YCM v. LJ

FCMC 6812/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6812 OF 2016

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D E C I S I O N
(C O S T S)

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1.  This is a hearing of the Respondent (“the wife”)’s application for variation of the costs order nisi dated 13 March 2017 in which she was granted half of the costs of the said hearing against the Petitioner (“the husband”).   It is her case that she should be given the full costs of the hearing, or at least a much higher portion than half of the costs.

2.  The husband agrees that he should share some of the costs but as he does not know the amount of the wife’s costs being incurred, he could not give a concrete figure on his proper share of those costs.

Brief introduction

3.  The issue of discovery arose out of the wife’s application for ancillary relief against the husband.   In order to gain more information on the husband’s financial circumstances, the wife’s solicitors issued a draft questionnaire to which the husband refused to answer. Therefore, a hearing was fixed on 6 March 2017 on which the wife’s draft questionnaire was fully argued in court.  After hearing the parties’ submissions and in the Decision handed down on 13 March 2017, this court ordered the husband to answer most, if not all of the questions.  Out of a total of 15 questions, only Question 4, part of Question 8, parts of Question 11 and Question 15 were ordered not to be answered.

4.  At the end of the Decision, I ordered the husband to pay half of the costs of the hearing on 6 March 2017. 

5.  It is now the wife’s case that she was the real winner of the application and the mere fact that a few of the questions were being rejected should not affect her entitlement to full costs of the hearing. The wife now asks for this costs order to be varied, either to full costs or at least a higher portion than 50%.

Discussion

6.  At the hearing, I was referred to the case of F v F (No.2) [2003] 3 HKLRD 976, (per Hartmann J (as he then was)) in which it was ruled that the court should not award costs based on the number of issues being successful, the success of each issue raised, or how much time was spent with the issue, but rather, it should look at the overall impression of the case.    In Commissioner of Inland Revenue v HIT Finance (Judgment on Costs) (FACV Nos. 8 and 16 of 2007), a similar point was raised and Bokhary J ruled that the real winner should have the costs of the application except if and when it appears to the court that in all the circumstances some other order as to costs should be made.

7.  Looking at the result of the discovery application, I note that only 4 questions out of a total of 15 were refused. Out of these 4 refused questions, 2 were full questions while the other 2 were only partially refused.  Therefore, in terms of the number of questions being ordered to be answered, I accept that the wife had succeeded in a vast majority of the questions.

8.  As to the overall impression of the case, I accept that the husband has all along adopted a rather uncooperative attitude in terms of discovery.  In filling his Form E, he chose to leave out many fundamental information and documents.  For example, he did not give 12 months of bank statements, 3 months of credit card statements, statements from his Singapore Central Provident Fund and Australian superannuation fund, and details concerning the purchase of a Singaporean property.  All these are necessary information on his financial circumstances, without which the taking out of a questionnaire by the wife has become necessary.

9.  In court, or even at today’s hearing when he had already been ordered to answer most of the questions in the questionnaire, he still submitted to this court with some conviction that he had no duty to assist the wife’s case howsoever.  But we all know that an important feature of financial applications in family litigation is that both parties have a continuing duty to give full and frank disclosure of all their relevant financial information. The husband’s somewhat misconceived attitude might have explained why he had been so reluctant in giving those financial information, not even after he has been ordered to do so by this court.  I was told by Ms Hung that even after the court’s order on discovery has been made, the husband has failed to comply and therefore, committal proceedings have to be considered.    

10.  After reconsidering all the circumstances of this case, in particular, the very uncooperative attitude of the husband, I come to the conclusion that there are no special circumstances in this case justifying either a departure from the general rule of costs follow event or that the wife, being the winner of the application, should be deprived of part of the costs of her application.  Therefore, I now come to the view that the wife should be awarded the full costs of the hearing on 6 March 2017, instead of half costs as previously ordered.

Order

11.  The costs order nisi is now varied to the effect that the wife shall have the full costs of the hearing on 6 March 2017, to be taxed if not agreed.

Costs

12.  Costs to follow event.  The wife succeeds in this application for variation and shall have the costs of this application, to be taxed if not agreed.