KWOK MAY CHUN v. LIANG CHI KIN TOMMY

CACV 45/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 45 OF 2000

(ON APPEAL FROM FCMC 10515/1999)

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J U D G M E N T

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Hon Rogers JA :

1. This is an appeal from a decision of Deputy Judge Jenkins which he made on 3 December 1999 following the hearing of a summons.

2. The matter arises in this way. The parties are husband and wife. The petitioner had originally served a petition for divorce for cause. Following negotiations between the parties last year, an agreement was reached that that petition would not proceed, but a new petition, based on one year's separation, would be served and agreed to and various other matters taken care of.

3. Following that, on 29 October of last year, the petitioner issued a petition. That petition was sent to the respondent's solicitors on 1 November. The petition was not served personally on the respondent and perhaps in the circumstances, given the fact that there was an agreed consent order which provided for this petition, that is not altogether surprising. Then, there followed correspondence between the two firms of solicitors. In some of their correspondence, the solicitors made clear they would advise their client to consent to the petition but they needed to contact him. The correspondence then went off at a tangent dealing with various other technicalities, such as the fact that the petitioner may have put her brother's address instead of her actual residential address in the petition.

4. Eventually, the petitioner's patience evaporated and in order to push matters along, the solicitors took out a summons. That summons was a time summons. It asked for an order that "the respondent do, within seven days of the order to be made herein, file into Court the acknowledgement of service (Form 4) and serve copy of the same to the solicitors for the petitioner".

5. Apart from the fact that the petition had not been personally served as was required, it is conceded on behalf of the petitioner that that summons was misconceived. At the hearing before the judge, and the court has been provided with a full transcript, the judge said as follows :-

"It's clear that I have to dismiss the application but I'm going to grant costs to the petitioner. It's clear to me that the respondent indicated that he was going to consent to the second petition by instructing his solicitors to consent to the dismissal of the first petition and the filing of the second petition. If he then chooses to fail to keep in contact with his solicitors, then in the absence of any explanation for that failure to keep in contact, he is at fault. I award costs to the petitioner."

6. It is that matter which comes before this court by leave of the Deputy Judge made on 19 January of this year. The respondent objects to the order for costs and says that the order made was wrong in principle. It is said that the procedure being incorrect, which is now admitted, the judge below could not award costs against the successful respondent. When faced with the summons, the respondent had to make some response and, in particular, no doubt, had to attend the court to explain to the court that the order sought on that summons was misconceived.

7. In those circumstances, the respondent not having encouraged the petitioner to make the particular application and not in some way being at fault in that respect, the respondent says that the matter does not come within the most exceptional category of cases referred to, for example, by Lord Justice Russell in Knight v. Clifton [1971] 1 Ch. 700. At p.713, the judge said :-

"I can imagine a case in which a man subject to an injunction may deceive his opponent into thinking that the injunction has been breached, where such an order may be properly made. [That is an order for costs.] But that was not this case; the facts were there for the plaintiffs to form their own judgment on whether they amounted to contempt. That was the sole issue, and on it they failed. To say of the third defendant that he should not get his costs because he acted rashly, or steered rather close to the wind, is one thing; as has been often said a successful defendant has no right to his costs. But to order him to pay the costs incurred by the plaintiffs in launching a motion to commit which in the event proved unjustified is quite another matter."

8. In my view, the judge's order was wrong, although understandable to the extent that, no doubt, there was much consternation caused by the fact that the respondent had not been in contact with his solicitors and had not taken the steps which needed to be taken under the consent order. But that was no justification for ordering costs against the successful respondent on a misconceived application. It may well have been that the petitioner could have saved the day in the court below on the day of the hearing, altering the application to, perhaps, one to lift the stay on the previous petition and to continue with the previous petition for divorce for cause. But that did not happen.

9. Given the circumstances of the case, I consider that it is now open to this court to exercise its own discretion as to the matter of costs. I have to say that resulting from an inquiry by the court at the commencement of this hearing, the total costs sought by the petitioner as a result of hearing below was something in the region of $15,000. Unfortunately because there is an appeal, the costs on each side have now reached approximately $50,000. It is highly regrettable that costs should have been run up in this way. However, that situation pertains. It seems to me, looking at the matter of the costs below, that in view of the approach taken by the judge to the respondent's conduct as being totally uncooperative and deserving some kind of procedure to compel the respondent to proceed with the case in one way or another, that it may have been appropriate that no order as to costs should be made below.

10. For my part, I would allow this appeal and substitute the order of the court below with an order that there be no order for costs.

Hon Godfrey VP :

11. This appeal concerns the costs of a misconceived interlocutory application in matrimonial proceedings. The usual order as to costs in such a case would be an order in favour of the successful respondent. Although, in an exceptional case, it might be a proper exercise of the judicial discretion to deprive such a respondent of costs, I have never encountered a case in which the successful respondent to a misconceived interlocutory application has been ordered to pay the applicant's costs. Such an order would serve altogether to insulate unsuccessful applicants from the consequences of their failure, and I can conceive of no circumstances in which the judicial discretion could properly be exercised in that way unless the error made by the applicant was one induced or encouraged by the respondent. That is not this case.

12. For these reasons, and for the reasons given by Rogers JA, I too would allow this appeal. Accordingly, we will set aside the order for costs made below, and we will make no order as to those costs. The costs of the appellant of this appeal must be taxed (if not agreed) and paid by the respondent in this court to the appellant. There will be a separate taxation of the respondent's own costs of the appeal for the purpose of the Legal Aid Regulations.