WGL v. ASB

HCMP 489/2013

[2019] HKCFI 1956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 489 OF 2013

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D E C I S I O N
(Variation of Costs Order Nisi)

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Introduction

1.  Last year, after a trial, this Court handed down a judgment on 30 November 2018 (“Judgment”) and I shall follow the definitions therein, unless otherwise indicated.

2.  The Judgement is in relation to a total of 5 summonses referred to respectively as the Mother’s CPI Summons and Education Fund Summons, and the Father’s Variation Summons, Reimbursement Summons, and ECA Summons.

3.  Prior thereto, this Court had made an order on 27 March 2018 for the appointment of a single joint expert (“SJE”), namely Mr Frank Yuen of Corporate Advisory and Recovery Limited to prepare an expert report (“SJE Report”) to be used at the trial of the above 5 summonses.  At the time, I also directed that the costs of the SJE be initially borne by the Father and that costs shall be dealt with at trial.

4.  The Father took out a summons on 20 December 2018 to vary the costs order nisi (“Costs Order Nisi”) contained in the Judgment.  As the matter was not raised at the trial by the parties, the Costs Order Nisi did not specifically deal with the costs of the SJE.

5.  The Father’s application is for the costs of the SJE to be borne by the parties in equal shares.  At the directions hearing on 6 May 2019, I directed that the matter be determined by paper disposal.

6.  Counsel Mr Eugene Yim lodged written submissions on behalf of the Father on 27 May 2019.  The Mother did not lodge any written submissions in opposition thereto.

7.  Expert directions are governed by Order 38 rules 4 and 4A of the Rules of High Court, Cap 4A (“RHC”) and the Court has a wide discretion on the payment of experts’ fees and expenses.

8.  Mr Yim has referred to paragraph 38/4A/5 of the Hong Kong Civil Procedure 2019 which states that “the usual arrangement is that each instructing party is liable for an equal proportion of the agreed fee”.  He has also referred to this Court’s decision in LCYP v JEK [2018] HKCFI 1907 where this Court had said at paragraph 75 that it is now the general practice in matrimonial proceedings to instruct a single joint expert for which the costs are to be shared.

9.  As pointed out by Mr Yim, and as seen in paragraph 18 of the Judgment, the purpose of the SJE Report was to (i) prepare an analysis of the evidence provided by the Mother to investigate and report on the actual spending on ILB’s expenses which was supported by documentary evidence as to actual payments made in last 2 years; and (ii) verify the actual costs of flight tickets/airfares incurred by the Mother on behalf of ILB, between 2012 to 2017 which were supported by proof of payments.

10.  The SJE Report was duly prepared and submitted.  The SJE Report was prepared on the basis of the documentary evidence which the Mother could produce to support her actual spending on ILB’s expenses and also the documentary evidence of the Mother’s actual payments of flight tickets/airfares.  Thus the Mother was allowed an opportunity to produce as much documentary evidence as she could for the preparation of the SJE Report. 

11.  The Mother had acted in person.  It turned out during the trial that the Mother had not been really keeping documentary evidence or records of her own or in any event was only able to produce very little documentary evidence.  This resulted in the figures of her spending on ILB’s expenses and also on the flight tickets/airfares which were supported by documentary evidence being very low.  In fact, for the flight tickets/airfares, there was only one invoice produced by the Mother.

12.  Although the Mother did not accept what was stated in the SJE Report and in fact called the report “absurd”, she did not seek to cross examine the SJE. The Father had no issue with the SJE Report and sought to rely on it.

13.  Notwithstanding the lack of documentary evidence from the Mother, having considered all the circumstances of this case, and the best interests of ILB, and upon the Father’s undertaking to continue to pay upon receipt of school invoices direct to ILB’s school for any of ILB’s tuition expenses invoiced by the school, and upon the monthly amount of HK$150,000 for the housing costs of ILB being suspended until further order, the amount of the non-housing part of the periodical payments of HK$140,000 per month (or its adjusted index-linked amount) was varied downward to HK$121,000 per month, to be index-linked.

14.  What can be seen during the trial was ultimately this Court took into account the amounts previously ordered or agreed which would set a reference as to the lifestyle which the Mother and ILB had been used to and also the Mother’s own oral evidence as to the lifestyle of ILB and how the Mother said she had been spending the sums paid by the Father. Although the amounts ordered were not all based on the SJE Report, I am of the view that the SJE Report did assist this Court as setting a starting point or a baseline.  

15.  The Mother did not appeal against the order in relation to the appointment of the SJE and in fact, the Mother did try to produce some documentary evidence or records to the SJE.

16.  Having considered the above and Mr Yim’s submissions which I accept, there is no reason why the usual practice that the costs of the SJE be shared by the parties in equal shares should not be followed. 

17.  I will therefore allow the Father’s application in this regard.