CMT v. ADS

FCMC 4383/2016

[2021] HKFC 49

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4383 OF 2016

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J U D G M E N T

(re. Variation of costs )

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1.  On the 14 September 2020 I delivered judgment in respect of an application for interim maintenance for 3 children; the reported Judgment bears the citation [2020] HKFC 187 which orders that:

i)  Interim Maintenance to be paid in the sum of HK$10,000 per month from the 1 October 2020 and thereafter on the first of each successive month until further order;

ii)  The Interim Maintenance to be backdated from the 27May 2020; approximately four months June, July, August and September 2020 in the total sum of HK$40,000; and

iii)  The Husband do pay the Wife’s costs of and incidental to the application on a party and party basis and that the Wife’s own costs be taxed in accordance with the Legal Aid Regulations such nisi order to become absolute 21 days from the 14 September 2020.

2.  By his summons of the 29 September 2020 the Husband seeks to vary the costs order nisi to the extent that there be no order as to costs as between the Husband and the Wife.

3.  By the order of Her Honour Judge Melloy dated 9 December 2020 it was directed that the application to vary the costs order be dealt with by me by way of paper disposal.

The basis of the Husband’s application to vary costs

4.  By his Counsel’s written submissions dated the 11 January 2021 the Husband inter alia makes the following points :

i)  The Wife had sought an order for HK$10,000 per month to be backdated to the date of Petition namely 18 April 2016;

ii)  By reason of the backdating of four months the Wife failed in her backdating claim as she had sought 54 months namely from April 2016 to September 2020; and

iii)  By seeking a backdating of 54 months the Wife caused the Parties to incur unnecessary costs and that in any event a claim for backdating for such a long period of time was unreasonable and without merit.

5.  By her Solicitors’ submissions dated the 11 January 2021 the Wife makes following points:

i)  Prior to the Trial the Husband had made no offers of settlement. I note from the affirmation of the Wife’s solicitors that there has an exchange of ‘without prejudice save as to costs’ correspondence however by reason of the offers it does not impact the order as to costs. 

ii)  The Husband’s open position was that the interim maintenance should be HK$5,000 a month.

iii)  The Wife accepts that the issue therefore is the question of how relevant is the period of backdating in terms of the costs order.

6.  Both Parties have referred to me various authorities as to the discretionary nature of the determination of costs.

7.  The Husband has specifically referred me to Order 62 and in particular rule 5:

“6. Order 62 rule 5 mandates the court in exercising its discretion as to costs to take into account special matters set out therein. It provides that:-

“5(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as many be appropriate in the circumstances, take into account –

…

(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; and

(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;

…”

and in addition the Judgment of To J in Waxman & Anor v Li Fei Yu & Anor.

8.  At the Trial the Husband had proposed that the interim maintenance for the 3 Children be HK$5,000 per month from the date of the order to be made; notwithstanding the fact that as referred to at paragraph 8 of my Judgment the Husband had previously proposed HK$6,000 per month (HK$2,000 per month per child to commence from the date of decree absolute).

9.  I also recorded in the Judgment the following at Para 13 vi) and vii):

“vi) The Husband complains that between August 2016 to September 2019 the Wife prevented him from having physical access to the Children despite his requests. The Husband states:

“I was so angry with the Respondent using the children against me which was one of the reasons that I did not give her money during the period of December 2018 to December 2019”;”

10.  It is important for Parties’ embroiled in Family Litigation to appreciate, recognise and respect that matters of financial support and care/access of children are separate.  It is quite wrong for a parent ‘to link’ financial support to access.

Conclusion

11.  Whereas I accept the Wife was not successful in backdating the interim maintenance to the date of the Petition I note that the Husband was not prepared to pay interim maintenance until the pronouncement of Decree Absolute and at a figure half that awarded.

12.  If the Husband had in fact paid interim maintenance at the level he had proposed in his Petition namely HK$6,000 per month he would have had a respectable argument as to costs; unfortunately he chose not to pay interim monthly maintenance and in event proposed that it be paid from the pronouncement of the Decree Absolute, a proposition which is without logical and is quite simply nonsensical. 

13.  In the circumstances balancing the positions and conduct of the Parties and having considered the submissions and the applicable Ordinance and case law I decline to vary the costs order.

14.  The Husband’s summons of the 29 September 2020 shall stand dismissed. I see no reason why the Husband should not pay the Wife’s costs of and incidental to the summons of 29 September 2020 on a party and party basis and that her own costs be taxed in accordance with the Legal Aid Regulations and I so order.