WW v. LLN formerly known as LSM

FCMC 4996/2018

[2019] HKFC 253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4996 OF 2018

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SUPPLEMENTAL JUDGMENT
(Leave to Appeal)

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1.  This is a hearing subsequent to the handing down of my judgment (“the original judgment”) dismissing the petitioner husband (“the husband”)’s application for leave to appeal against the maintenance pending suit (“MPS”) order granted on 23 July 2019.

2.  At §44 of the original judgment, I dismissed the husband’s summons for leave to appeal and then (at §45) went on to deal with the question of costs.  Despite the fact that the respondent wife (“the wife”) succeeded in resisting the leave application, I was under the erroneous impression that she has failed to lodge her statement of costs as previously directed.  Due to this erroneous assumption, I have decided to exercise my discretion in denying her costs.  My mistake was immediately pointed out by the legal representatives of the wife and thus I direct this hearing to be held and that the sealing of the leave application order is to be withheld.

3.  At today’s hearing, it is common ground that the wife did lodge her statement of costs as previously directed.  Therefore, the basis upon which I have exercised my discretion in denying her costs was unfounded.

4.  After hearing submissions, I am of the view that I do have inherent power to rectify the mistake which is clear and unambiguous before the order is sealed.  There are clear English authorities to say that an order pronounced by a judge can always be withdrawn, or altered or modified, by him until it is drawn up, passed and entered: Re St. Nazaire Co. (1879) 12 Ch. D. 88; Re Suffield and Watts, ex p. Brown (1888) 20 Q.B.D. 693; Re Harrison’s Share Under A Settlement Harrison v Harrison and Others; Re Ropner’s Settlement Trusts Ropner v Ropner and Others [1955] 1 All ER 185.

5.  The alternative is of course to allow leave to appeal (on this point alone) for the rectification by the Court of Appeal, which is in my view a waste of time and further costs in the proceedings.  Under these circumstances, I have decided to reconsider the issue of costs.

6.  After reconsideration, and as I have said in the original judgment, the wife was successful in resisting the husband’s leave application and should be considered as the winner therein.  She should be granted costs of the application, including costs reserved.

7.  As to quantum, the wife’s statement of costs amounts to $97,213, in which $40,000 was for counsel fee.  I note that in the husband’s leave application, quite a number of grounds and sub-grounds were raised and I cannot say that the legal fees incurred by the wife are in any way unreasonable, especially when the husband was also incurring a similar amount of legal costs ($93,876) in the leave application.  In the circumstances, I hereby assess the costs of the wife at $97,000, payable by the husband forthwith.

8.  For today’s hearing, there shall be no order as to costs.

9.  As the sealed order of the leave application is yet to be prepared, I hereby direct that such order is to be drawn up by incorporating and substituting therein the rectifications as ordered hereinabove.

10.  Lastly, it remains for me to apologise for the time and costs incurred in rectifying the oversight on my part.