made the point at [22] that, “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”.

The Wife’s Case

8.  Ms Kwong submits that the wife is the winner.  All along she sought a divorce.  Eventually, she obtained what she had sought for.  This has to be contrasted with the husband’s stance maintained by him throughout that he did not want a divorce.

9.  It is also Ms Kwong’s submission that the husband’s refusal to give his consent to divorce on the ground of one-year separation is an unscrupulous litigation conduct. 

The Husband’s Case

10.  Mr Leung, on behalf of the husband, accepts that all allegations stated in the Petition and the subsequent pleadings were not tried (ie no trial and no finding of facts by the court)  and no evidence was ever filed nor any submissions were made in this regard, in that sense neither party should be considered as successful. Nevertheless, so submitted by Mr Leung, the husband is the winner because he asked for the dismissal of the Petition in his Answer.  The wife should be considered as an unsuccessful party when she applied for leave to withdraw and to file a fresh petition under 2 years’ separation instead of continuing the existing ground of unreasonable behaviour. 

11.  In response, Ms Kwong argues that leave being given for the wife to withdraw the Petition is fundamentally different from dismissal.  The husband did not succeed in getting the Petition dismissed.  The husband did not continue to oppose the wife’s application and obtained a positive reply by way of having the Petition dismissed.  It is also highlighted by Ms Kwong that the husband indeed agreed to the withdrawal.

Discussion

12.  At all times, the wife’s goal is to divorce with the husband. On the other hand, the husband wished reconciliation and did not agree to divorce, and for that matter, on any ground.

13.  As I pointed out in LHC v KHS, supra, the sole ground for divorce is the marriage has broken down irretrievably.  A petitioner may obtain a decree of divorce by proving one of the five facts set out in section 11A(2)  of the Matrimonial Causes Ordinance (Cap 179).  “Unreasonable behaviour” is one of the five facts and itself is not a “cause of action” as such: see [28] and [29].

14.  I emphatically said in DA v SY, FCMC 14138/2014 (date of Judgment: 13 July 2017)  that family litigation has some unique features that distinguishes itself from general civil litigation.  Family proceedings deal with not only rights but also more importantly issues on a most personal level, specifically, the “status” of the parties and one’s family or parenting relationships with other members of the family.  Matrimonial proceedings are of even great consequences since they affect essentially all aspects of parties’ family life: their marital status, the welfare of their children and their assets. The breakdown of one’s marriage could be emotionally taunting and stressful. Some people may regard failure in marriage is a defeat at the most personal level or the end of the world; and so try to avoid it, if possible: see [54] and [55].

15.  I do acknowledge that the husband might have been genuinely aggrieved by the allegations of his unreasonable behaviour and might have wished to exonerate himself from the accusations.  He did not see his marriage had come to an end. On the other hand, the wife might have wanted to extricate herself from the relationship on the ground that she genuinely believed was available to her at the relevant time. 

16.  With the passage of time, when the parties had separated for 2 years, the wife would be able to get a divorce on that ground, irrespective of whether the husband agreed to or not.  The wife had two options open to her.  Her divorce with the husband could be achieved by proving her claim of the husband’s unreasonable behaviour or by relying upon 2 years’ separation.  It is trite that where 2 years’ separation is relied upon, there is no question of an inquiry into fault of the parties. In my view, the wife sensibly turned to 2 years’ separation as a result of which much costs and time and most importantly avoiding further fuel to be added to the agony of the parties arising from the breakdown of their relationship.  Where 2 years’ separation and some other grounds may be relied upon, the “2 years’ separation” ground is preferred.  Rayden and Jackson on Relationship Breakdown, Finances and Children cited Grenfell v Grenfell [1978] Fam 128, [1978] 1 All ER 561 and commented at [6.304] that,

“… Where the respondent to a petition founded on adultery, behaviour or desertion alleges five years’ separation (note: equivalent to Hong Kong’s 2 years’ separation ground)  which the petitioner admits in the reply, the court should first determine whether the five years’ separation is established and, if so, grant a decree on that fact”.

17.  I would add that even if the wife had not done what she did, for the reasons aforesaid the court would have raised this option on its own motion.  I even venture to say that if the wife had insisted on the unreasonable behaviour ground and refused to rely upon the 2 years’ separation and proceeded to trial, she would have faced the risk of not having any costs in her favour or having an adverse costs order made against her even if she were to succeed.  This is definitely in line with the prevailing sentiment as to how the main suit should be conducted. 

18.  I do not think it is necessary for me to conduct a forensic examination of the parties’ correspondences and Statement of Factual Issues in Dispute as undertaken by the husband in his affirmation in opposition.  In this regard, I find that the husband’s affirmation is unnecessarily lengthy.  Similarly, I also take the view that it is not necessary for the wife to give a reply to many of the allegations raised by the husband. 

19.  There are arguments regarding whether the husband ought to have accepted “one-year separation” as the ground.  I do not find it relevant or material to the issue of costs here.  As I see it, the husband was quite entitled to withhold his consent when, according to him, he wanted reconciliation with the wife.  The husband should not be penalized for not giving his consent.  It is also unnecessary for me to deal with whether or not the particulars of unreasonable behaviour pleaded by the wife are unnecessarily aggressive.  It is not Mr Leung’s case that at the material times there was suggestion that the allegations of “unreasonable behaviour” were to be water-down in exchange for an uncontested outcome.

20.  As said above, the wife seeks costs against the husband for those incurred as from 8 July 2020.  The wife raised this issue for the first time at the substantive hearing.  It was not mentioned in any of her affirmations nor was it in Ms Kwong’s written submissions.  On why the husband should bear these costs, Ms Kwong’s reason is simply that it was on that day the wife made an offer to the husband that, for the purpose of saving time and costs, the ground for divorce be changed to 2 years’ separation with no order as to costs, but that was flatly rejected by the husband. 

21.  I fail to see why the wife is entitled to these costs.  First, it was not so prayed in her summons dated 23 March 2021.  Secondly, there is no explanation from the wife on why she had waited for nearly a year before she took out the summons. 

Orders

22.  For the above reasons, and considering the matter in the round, I consider the appropriate costs order is no order as to costs of the main suit (including all costs reserved)  and I so order.

Costs

23.  There is no reason why the husband should not bear the costs of the issue of costs. I make an order nisi that the costs on the determination of the issue of costs of the main suit be borne by the husband, with counsel certificate.