CWYW v. CCH

FCMP 124 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 124 OF 2013

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JUDGMENT

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1.  There are 4 matters before the Court:

(1)   By a Summons dated 1 September 2016, the Applicant (Mother) applied for a variation of a Costs Order Nisi dated 19 August 2016 from an order that each party do bear her/her own costs to an order that the Respondent (Father) do pay the Mother’s costs of and incidental to these proceedings;

(2)   On the same day, the Father also took out a Summons for the Costs Order Nisi to be varied;

(3)   By a Summons dated 15 September 2016, the Mother applied for leave to appeal against the Judgment dated 19 August 2016;

(4)   On 23 December 2016, the Mother took out a Summons for leave to amend her draft Notice of Appeal. 

2.  Subsequently, the Mother’s application for variation of the Costs Order Nisi was withdrawn by consent. Her application to amend her draft Notice of Appeal was granted by consent. This Judgment only relates to the Mother’s application for leave to Appeal and the Father’s application for variation of the Costs Order Nisi.

Background

3.  The background to these proceedings are set out in the Court’s Judgment dated 19 August 2016 and I do not propose to repeat them in detail here.

4.  In short, the Mother and the Father had a short relationship, as a result of which TS (the Child) was born prematurely on 20 October 2011. The Father was at all times prepared to pay for the maintenance of the Child. However, the Mother was unhappy with the amount that was paid. She took out an application for maintenance of TS under section 10(2) of the Guardianship of Minors Ordinance (Cap 13) (GMO).

5.  There was no dispute that the Father was the grandson of a well-known tycoon. The Mother was also from a well-off family. The Father relied on the “millionaire defence”. He stated that he was able to meet any reasonable order that the Court may make to avoid a lengthy and expensive discovery process of his means.

6.  Throughout these proceedings, the Father has accepted that he should make appropriate and reasonable financial provision for the Child. In addition to his undertaking to pay for all the educational and medical expenses, the Father offered a sum of $120,000 per month as maintenance. The Mother was not happy with the Father’s offer. In addition to the Father’s undertakings, she asked for a monthly provision of $407,147 for the maintenance of the Child, a lump sum for the cost of setting up a new home, the purchase of a car and reimbursement of past expenses of over $7 million.

7.  During the trial, it was the Mother’s case that the Father was in the category of the “super rich” and that the Child was entitled to a lifestyle beyond the imagination of “ordinary wealthy people”. She did not accept the Father’s assertion that he in fact lived very sensibly. Initially, the Father argued that both parents should be responsible for the maintenance of the Child and that the Mother’s resources should also be taken into account. During the trial, he agreed to be solely responsible for the Child’s maintenance but objected to what he says were attempts by the Mother to inflate her ever increasing claims to a figure far beyond any reasonable level of maintenance. He maintained that the Mother’s resources (including financial resources from her family) and her earning capacity should be taken into account when considering the question of her carer’s allowance. He asserted that the Mother’s disclosure of her means was less than full and frank and that she has deliberately divested herself of assets as a litigation tactic. He also argued that the Mother has a high earning capacity and could return to employment.

8.  Prior to the trial, almost every single head of claim was in dispute.; The Father made a number of concessions during the trial, some of which have been accepted. He paid for a debenture for the English Schools Foundation (ESF). He has undertaken to pay for the school fees and a maximum of 1 extra-curricular activity per day. Subject to being allowed to consult with the Child’s doctors, he was prepared to pay for all medical and dental expenses, the parties have agreed that after the Court has assessed the reasonable “monthly sum”, that figure would be backdated, taking into account the amounts already paid by the Father. It was also agreed that the exact mathematical calculation could be left to the parties.

9.  Despite those agreements, most of the items of claim remained in issue. After a 6 day trial and on 19 August 2016, the Court made an Order that:

“Upon the Respondent’s undertaking to the Court and to the Applicant to consult with Child’s doctors and therapists and to follow their recommendations; and

Upon the Respondent’s undertaking to the Court and to the Applicant to pay for all of the Child’s medical expenses; and

Upon the Respondent’s undertaking to the Court and to the Applicant to provide his solicitors with a sum of HK$100,000 as a float for reimbursement of medical expenses and cost of therapy and to top up such sum before it is fully expended; and

Upon the Respondent’s undertaking to the Court and the Applicant to pay for all school related expenses (inclusive of educational tools such as school books and stationery at school and uniforms) directly; and

Upon the Respondent’s undertaking to the Court and the Applicant to reimburse the Applicant for one extra-curricular activity per day upon the production of receipts; and

Upon the Respondent’s undertaking to the Court and the Applicant to provide the Child with Annual Passes for 3 adults and 1 child to Disneyland and Ocean Park every year unless varied by consent or until further order; and

Upon the Parties’ agreement and the Respondent’s undertaking to the Court and the Applicant that past expenses incurred for the Child shall be backdated and reimbursed to the Applicant at the rate ordered as monthly periodical payments in these proceedings; and

Upon the Applicant’s agreement that any previous payments made by the Respondent shall be taken into account in the calculation of reimbursements; and

Upon the acknowledgement by the Applicant that any shortfall for the cost of medical treatment and therapy up to 11 March 2015 has been paid by the Respondent; and

Upon the acknowledgement by the Applicant that any shortfall of education expenses had been paid on 9 February 2015; and

Upon the acknowledgement that a total sum of HK$540,000 had been paid by the Respondent as reimbursement for past general expenses incurred for the Child; and

Upon the Applicant’s acknowledgement that the Respondent has made payment of interim maintenance for the Child pursuant to the Order of Deputy District Judge S Lo dated 18 November 2013

IT IS ORDERED THAT:

That the Father shall pay a sum of $140,000 per month to the Applicant as periodical payments to the Child until the Child reaches the age of 19 or completes full time education, whichever is the later;

The estate agency fees and rental deposit for the rental of future accommodation for the Child shall be borne by the Respondent’

The Respondent shall pay a lump sum of HK$834,000 as the cost of setting up a new home and purchase of a new car;

The Respondent shall reimburse the Applicant a sum of HK$1,040 for the cost of the Child’s identity card;

Reimbursement of past expenses shall be made within 28 days hereof;

Liberty to apply; and

There shall be no order as to costs, such order to be in the form of an Order Nisi, to be made absolute if no objection were received within 14 days.”

Applicable Legal Principles

10.  The test for leave to appeal is prescribed by statute. Section 63A(2) of the District Court Ordinance (Cap 336) provides:

“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 interest of justice why the appeal should be heard”

11.  In KNM v HTF & Ors HCMP 288/2011 unreported, 7 September 2011, the Court of Appeal explained that:

“The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.

12.  Where an appeal involves appealing against the exercise of discretion of the judge, the appellate court is entitled to interfere only where “the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong”: RK v YS HCMP 1969/2012, unreported, 1 November 2012.

13.  As regards the alternative test under section 63A(2)(b):

“It is impossible to give an exhaustive list of the circumstances in which the Court of Appeal would find that there is some other reason in the interests of justice that an appeal should be heard. It is suggested that the Court of Appeal would continue to be guided by the practice under the former O.59 4.14. The Court of Appeal may grant leave if the question is one of general principle, decided for the first time or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage (Hong Kong Civil Procedure 2017 at §59/2/2A/4; p.1109).

14.  I shall now deal with the Mother’s Draft Notice of Appeal according to those principles.

Notice of Appeal

15.  The Mother’s Draft Notice of Appeal contains 8 main grounds of Appeal, running to a total of 10 pages. They are set out in writing and it would be unrealistic to repeat them in full here. The Mother has divided her grounds of appeal are divided into 4 general categories. I shall adopt those categories without repeating the particulars in full.

Overall Approach

16.  In summary, in the 1^st general category, the Mother argued that the Court adopted an erroneous overall approach in assessing the reasonable needs of the Child. She stated that: 

(1)   The Court erred in failing to have regard to the means of the Father as the sole or alternatively the principal determinant in considering what was reasonable provision for the Child;

(2)   The Court erred in giving undue weight to the alleged standard of living of the Father and his family, especially when there is a material disparity between the Father’s means and the alleged standard of living;

(3)   The Court had no or no proper basis to find that the standard of living of the Father and his family was “comparatively frugal” or “not as lavish or opulent as alleged”;

(4)   The Court erred in taking into account the Mother’s means, financial resources and earning capacity when there was no proper basis to do so. Such findings are also erroneous and unsupported by evidence.

17.  Throughout these proceedings, it was the Mother’s position that the Father’s means is the sole factor to be considered by the Court in its determination of the reasonable needs of the child and that his standard of living is wholly irrelevant.

18.  As was pointed out in paragraphs 15 to19 of this Court’s Judgment, the Mother’s claim is made under section 10(2) of the Guardian of Minors Ordinance, Cap 13 (GMO). The test under that section is what the court considers to be reasonable having regard to the means of the parent to whom the application is directed.

19.  The statutory provisions in England governing financial provision for children are set out in s 15 and Schedule of the Children Act 1989 (the 1989 Act). As was comprehensively pointed out in H v S [2012] HKFLR 236, there are some major differences between the provisions of the GMO and the 1989 Act.

20.  In particular, the factors set out in paragraph 4(1) of Schedule 1 of the 1989 Act do not exist in the GMO. Paragraph 4(1) provides as follows:

“In deciding whether to exercise its powers under paragraph 1or 2, and if so, in what manner, the court shall have regard to all the circumstances including –

(i) The income, earning capacity, property and other financial resources which each person mentioned in subparagraph 4 [either parent] has or is likely to have in the foreseeable future;

(ii) The financial needs, obligations and responsibilities which each [parent] has or is likely to have in the foreseeable future;

(iii) The financial needs of the child;

(iv) The income, earning capacity (if any), property and other financial resources of the child;

(v) Any physical or mental disability of the child;

(vi) The manner in which the child was being or was expected to be educated or trained.”

21.  Notwithstanding those differences in legislation, it is now clear that the principles and guidelines set out in the line of English cases provide helpful guidance to the Hong Kong Courts in deciding claims under s 10(2) of the GMO [See H v S; WGL v ASB (Child Maintenance under the GMO [2013] HKFLR 391 at 404 and IDC v SSA [2013] 5 HKC 482]. In exercising its discretion under s 10(2) of the GMO, the Court should have regard to all the circumstances of the case, which include those matters set out in the 1989 Act [See WGL v ASB at 405/§57]. In IDC v SSA at 496-497/§37, the learned Judge followed the principles set out in the leading English case of iRe P [2003] 2 FLR 865. The Judge’s approach was specifically endorsed by the Court of Appeal on appeal [See [2014] 4 HKLRD 220 at 236/§48].

22.  A summary of the relevant considerations was set out by Bodey J in Re P (supra). Amongst other factors, those considerations include –

“(4) The respective incomes, earning capacities, property and other financial resources of each of the parents must be taken into account, together with their respective financial needs, obligations and responsibilities. The child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living (applying J v C per Hale J). However, one has to guard against unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child;

(5) In cases where the father’s resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child’s minority with reversion to the father, a capital allowance for setting up the home and for a car, and income provision (with the expense of the child’s education being taken care of, generally, by the father direct with the school;

(6) …

(7) The overall result achieved by the orders under Schedule 1 should be fair, just and reasonable taking into account of all the circumstances.”

23.  InJ v C (Child Financial Provision) [1999] 1 FLR, Hale J (as she then was) stated at p 154-155:

“However, although Sch 1, para 4(1) to the Children Act 1989 tells me to consider all the circumstances, I do not consider that any great weight should be attached either to the circumstances of T’s birth or to the length or quality of her parents’ relationship. There is nothing in the private law provisions to distinguish between different children on such grounds. The policy of the Child Support Act 1991 was that people who had children should support them, whether or not those were wanted children. As a general proposition children should not suffer because their parents are irresponsible or uncaring towards them…

In A v A (A Minior: Financial Provision) [1994] 1 FLR 657, Ward J (as he then was) set out the history of the powers of the court to make provision for the children of unmarried parents. Initially of course these were very limited and governed by an entirely different set of procedures, under the Affiliation Proceedings Act 1957, from those that governed the assessment of provision for children of married parents. The criteria for assessing periodical payments were assimilated to those of other children in the Domestic Proceedings and Magistrates’ Court Act 1978. But jurisdiction was still solely within the magistrates’ courts, lump sum provision was limited, and otherwise there were no powers to make capital settlements.

Those limitations were removed and a wider range of orders was provided for in the Family Law Reform Act 1987. This implemented two Law Commission reports on illegitimacy. The object of those reports was to remove the differences in the legal positions of children. The underlying principle was that children should not suffer just because their parents had, for whatever reason, not been married to one another.

Equally or course they should not get more. There is a long line of authority, beginning with Chamberlain v Chamberlain [1973] 1 WLR 1557, and continuing with Lilford (Lord) v Glynn [1979] 1 WLR 78, (1978) FLR Rep 427 and Kiely v Kiely [1988] 1 FLR 248, that children are entitled to provision during their dependency and for their education, but they are not entitled to a settlement beyond tthat, unless there are exceptional circumstances such as a disability, however rich their parents may be.”

24.  In the present hearing, the Mother’s Counsel conceded that:

(i) An application under s 10(2) of the GMO can be made for the benefit of both legitimate and illegitimate children;

(ii) When an application is made for the benefit of legitimate children, the father’s standard of living is a relevant factor in the Court’s assessment of the child’s reasonable needs;

(iii) An illegitimate child would have the same standard of living as her father if her parents had stayed together;

(iv) There should be no distinction between legitimate and illegitimate children;

(v) The father’s standard of living is a relevant factor in the Court’s assessment of the illegitimate child’s reasonable needs.

25.  The Mother bears a very high burden of showing that this Court was plainly wrong and had gone beyond the wide scope and ambit of ‘reasonableness” and/or “reasonable disagreement”.

26.  The Mother now clearly accepts that the Father’s standard of living is a relevant factor for the Court’s consideration. The Mother alleged that the Father has a lifestyle that is opulent beyond imagination. These are nothing but bare allegations. The Court has found the Mother’s evidence to be wholly unreliable.

27.  On the other hand, the Father has produced evidence of his standard of living, most of which were not in dispute. The Mother now says that the Father’s lifestyle was miserly. There was in fact no such finding. The Court found that the Father was comparatively frugal in the light of his wealth and that his lifestyle was that of an affluent businessman.

28.  The Father and his family lived in good residential areas. The size of his accommodation was never in dispute. He does not have a personal driver and has only one helper for a family of six. He has two cars, both of which were used cars. There is evidence to show that he and his family regularly travels in economy class. Even on the assumption that the Father’s credit card expenditure were entirely personal, such expenditure was in line with the lifestyle of an affluent businessman and nowhere near the opulence described by the Mother. As was rightly pointed out by the Father’s Counsel, the Court has already considered all the circumstances of this case. Although the Father’s standard of living was considered, the provision that has been made for the Child is already beyond what the Father is paying for his legitimate family.

29.  The Father only moved to Singapore and Korea in recent years. There is no basis to say that there are significant differences in terms of culture between the Father and the Child. As for education, the Father has undertaken to pay for all of the Child’s education expenses. The school was chosen by the Mother. There is not a shred of evidence to show that the Father’s legitimate children would receive any resources and support from the Father’s extended family.

30.  The Mother argued that it was inappropriate and unfair for the Court to take into account her means, financial position or earning capacity. This argument is clearly contrary to the principles set out in J v C (supra) and Re P (supra). The Mother’s other arguments in respect of the Carer’s Allowance will be dealt with below.

31.  The Father has conceded that he would be solely responsible for the maintenance of the Child. The provision for the maintenance of the Child was in fact decided on that basis. The Mother’s means, financial resources and earning capacity were only taken into account when the Court came to consider the question of the Carer’s Allowance.

32.  There is no quarrel that the Court must recognize the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility, the carer must have control of a budget that reflects her position and the position of the father, both social and financial and should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. On the other hand, whatever is provided is there to be spent at the expiration of the year for which it is provided. There can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day. In some cases, it may be appropriate for the court to expect the mother to keep relatively detailed accounts for her outgoings and receipt [See Re P at §§78-84; WGL v ASB at §§198-199; IDC v SSA at §§48-49].

33.  Contrary to what was alleged by the Mother in paragraph 4.4(a) of her Draft Notice of Appeal, there was a dispute as to whether she was in receipt of income. The Mother says that she has had no income since March 2012. However, according to her own documentary evidence, she continued to receive a salary from her family company until December 2012. She continued to have the use of the company car and the services of the company driver. The Mother alleged that the “salary” were in fact loans. Her allegation was directly contradicted by the company accounts she herself produced (which recorded the payments as salary or director’s remuneration).  Further, according to those company accounts, the Mother has withdrawn vast sums of money from the company. The Mother alleges that those sums were paid to her father. This was nothing other than a bare allegation.

34.  The Mother alleged that she held the shares in KWC Ltd on trust for her father and that the property in North Point was held on trust for her mother. Equity follows legal title. The onus was on the Mother to prove that those assets were trust property.

35.  Save for the Mother’s bare allegations, there was no evidence in support of the alleged trusts. The Court held a very dim view of the Mother’s credibility. Her evidence was rejected. There were 2 mortgages on the North Point property. The first mortgage is under the Mother’s name. She explained in her Form E that a second mortgage had been taken out by KWE Co Ltd (one of her family companies) without her knowledge. There was no explanation as to why part of the interest in this property had to be held on trust and why the first mortgage was taken out in her name. There was also no explanation as to how KWE Co Ltd could have obtained a mortgage without the knowledge or participation of the Mother.

36.  Even according to the Mother, the alleged loans from her family were only repayable when she has the ability to do so. In other words, even according to the Mother, those were soft loans.

37.  The Mother now argues that there was no proper basis to assume that she would resume gainful employment. In fact, it was the Mother’s own position that she would resume gainful employment once the Child’s condition was stable. According to the medical evidence produced by the Mother, the Child’s condition had stabilized by the time that she was one year old.

38.  The principles set out above are well established and widely applied both in Hong Kong and England. The Mother’s argument that the Father’s means is the sole criteria in the determination of the Child’s reasonable needs has already been firmly rejected by the English Court of Appeal in A (A Child_ [2014] EWCA Civ 1577 (7 November 2014’ 10 December 2014).

Carer’s Allowance

39.  The Mother says that the Court should not have taken the Mother’s means, resources and earning capacity into account. Her position is contrary to established legal principles. 

40.  The parties were never married. The Mother is not entitled to any ancillary relief, no matter how wealthy the Father is.

41.  However, it is well established that the court may include, as part of a periodic payments order for a child, an allowance for the mother, especially if the mother has to give up work or is unable to work because she has to look after the child [Haroutunian v Jennings (1980) 1 FLR 62 and A v A (A Minor) (Financial Provision) [1994] 1 FLR 657 applied in WGL v ASB (supra) at §194.

42.  The applicable principles relevant to the assessment of the Carer’s Allowance are also set out in Re P (supra). Firstly, the respective incomes, earning capacity, property and other financial resources of each of the parents must be taken into account, together with their respective financial needs, obligations and responsibilities. The child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living (applying J v C per Hale J). However, one has to guard against unreasonable claims made on the child’s behalf but with the disguised element of providing for the mother’s benefit rather than for the child.

43.  It was clear from Re P (supra) that an award of a carer’s allowance would be appropriate if:

(1) The father’s resources permit, AND

(2) The mother lacks significant resources of her own.

44.  There was no dispute that the Mother was the registered owner of a number of assets prior to the commencement of these proceedings. There can be no dispute that the Mother’s disclosure in her Form E was lacking in the extreme. She had failed to disclose her registered shareholding in KWE Co Ltd, various bank statements, security account statements, audited accounts of KWE and CNLG.

45.  Contrary to what is alleged by the Mother, a carer’s allowance is not compensation for her efforts. It is to allow her to have control of a budget to enable her to discharge her responsibility as the primary carer of the Child.       

46.  Under the Order, the Mother would have the benefit of free accommodation, utilities and general household expenses, a domestic helper, a brand new car of her choice and a driver. In other words, she was only asked to be responsible for her own personal expenditure. 

47.  Although the Court rejected the Mother’s evidence, the Order was made on the basis that the Hilltop property was the Mother’s sole asset and that she would not return to gainful employment until the Child reaches majority.

48.  The Mother’s ownership of the Hilltop property was never in dispute. Shortly before the trial, the Mother estimated that the market price of this property to be HK$30 million. The mortgage was just over HK$9 million in 2013. It would be much lower in 2015. Even assuming that the outstanding mortgage were HK$9 million, the net equity in the property would be HK$21 million. Assuming that the Court were wrong in respect of the Applicant’s other resources, family loans and ability to resume employment and that she would have to repay her family HK$12.5 million, she would still have HK$8.5 million upon the sale of the property. If her personal expenses were HK$50,000 per month, she would have sufficient resources for over 14 years (by which time, the Child would have reached majority).

49.  The Mother further argued that she should not be expected to resort to her capital assets (namely the Hilltop property). This argument is again clearly contrary to the principles set out in Re P (supra). The Father is under no obligation to make financial provision to safeguard the Mother’s future.

50.  The Mother’s argument is again wholly contrary to what the English Court of Appeal in A (A Child) (supra) held in answering the question “To what extent can the element of carer’s allowance take into account the future needs of the carer at the conclusion of the relevant child dependency by reason of the benefit to the emotional welfare of the child in knowing that his/her parent is not going to be rendered “destitute”?” in the negative.

Assessment of the Mother’s Credibility

51.  The Mother argued that the Court made negative assessments of her credibility based on matters that were never put to her at trial and that she should have been given an opportunity to respond.

52.  This is not a case where the Father’s evidence was preferred over the Mother’s evidence without the Mother being cross examined. It was clear that almost every head of claim was in issue at the time of the trial. The Mother’s own evidence was self-contradictory at the outset of the trial. Her assertions were evidently either contradicted by her documentary evidence or expert evidence. Her affirmation evidence was further contradicted by her oral evidence during the trial. The Mother bears the burden of proving her claim and it was up to her to clarify those inconsistencies. Her legal representatives have chosen not to do so, either in examination in chief or re-examination.

53.  The Mother has not sought to deal with any of the self-contradictions or inconsistencies in her own evidence. Instead, she says that the Court should have accepted her allegations on her mere say so, with total disregard of those inconsistencies and self-contradictions.

Particular Items of the Award

54.  Again, the Mother bears the burden of proving each of her claims. The Court found her to be a wholly incredible witness. Her evidence was rejected. Each of those claims have been dealt with in detail in the Court’s Judgment and I do not propose to repeat them here. The Court’s findings are based on findings of fact, credibility, primary facts and inferences, followed by a discretionary exercise.

Conclusion 

55.  The Mother merely says that the Court was wrong to reject her evidence. Her position is contrary to well established principles. She has not even begun to demonstrate that the Court was plainly wrong and outside the ambit within which reasonable disagreement is possible. In my judgment, the appeal does not have any reasonable prospect of success. There is also no other reason in the interest of justice why the appeal should be heard.

56.  In those circumstances, her application for leave to appeal must be dismissed.

Costs of the Trial

57.  At the end of the trial, the Court made that there be no order as to costs. Such order was in the form of an Order Nisi, to be made absolute unless objection was received within 14 days. By a summons dated 1 September 2016, the Father applied for a variation of that costs order. It was then revealed to the Court that the Father had made a sanctioned offer to the Mother in December 2014.

58.  At that time, the reimbursements of past expenses due to the Mother under the Court’s Order was HK$5,320,000. The Father has already made reimbursement of HK$2,970,000. In other words, the reimbursement outstanding at that time was HK$2,350,000. Under the sanctioned offer, the Father would pay a further lump sum of HK$1,000,000 for past expenses. In addition, he offered a monthly sum of HK$50,000 as carer’s allowance for a period of 3 years. If the sanctioned offer were accepted, the Mother would receive a further lump sum of HK$1,800,000, which makes a total lump sum of HK$2,800,000.

59.  The Father says that the Mother has failed to beat his sanctioned offer and that he is entitled to his costs of the trial. On the other hand, the Mother says that the lump sum offered under the sanctioned offer may be in excess of the Court’s award for reimbursement of past expenses. However, the concession to make reimbursement for past expenses at the rate of the maintenance awarded was only made at the time of the trial. The Court has awarded lump sums far in excess of what the Father says was reasonable in respect of the cost of setting up a new home (HK$300,000), the provision of a new car (HK$535,000), Hong Kong Identity Card reimbursement (HK$1,040), shortfall of outreach therapy (HK$163,000), HK$450 for the Chinese herbalist, shortfall of education and ECAs up to 31 December 2014 (HK$91,094), Laser treatment for strawberry haemangioma (HK$65,400), estate agent commission and deposit for a home at a maximum monthly rental of HK$80,000 (including management fees), School Debenture (HK$500,000) and provision of access to a private members’ club.

60.  As was explained in the Court’s Judgment, concession of most of the above mentioned items were only made during the trial. The award for the cost of setting up a new home and the provision of a new car was made by the Court after a full trial. In those circumstances, the most appropriate order is no order as to costs.   

Orders

(1)   The Applicant’s application for leave to appeal is dismissed;

(2)   Costs of and incidental to the Applicant’s application be to the Respondent, to be taxed if not agreed;

(3)   There be no order as to costs for the trial;

(4)   Costs of the Respondent’s application for variation of the costs order be to the Applicant, to be taxed if not agreed.