HMSE v. JJS

FCMP 70/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 70 OF 2008

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D E C I S I O N
(LEAVE TO APPEAL)

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1.  This is a hearing of the Applicant (“the mother”)’s application for leave to appeal against the interlocutory order on costs dated 8 March 2017.  The Respondent (“the father”) opposed the application.

Brief introduction

2.  The proceedings originated from the mother’s application for maintenance for the daughter (“T”) back in 2008.   By the order of HH Judge Chu (as she then was) in 2009, the father was ordered to pay:

(1) a lump sum of $333,520;

(2) periodical payment of $47,500 per month as from 1 May 2009; and

(3) the maintenance of $47,500 shall be reduced to $35,000 per month as from the date of the purchase of a property for T’s accommodation.

3.  By an order of this court dated 31 March 2010, the mother was allowed to have an accommodation allowance of $12,000 per month in lieu of a property to be purchased by the father for T’s use.  As the accommodation of T had been taken care of, her monthly maintenance was therefore fixed at the rate of $35,000 per month.

4.  There were no further proceedings after the 31 March 2010 Order until 31 March 2016 when the mother took out a summons asking for an increase of T’s maintenance.  I understand that one of the issues to be determined is whether a mother’s allowance should be granted for the benefit of T.   The father takes issue on this mother’s allowance and therefore, the personal financial circumstances of the mother has become an important issue. 

5.  On 7 September 2016, the father issued a summons requiring the mother to answer a Questionnaire in which a number of questions were raised in respect of her financial circumstances.   At the call over hearing on 13 September 2016, the mother indicated to this court that she was no longer seeking a full mother’s allowance although she had at that hearing expressly reserved her rights for a travelling allowance so that she could travel with T. Since the mother was not asking for a full mother’s allowance, her personal financial circumstances were no longer relevant and Ms Hung for the father agreed to withdraw that part of the father’s summons for discovery.   The case was then adjourned to 24 October 2016 for mention and in the meantime, directions were given for those questions not touching upon the mother’s financial circumstances to be answered.   At the return hearing and seeing that the case was ready, a trial was fixed to be heard on 30-31 March 2017 and 24 April 2017 for 3 days.  

6.  Unfortunately, the case took a turn in February 2017 and a summons was issued by the mother on 21 February 2017 in which she asked for, inter alia, a full mother’s allowance.  As the mother has revived her claim for a full mother’s allowance, her personal financial circumstances have once again become relevant and at the call over hearing on 8 March 2017, Ms Hung for the father indicated that she would reinstate her application for discovery on the mother’s financial circumstances.  In view of this change of circumstances, the trial originally fixed on 30 March 2017 had to be aborted and in its stead, I allowed Ms Hung to issue a new Questionnaire to be argued on that day.  I have also ordered the mother to bear the costs thrown away due to the adjournment of the trial.

7.  Being dissatisfied with the costs order against her, the mother issued a summons on 20 March 2017 asking for leave to appeal against the said costs order. Today is the return day for argument of the mother’s summons for leave to appeal.

The Law

8.  Leave to appeal is governed by s. 63A(2) of the District Court Ordinance, Cap 336 which reads:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that-

(a) The appeal has a reasonable prospect of success; or

(b) There is some other reason in the interests of justice why the appeal should be heard.”

9.  As to what constitutes a reasonable prospect of success, it has been held that the prospects of succeeding in the intended appeal must be “reasonable” and therefore more than “fanciful”, but without having to be “probable”: SMSE v KL[1].

10.  In respect of an intended appeal against a costs order, I was referred to the case of TCTE v SM[2] at paragraph 7 of which:

“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.”

11.  I shall bear the above legal principles in mind when I come to determine the mother’s present application.

The mother’s arguments

12.  The mother does not dispute that at the call over hearing on 13 September 2016, she had indicated to this court that she was no longer asking for a “full mother’s allowance”. However, she said she had already stressed at the hearing that she would reserve her right on claiming a travelling allowance of $5,000 so as to accompany T in future travel.  However, not only that the solicitors for the father did not draw up a proper order to record the said reservation, they had actually written her a letter asking her to stop raising the issue of “mother’s allowance” again.  She said she felt so confused and so decided to write to the Court to claim for “full mother’s allowances”.   According to her, had the father’s solicitors not sent her the letter, she would have no intention to claim for full mother’s allowance and would stick to claiming her travelling allowance only.  It was her case that it was the lawyer’s fault in not listening carefully to the reservation of the travelling allowance and not managing the case properly that had caused the adjournment of the trial. Therefore, she should not be ordered to pay the costs thrown away due to the adjournment.

My views

13.  I think it is very clear that the mother’s personal financial circumstances must be relevant if she is claiming a full mother’s allowance and therefore, the father should be allowed to seek discovery on the same.   But since she had expressly given up her claim for a full mother’s allowance at the 13 September 2016 hearing, such discovery was no longer necessary.  On that basis, the case was subsequently set down for trial at a later hearing.

14.  I fully appreciate the mother’s case that she had not given up her claim for a travelling allowance, which must be true according to the transcript.  Therefore, should the mother decide to include such a claim for travelling allowance at trial (which has already been fixed on 30-31 March and 24 April 2017), I would have no hesitation in allowing such a claim to be put forward and proceed to hear evidence in its support.

15.  However, the mother is now claiming a full mother’s allowance (instead of a travelling allowance) which has already been abandoned by her at the 13 September 2016 hearing.  Under such circumstance, the personal financial circumstances of the mother have become relevant again and the re-opening of the father’s discovery application became inevitable.  As a result, the trial already fixed to begin on 30 March 2017 had to be aborted.  

16.  At the 8 March 2017 hearing, the mother had been informed that if she should insist on a full mother’s allowance, the father’s application for discovery had to be re-opened which would inevitably affect the trial dates.  Nonetheless, the prospect of such an adjournment has not deterred her to insist on a full mother’s allowance, which she had already abandoned some months ago.  It was under these circumstances that a costs order was made against her.

17.  After considering the mother’s submissions, I am not convinced that the exercise of the court’s discretion in making such a costs order was plainly wrong and thus necessitates the intervention of the appellate court in this regard.  As the mother’s summons for leave to appeal has no reasonable prospect of success and there being no other good reasons for allowing leave, the mother’s summons has to be dismissed.

Costs

18.  Costs to follow event.  The mother’s summons has been dismissed and the father shall be entitled to costs of this summons, including today’s hearing, to be taxed if not agreed.