L W S v. T M L T

FCMP 129 / 2019

[2026] HKFC 145

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2019

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BETWEEN

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JUDGMENT
(variation of costs order nisi)

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Introduction

1.  On 21 November 2025, after a 4-day trial, I handed down the judgment of the application for maintenance by the Applicant for the benefit of a boy, LHY (“Son”), born in October 2018, out of wedlock with the Respondent (“Judgment[1]”).

2.  In the Judgment, it was ordered, inter alia, that: -

a. The Respondent do pay a lump sum of HK$1,842,442 to the Applicant (with the necessary deductions in lieu of payments already made by the Respondent to the Applicant including half of the HK$1.1 million previously paid in April 2018[2]).

b. As the Son’s maintenance, the Respondent do pay to the Applicant: -

i. A periodical payment of HK$57,500 per month from 15 August 2024 until 14 December 2024 and;

ii. A periodical payment of HK$69,000 per month from 15 December 2024 until the Son reaches the age of 18 or completes full time education, whichever is later.

c. The Respondent do pay another periodical payment of HK$12,000 per month to the Applicant as the carer’s allowance for a period of 3 years from 15 August 2024 until 14 August 2028.

d. Costs order nisi of no order as to the costs of the proceedings, including all costs reserved, if any (“Costs Order Nisi”) with the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

3.  In the Judgment, I briefly considered the following matters when deciding on the Costs Order Nisi: -

a. The Applicant was in breach of my Order dated 15 October 2021 (“the said Order”) not to instruct either Dr Fanny Lam to prepare a supplemental report or a developmental paediatrician updating the progress of the Son’s autism after the Son received 6 months of ABA therapy.

b. The Applicant further unreasonably delayed in restoring the PTR as per the said Order but chose to take out a summons on 23 February 2024 seeking, inter alia, variation of the Son’s interim maintenance which is eventually withdrawn by her.

c. A main issue in dispute concerning the payment to Autism Circle is ruled against the Applicant although other issues (eg carer’s allowance, etc) were ruled in her favour.

4.  By the Respondent’s Variation Summons, the Respondent applied to vary the Costs Order Nisi as follows: -

a. The Applicant do pay the Respondent 50% of the costs of and incidental to the proceedings, to be taxed if not agreed, with Certificate for Counsel.

b. Costs of and incidental to the Respondent’s application be paid by the Applicant to the Respondent.

5.  By the Applicant’s Variation Summons, the Applicant applied to vary the Costs Order Nisi out of time as follows: -

a. The Respondent do pay 50% of the Applicant’s costs of and incidental to the proceedings on a party and party basis, to be taxed if not agreed, with Certificate for Counsel.

b. Costs of and incidental to the Applicant’s application and in opposing the Respondent’s application be paid by the Respondent to the Applicant, to be taxed if not agreed, with Certificate for Counsel.

6.  In support of the Applicant’s Variation Summons, the Applicant relies on her 2^nd Affirmation filed on 22 December 2025 (“LWS’s 2^nd Affirmation”) and her 3^rd Affirmation filed on 26 February 2026 (“LWS’s 3^rd Affirmation”) filed in reply to the Respondent’s 4^th Affirmation filed on 4 February 2026. For the Respondent’s Variation Summons, filing of parties’ affirmations was dispensed with.

7.  In short, each party is seeking for 50% of their costs to be paid by the opposite party.

Applicable legal principles

8.  It is trite that the Court has a wide discretion in deciding costs.

9.  Order 62 rule 3(2) of the Rules of the District Court (Cap. 336H) (“RDC”) provides: -

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

10.  Order 62 rule 5 of the RDC further provides: -

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account –

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A(2);

(d) any written offer which is expressed to be ‘without prejudice save as to costs’ and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful;

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention. [emphasis added]

(2) For the purpose of paragraph 1(e), the conduct of the parties includes –

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.” [emphasis added]

11.  Order 62 rule 7 of the RDC also states: -

“(1) Where in any cause or matter any thing is done or omission is made improperly or unnecessarily by or on behalf of a party, the Court may direct that any costs to that party in respect of it shall not be allowed to him and that any costs occasioned by it to other parties shall be paid by him to them.

(2) Without prejudice to the generality of paragraph (1), the Court shall for the purpose of that paragraph have regard in particular to the following matters, that is to say –

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) The omission to do any thing the doing of which would have been calculated to save costs;

(b) The doing of any thing calculated to occasion, or in a manner or at a time calculated to occasion, unnecessary costs;

(c) Any unnecessary delay in the proceedings.” [emphasis added]

12.  Ms Chong for the Respondent submitted that in F v F (No 2) [2003] 3 HKLRD 976 at 980C-982F, a case of ancillary relief claims, Hartmann J (as he then was) reviewed the relevant principles to costs. In gist: -

a. The discretion in costs is broader in ancillary relief proceedings than civil matters generally.

b. The general rule that costs follow the event does not cease to apply simply because the successful party raises issues or makes allegations on which he fails. But where that has caused a significant increase in the length or costs of the proceedings, he may be deprived of the whole or a party of his costs;

c. Where the successful party raises issues or makes allegations improperly or unreasonably, the Court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs.

13.  I agree with Ms Chong’s submissions that these principles equally apply in a claim for a minor’s maintenance under the Guardianship of Minors Ordinance (“GMO”), Cap13.

14.  Ms Chong also rightly cited a Ruling on costs following a trial on financial provision for an illegitimate child in RMH v GY [2024] HKFC 19 decided by Judge I Wong who reviewed the relevant principles as to costs at §§10-15. In particular: -

(1) In general terms, apart from children’s cases, the starting point on costs in other matrimonial and family proceedings, as they are in civil litigation, remains to be “costs follow the event”;

(2) Because of the special dynamics of family litigation, the discretion may be broader than in civil matters generally;

(3) Where arrangement of minors under the GMO is at issue, the starting point remains to be no order as to costs. As regards financial arrangement, the authorities suggest that the principle of costs follow the event remains the starting point;

(4) If neither party seeks to argue that he/she is the overall winner and hence, the principle of costs follow the event should apply in his/her favour, the Court may start with a “clean sheet” and the matters to be considered are the special matters set out in Order 62 rule 5. At the end of the day, it is a balancing exercise, and a broad-brush approach is all that is required.

15.  On the other hand, Ms Lam for the Applicant heavily relied on the UK Supreme Court judgment of Re S (A Child) [2015] UKSC 20, in which Lady Hale at §33 held:

“If the best outcome for the child is to be brought up by her own family, there may be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In other words, the welfare of the child would be put at risk if the family had to bear its own costs. In those circumstances, just as it may be appropriate to order a richer parent who has behaved reasonably in the litigation to pay the costs of the poorer parent with whom the child is to live, it may also be appropriate to order the local authority to pay the costs of the parent with whom the child is to live, if otherwise the child’s welfare would be put at risk.” (emphasis added)

16.  In my view, this UK authority is irrelevant as it concerns the care arrangements of a minor rather than a financial claim. It seems to me that Ms Lam for the Applicant eventually accepted F v F as the good authority in these costs applications as she subsequently in her reply submissions relied on this HK case.

Respondent’s unreasonable stance adversely affected the welfare of the Son

17.  Ms Lam for the Applicant argued that the Respondent’s misconceived and misleading undertaking given in his former counsel’s skeleton submissions dated 26 July 2021 to reimburse a non-existent organisation “ABA Partnership” (“Respondent’s Misconceived Undertaking”) amounts to an unreasonable stance. As a direct result of the Respondent’s Misconceived Undertaking, the non-existent “ABA Partnership” was later adopted by me in my Decision on interim maintenance dated 15 October 2021[3].

18.  Ms Lam for the Applicant submitted that the Son did receive ABA therapy from the organisation called Autism Circle. In late October 2021 (i.e. shortly after the October 2021 Decision), the Respondent’s then legal representatives, Messrs. Edward Lau Phoebe Ng, had approached the Autism Circle’s office for the purpose of demanding receipts for the Son’s therapy expenses. The receipts were duly provided upon the Applicant’s consent.

19.  In the Judgment, I concluded that Autism Circle was not a reasonable choice made by the Applicant for providing ABA therapy to the Son[4]. More importantly, I considered that it is highly suspicious that the Applicant colluded with Mr Joe for preparing the “receipts” issued by Autism Circle in view of the Respondent’s undertaking to reimburse her the sum of the Son’s ABA therapy and/or speech therapy (capped at HK$46,000 per month in total) as recorded in my Order made on 15 October 2021[5]. I therefore rejected all the “receipts” of Autism Circle[6].

20.  In my view, it is irrelevant as to whether the Respondent’s undertaking given in his former counsel’s skeleton submissions dated 26 July 2021 is misconceived and misleading. Even if the Respondent did pay any sum to the Applicant according to the “receipts” of Autism Circle, I would have no doubt to order such sum to be deducted from the lump sum entitled by the Applicant in the Judgment, which is quite similar to half of the HK$1.1 million previously paid by the Respondent to the Applicant in April 2018[7].

21.  In the circumstances, I refuse to accept the Applicant’s submission of the Respondent unreasonable conduct or bad manner of litigation conduct on this matter. Furthermore, the Applicant never commenced any proceedings for contempt of court for breach of the Respondent’s undertaking but chose to apply for variation of interim maintenance.

Applicant’s financial hardship

22.  Ms Lam for the Applicant relying on the comments of Lady Hale in Re S (A Child) argued that the Applicant is in financial hardship as she is the carer of the Son. I accept that the Respondent is richer than the Applicant and that there was a “great disparity of the parties’ earning capacities[8]”. As discussed above, I consider that Re S (A Child) is not relevant in the present application for variation of costs order nisi.

23.  Ms Lam invited this court to exercise its wide discretion to make a costs order in favour of the Applicant so that the welfare of the Son is not put at risk given the great disparity in the parties’ financial circumstances. I disagree with and indeed cannot understand her submission as to how the Son’s welfare will be put at risk if I order no order as to costs of these proceedings.

24.  In any event, I consider that the Applicant fails to prove any financial hardship since her relatives and Mr Liu kept providing financial supports to her[9]. Besides, a party’s alleged financial hardship is not a factor mentioned in Order 62 rule 5 of the RDC although the discretion in family cases may be broader than in civil matters generally.

Whether the Applicant was in breach of the said Order not to instruct Dr Fanny Lam

25.  The wordings of paragraph 3 of the said Order are as follows:

“The parties do jointly instruct either Dr Fanny Lam to prepare a supplemental report or a development paediatrician updating the progress of the Son’s autism after his receiving 6 months ABA therapy and/or speech therapy, failing agreement, any parties may take out an application for direction.”

26.  Ms Lam for the Applicant argued that the said Order was made out to both parties and the obligation to engage Dr Fanny Lam falls on both parties. Therefore, it is not fair to solely penalise the Applicant for not complying with paragraph 3 thereof when both parties are under a shared obligation to comply.

27.  I accept that both parties have the obligation to engage Dr Fanny Lam who has been appointed as SJE for both parties earlier. However, I take the view that the Applicant should be more eager than the Respondent to take the initiative to raise the issue of instructing Dr Fanny Lam to update the progress of the Son’s autism because: -

(1) She was the claimant of the Son’s maintenance including carer allowance and has sole custody, care and control of the Son. She must keen to know the Son’s progress after receiving the ABA therapy. At the material time, it was not entirely clear if the ABA therapy was beneficial to the Son. That is the reason why I imposed a 6 month-period in paragraph 3 of the said Order and I needed the assistance from SJE’s opinion;

(2) Pursuant to the 3^rd SJE Report, Dr Fanny Lam only recommended the Son to receive ABA therapy for 2 hours per week / 8 hours per month[10];

(3) The Respondent was all along not involved in the day-to-day care of the Son and even chose not to ask for any rights as a father, such as access.

28.  Ms Chong for the Respondent helpfully prepared the following salient chronology: -

15 October 2021	I ordered the supplemental report and fixing of PTR after the filing of the supplemental report
July 2022	The Applicant privately engaged Messrs Henry Chiu & Partners to act for her[11]
10 July 2023	The Applicant issued a Summons for variation of interim maintenance
19 July 2023	The Respondent took the initiative to ask Dr Fanny Lam to prepare the supplemental report
2 November 2023	Dr Fanny Lam’s supplemental report was filed
23 February 2024	The Applicant issued a Summons for interim maintenance
20 March 2024	The Respondent took the initiative to fix the PTR

29.  According to Ms Chong’s rely submissions, the Son was examined soon after in September 2023 and Dr Fanny Lam’s supplemental report was filed on 2 November 2023

30.  Ms Chong correctly submitted that the Applicant’s excuses for her inaction from October 2021 to July 2023 were already subjected to cross-examination at trial and rejected by me in the Judgment[12]: -

a. On one hand, the Applicant claims she could not afford a private lawyer from 28 July 2021 to July 2022.

b. On the other hand, since August 2020 up to January 2025, she was allegedly paying tens of thousands of dollars every single month to Autism Circle for ABA therapy in the total sum of around HK$2 million odd.

c. As said earlier, her relatives and Mr Liu kept providing financial supports to her[13]. There is no reason why the Applicant should not seek financial assistance from them to pay the private lawyer’s fees. I reject her allegation that she did not have money to instruct a private lawyer from 28 July 2021 to July 2022.

d. Further, if she truly did not have money to even instruct Dr Fanny Lam for the supplemental report, I fail to see how she could manage to privately instruct Messrs Henry Chiu & Partners to act for her again in July 2022. Further, pursuant to the latter part of paragraph 3 of the said Order, she was always entitled to seek direction from the court as to whether the Respondent should be wholly responsible for the payment of Dr Fanny Lam pending the outcome of this litigation.

e. After Messrs Henry Chiu & Partners started acting for the Applicant again in July 2022, there is no excuse why she did nothing when she was legally represented from July 2022 onwards. This is particularly so when the Applicant took out her variation application in July 2023. That is to say, the Applicant had funds to privately instruct lawyers to take out this interlocutory application at the time.

31.  The Applicant said that she was not given an opportunity to explain the above matters at trial. In order to show otherwise, Ms Chong quoted her records of exchange between her, Ms Lam and the Applicant in afternoon of 14 January 2025 (Day 2 of the trial) as follows:

Ms Chong’s question	Applicant’s answer
係相關命令黎既，第三段，就法庭當時命令呢，大家要係小朋友接受左6個月ABA治療及／或言語治療6個月後，一齊去Dr. Lam更新小朋友自閉症既情況。其實根據命令，最遲應該2022年4月左右要林醫生進一步再做報告係咪	唔
你從來無提出要求，同唔同意	同意
…
係爸爸代表律師既信件，2023年7月既，爸爸一齊要求，第三段，做番命令要求大家搵林醫生做既命令黎，咁亦都睇番命令，雙方要做完第二份部告，排期審前覆核	PTR
就算2023年11月存檔，第二份林醫生既報告之後，無要求排番審前覆核係咪	唔
…
你都同意，事實反映，你都唔介意起碼由中期贍養費，判左6個月去到之後，你就無採取動作推進案件，同唔同意	我唔同意無推進，唔同意無著急

Ms Lam’s question	Applicant’s answer
你有被問及到，收到Dr. Lam既報告係2023年7月，根據法庭命令呢，係2023年11月收到報告，之前係有提及過要去排期既，有被問及到，係呢個程序法律程序延誤同埋唔係急住用錢，根本唔著緊，有咩想解釋同回應	寫錯公司名，但係唔想停洋洋治療，借都比阿joe，律師

32.  I consider that although technically, both parties are in breach of paragraph 3 of the said Order, the Applicant is more to be blamed.

Whether the Applicant failed to comply with §4 of the said Order to fix PTR upon filing of Dr Fanny Lam’s supplemental report

33.  In the Judgment[14], I found that the Applicant unreasonably delayed in restoring the PTR.

34.  After Dr Fanny Lam’s supplementary report was filed in November 2023, the Applicant was again content to sit back and take no action. It was the Respondent who took the initiative to fix the PTR on 20 March 2024. There was no reason or explanation put forward in her 2^nd or 3^rd Affirmation for her failure to fix the PTR after November 2023.

Who is the overall successful party?

35.  I am not prepared to conduct the sort of “time-to-subject” analysis that Hartmann J in F v F rejected at 983I. I must repeat what the learned judge said “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”.

36.  Ms Lam for the Applicant re-argued that I erred in ruling against the Applicant on the issue concerning the payment to Autism Circle. It appears that Ms Lam made use of filing the submissions for appealing against the finding of this Court in rejecting the Applicant’s case as to Autism Circle expenses as a second bite. With the greatest respect, it is entirely improper for her to make these lengthy submissions[15].

37.  Ms Lam also raised that the Respondent’s production of Snapchat messages to support concerning the HK$1.1 million sum paid to the Applicant was rejected by me. Ms Lam further submitted that I took a critical and damning view of the Respondent’s evidence, such as providing medical care to the Son himself as he is a doctor, his financial means[16], etc. In my view, all these are very minor issues which I shall not make “a profit and loss account”.

38.  Ms Lam further contended that although the final award in the range of HK$69,000 to $81,000 did not meet the amount sought by the Applicant, it is still significantly higher than the Respondent’s offer of HK$42,887. She quoted the statement of Hartmann J in F v F “it can be said, therefore, that the [Applicant] had to come to court to obtain a just award.” Accordingly, the Applicant should be considered being the successful party. In any event, the Respondent’s measurement of success by way of the final award being “closer” to the amount offered is irrelevant and bears no weight.

39.  As to the claim of the Son’s monthly maintenance, I agree that the Applicant is the winner. Nevertheless, the items in dispute are quite common in most of the children’s expenses, which are not complicated except the ABA therapy fees allegedly incurred. In any event, there are other complex issues, like “carer’s allowance” which have to be dealt with and decided by me, in the Judgment.

40.  My impression is that the Applicant cannot be regarded as the overall successful party, especially when she lost on Autism Circle issue in the total sum of around HK$2 million odd, the biggest issue in dispute which took plenty of time at trial. It is noteworthy that the evidence of his witness Mr Joe was entirely rejected by me in this regard[17]. I would also bear in mind that the Respondent successfully resisted some of the claims, like her rent claim of HK$1,204,000[18].

41.  In this judgment, I maintain that it is unnecessary for the Applicant to issue a Summons for variation of interim maintenance on 10 July 2023 and issue a Summons for interim maintenance on 23 February 2024. In my view, in the best interest of the Son, she should instruct Dr Fanny Lam for preparing the supplemental report and then restore the PTR as early as possible rather than issuing the said 2 Summonses. Even if she or her legal representatives at that time considered premature to restore the PTR, they were at liberty to fix a direction hearing before me as per the latter part of paragraph 3 of the said Order. For the question of costs, I am entitled to take into account her litigation conducts and unreasonable delay under Order 62 rules 5 and 7 of the RDC.

42.  On one hand, the Respondent must be the winner on Autism Circle issue, which has caused a significant increase in the length or costs of these proceedings. But based on my overall impression, he can hardly be said as the successful party in this case, especially when there is no evidence of Calderbank letter or without prejudice offer made by him, his open offer of HK$42,887 cannot meet the final award, he unnecessarily challenged almost every item of the Son’s expenses, he also lost on the issue of “carer’s allowance” and some other minor issues.

43.  By way of overall impression and after taking into account the Applicant’s conducts as mentioned above, I maintain that no order as to costs of these proceedings including all costs reserved is a proper, fair and just costs order to be made. In the circumstances, both the Applicant’s and the Respondent’s Variation Summonses be dismissed and Costs Order Nisi be made absolute.

Costs

44.  For the question of costs, since the parties’ respective applications be dismissed, a fair costs order shall be no order as to costs of these 2 applications including all costs reserved, if any. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.