NPYJ v. SMRC

FCMC 9098/2018

[2020] HKFC 136

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9098 OF 2018

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J U D G M E N T

(Amendment and variation of costs orders)

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1.  By a summons dated 15^th June 2020 (the Summons), the Respondent is applying for:

(1)  Amendment of the order dated 18^th May 2020 (the Order) under the slip rule; and

(2)  Variation of costs orders

2.  As a result of operational movement in the Family Court, these proceedings were transferred to Deputy Judge J. Chow. This application was hence made to the Deputy Judge. However, an application for amendment under the slip rule should be made to the Court who made the original order. In order to save time and costs, this Court will deal with the application by paper disposal. The hearing date of the Summons on 16^th July 2020 is vacated.

Background

3.  On 18^th May 2020, the Court heard a total of 11 summonses taken out by the Respondent. Some of the summonses were taken out on the same day. For the sake of clarity, the Court will refer to those summonses as summons A to K.

Summons A

4.  In these proceedings, the Petitioner (Wife) filed a notice of (intention to proceed with) an application for ancillary relief in respect of the former matrimonial home and 2 car parking spaces with the Land Registry on 9^th November 2017 (the Notice). The title of only one of those car parking spaces (namely L1-88) was attached to the title of the former matrimonial home. 

5.  By a summons dated 20^th September 2019, the Respondent applied for the vacation of the Notice (summons A).

6.  At the hearing, the parties reached an agreement that the Notice in respect of car park L1-88 would be lifted. In the event that car parking space L1-88 were sold, the Respondent shall pay 30% of the sale proceeds into Court. Since it was a settlement, the Court made an order of no order as to costs in respect of L1-88. The application for vacation of the Notice in respect of the former matrimonial home and the attached car parking space was in dispute and was fixed for hearing before Deputy Judge J. Chow. The costs of that application was reserved.

Summons B

7.  The parties reached a settlement in respect of the custody, care and control and access of the two children of the family (the children) on 4^th July 2020 (the Consent Order). Although the Petitioner agreed to access to the Respondent, the two children of the family have been highly resistant towards access and the Respondent has only been able to have two access with the elder child since the Consent Order. The Respondent alleges that this is the result of parental alienation by the Petitioner, whilst the Petitioner says that the children have refused access despite her best efforts to encourage the same. The Respondent has now taken out a series of applications in respect of access.

8.  By a summons dated 22^nd October 2019, the Respondent applied for defined access to the children (summons B). Thereafter, the Respondent has taken out various summonses for leave to adduce expert evidence in respect of therapeutic access, for temporary removal, for variation of custody, care and control and permanent relocation and for enforcement of the Consent Order. I will deal with each of those summonses in turn below.

9.  The Respondent’s proposed experts had not seen or spoken to the Petitioner or the children. However, they were of the view that there had been parental alienation. Summons B was contested and the Respondent appears to be relying on his proposed experts’ opinion (both for therapeutic access and variation of custody, care and control). Summons B can only be dealt with after the Court’s decision on the Respondent’s application for leave to adduce expert evidence. Summons B was therefore adjourned to be heard by Deputy Judge J. Chow with costs reserved.

Summons C

10.  The Respondent is involved in legal proceedings intituled DCCJ 4528/2019 with his former solicitors in respect of his legal costs. By a summons dated 24^th December 2019, the Respondent applied for discharge of his implied undertaking in the Family Court to use the documents in these proceedings in DCCJ 4528/2019 (summons C).

11.  The Respondent’s former solicitors were suing him for legal fees in DCCJ 4528/2019. The claim was contested by the Respondent. Summons C was taken out by the Respondent on the day before the trial of DCCJ 4528/2019. The Petitioner indicated to the Respondent that she would consent to summons C. Firstly, the parties were both unrepresented at that stage and were unable to file a consent summons. Further, the implied undertaking was not only given to the Petitioner but also to the Court.  Even if the Petitioner consented to the application, it was for the Respondent to satisfy the Court that the implied undertaking should be discharged. An application for discharge would have been necessary despite the Petitioner’s consent. In his Affidavit in support of summons C, the Respondent failed to identify the nature of his defence in DCCJ 4528/2019 or the documents in which the discharge is sought. Further, if the documents in these proceedings were necessary for DCJJ 4528/2019, it was difficult to see why the Respondent had only applied for discharge of implied undertaking on the eve of the trial when pleadings and evidence was already closed As a result, the Court raised a number of queries. The nature of the Respondent’s defence and the documents he required were only disclosed to the Court in a subsequent Affidavit. Unfortunately, the Courts were closed as a result of the Covid-19 situation and the Court was only able to deal with summons C on 18^th May 2020.

12.  As explained above, the Respondent would have had to take out an application even if the Petitioner had consented. In those circumstances, the Court made an order that there be “no order as to costs” for summons C. The Respondent never argued against this costs order.

Summons D

13.  The children have refused to see the Respondent. The Court had a children’s meeting with the elder child (the younger child having refused to even attend that meeting). With the Court’s persuasion, the elder child agreed to see the Respondent for a movie in the presence of the Petitioner and the social welfare officer. She also had access with the Respondent on a further occasion thereafter. As explained to the Respondent, it is fruitless to dwell on what caused the children’s resistance. It will take a lot of time and patience to rebuild his relationship with the children. Since the children are not receptive towards the efforts made by the parties, the social worker and social workers from PCCC, the parties were urged to comply with the terms of the Consent Order and seek professional help as soon as possible. Despite that, the dispute in respect of the appointment of a child therapist and parenting co-ordinator is still ongoing. The Respondent was of the view that the children should be ordered to see him and upon seeing him, all his problems with access would be solved. To that end, he has taken out a number of applications for temporary removal. This included a summons dated 31^st October 2019 for leave to take the children to the United Kingdom to see the grandparents. The matter came before the Court on 9^th December 2019.

14.  In the Consent Summons, leave had already been granted to both parties to take the children out of the jurisdiction from time to time for holidays. The application for leave was wholly superfluous. The Respondent’s problem was the children’s refusal to see him. It was difficult to see how the Respondent would be able to take them on a holiday in those circumstances. The summons dated 31^st October 2019 was dismissed with no order as to costs.

15.  By a summons dated 24^th December 2019, the Respondent applied for variation of the removal order and prohibition (summons D). He asked the Court to order that the children be in his care from 20^th to 27^th December 2019 and that the Petitioner be prohibited from removing the children from the jurisdiction from 21^st to 30^th December 2019. That summons was fixed for hearing on 25^th February 2020. Because of the Covid-19 situation, court operation had been suspended during the General Adjournment Period (GAP). During GAP, the Respondent made a number of applications to the duty Judges in respect of access. Those applications were rejected. By the time that the parties appeared before the Court on 18^th May 2020, the application had become obtuse. In those circumstances, the Respondent agreed to withdraw summons D. Normally, the applicant has to pay for the costs of an application that is subsequently withdrawn. However, since the withdrawal was due to circumstances beyond the parties’ control, the Court made an order that “there be no order as to costs”.

Summons E

16.  By a summons dated 17^th January 2020, the Respondent applied for temporary removal of the children for three proposed holidays (summons E):

(1)  22^nd January 2020 to 4^th February 2020 to Scotland;

(2)  3^rd April 2020 to 13^th April 2020 to visit his parents for Easter;

(3)  30^th June to 20^th July 2020 to visit his parents in France.

17.  The summons was fixed for hearing on 3^rd March 2020. The hearing could not proceed as a result of GAP. By the time of the hearing on 18^th May 2020, the application in respect of Chinese New Year and Easter had become otiose. With the pandemic situation in Europe at the time, it was more than likely that it would be unsafe for the children to travel over the summer holidays.

18.  In those circumstances, the Respondent agreed to withdraw his application. Again, since it was due to circumstances beyond the parties’ control, the Court made an order that there be “no order as to costs” for summons E.

Summons F

19.  By a summons dated 12^th March 2020, the Respondent applied for leave to adduce expert evidence (summons F). In the summons, the Respondent was seeking to adduce expert evidence in support of his application for therapeutic access. However, his experts came to a view that there was parental alienation on the part of the Petitioner. The Respondent then took out a summons for variation of care and control and permanent relocation on 13^th May 2020 (summons G). Although there is no such application, it is likely that he is also seeking to adduce the expert evidence in support of summons G. 

20.  The GAP was extended after summons F was taken out. This application is opposed by the Petitioner but because of GAP, she had not been able to file evidence in opposition. On 18^th May 2020, directions were given for the filing of evidence and the case was adjourned for argument before Deputy Judge J. Chow on 18^th August 2020 with costs reserved.

Summons G

21.  This is the Respondent’s application for variation of care and control and permanent relocation and is strenuously contested by the Petitioner. The matter came before the Court on 18^th May 2020. Directions were given for the filing of evidence, an updated social welfare report and an international social investigation report. The matter was adjourned to 18^th November 2020 before Deputy Judge J. Chow for pre-trial review. Obviously, costs would be reserved.

Summons H

22.  During GAP, the Respondent had also applied for leave to take out an inter-partes summons (the inter-partes summons) for enforcement of the Consent Order. It was clear from his Affidavit in support that he was alleging contumelious contempt of the Consent Order on the part of the Petitioner. There is a specific procedure for contempt. If he is alleging contempt, that procedure should be followed. The respondent cannot circumvent that procedure or the standard of proof for such applications by taking out an inter-partes summons. The Court therefore refused to hear the application and directed the Respondent to make an appropriate application. 

23.  By a summons dated 13^th May 2020, the Respondent applied for enforcement of the Consent Order (summons H). This is a matter which involved the alleged parental alienation and is basically a duplication of his application for defined access. The result of the Respondent’s various applications means that there will have to be another trial on the issues of custody, care and control and access. The most efficient way to deal with all the issues involving the children was for all the relevant summonses to be heard together. The matter was hence adjourned to 18^th November 2020 before Deputy Judge J. Chow. Costs would be reserved.

Summons I

24.  By a summons dated 13^th May 2020, the Respondent applied for non-molestation of the Petitioner’s former domestic helper (summons I). The matter came before the Court on 18^th May 2020, when the Respondent was asked about the legal basis of this application as the domestic helper does not come within the purview of the Domestic Violence Ordinance (Cap.189). The Respondent was unable to establish the legal basis of his application but asked for the matter to be adjourned, so that he could seek legal advice. The Court ordered that this summons be adjourned sine die, not to be restored unless the Respondent could establish the legal basis of his application. Costs were reserved.

Summons J

25.  This case was originally docketed in Court 10. Because the docket Judge was on extended sick leave, Court 10 was taken over by His Honor Judge Simon Lo. Unfortunately, the learned Judge was at University with the Petitioner and had not alternative, but to recuse himself from the case. Sick leave of the docket Judge expired on 1^st May 2020. By that stage and unknown to the parties, there was an imminent movement within the Judiciary to deal with operational needs. The docket Judge would not be available to hear the Respondent’s applications in any event and the case was due to be transferred to Deputy Judge J. Chow, who had kindly offered to take up the case. By a summons dated 13^th May 2020, the Respondent applied for the recusal of the docket judge. The matter was originally fixed before His Honor Judge Simon Lo. However, such an application must be heard by the Judge whose recusal is sought. The matter then came before this Court on 18^th May 2020. The Petitioner was opposing the application but has not yet had a chance to file her affirmation in opposition. When the Respondent was informed of the proposed transfer, he had the choice of proceeding with his application (whereupon the Court would give directions for filing of evidence and fix a date for argument) or withdraw the application. Since the case was going to be transferred in any event, the Respondent decided to withdraw the application to save time and costs. Leave for granted to him to withdraw the summons with no order as to costs.

Summons K

26.  Previously, the Petitioner made an application for interim maintenance for the children, whilst the Respondent applied for maintenance pending suit and legal costs contribution. The Court made an order for interim maintenance for the children and the Respondent’s applications were dismissed with costs. That order is pending appeal. By a summons dated 18^th May 2020, the Respondent applied for variation and/or discharge (summons K).

27.  This application is opposed by the Petitioner, who has not yet had an opportunity to file evidence in opposition. Directions were given for the filing of updated Forms E and evidence. The case was adjourned to 1`8^th August 2020 before Deputy Judge J. Chow and costs were reserved.    

The Summons

Application for Amendment Under the Slip Rule

28.  The Respondent took out the Summons for Amendment of the Order dated 18^th May 2020 under the slip rule. The Summons was originally fixed before Deputy Judge J. Chow. The Order dated 18th May 2020 was made by Her Honor Judge AN Tse Ching. An application for amendment under the slip rule should be made to the same judge and not to Deputy Judge J. Chow. In order to save time and costs, this Court will deal with the application by paper disposal. The hearing date of the summons dated 16^th July 2020 is vacated.

Names of Proposed Experts

29.  There was a typographical error in respect of the names of the proposed experts The application for amendment of the spelling of the names under the slip rule is granted.

Additional Terms in respect of Forms E

30.  The Court has ordered both parties to file an updated form E (paragraph 24 of the original order), for the purposes of the 1^st Appointment and the application for variation and/or discharge of the MPS order.  The Respondent is asking the Court to amend the Order by directing the parties to provide their bank statements, credit card statements and stock accounts. These are all documents required by Form E. This application is superfluous and is dismissed.

“Affidavits”

31.  The Court understands that the Respondent is Catholic All references to Affirmations will be amended to Affirmations/Affidavits under the slip rule.

Carpark Address

32.  The Court understands that the full address of car park L1-88 is required for vacation of the Notice. The full address of car park L1-88 will be inserted under the slip rule.

33.  In paragraph G(ii) and (iii) of the Summons, the Respondent is asking for an order that:

“(ii) Before any sale of the aforementioned car park, the Petitioner be required to forthwith cancel and withdraw the Statutory Demand she caused to be placed in the Hong Kong Standard on 9^th March 2020.

(iii) Furthermore, the Petitioner should be required to publish notice of such cancellation and withdrawal in the Hong Kong Standard (as well as in any other newspapers in which she has caused the Statutory Demand to be published) with a written apology in terms pre-approved by the Respondent and his solicitors.”

34.  There was never any application in respect of the above proposed orders, nor was the matter mentioned or argued. Further, this Court has no jurisdiction to make such orders, especially under the slip rule. This application is dismissed.

Compliance

35.  The Respondent is applying for an order that the Petitioner should comply with the amended order. Orders are meant to be complied with. This application is superfluous and is dismissed.

Other amendments

36.  The Court noticed that the Order dated 18^th May 2020 because of the sequence of the orders and the costs orders were not accurately reflected. The order is therefore amended under the slip rule to reflect the true intention of the Court in respect of costs, which was manifest. These amendments include the grouping of orders under the title of each of the summonses and separating the costs orders for each of the summonses or amending the order in the case of an accidental slip. The amended costs orders are all “costs reserved” orders for matters that have not yet been dealt with. A copy of the amended order has been delivered to the parties.

Variation of Costs Orders

37.  In paragraph C of the Summons, the Respondent is applying for variation of the various costs orders. These include the costs orders in respect of summons C, D, E and J. The Respondent also mentioned paragraphs 30(ii) and (iii).

38.  Firstly, there are no paragraphs 30(ii) and (iii) in the order. The application for variation of these alleged paragraphs is dismissed.

39.  The order was perfected, sealed and delivered to the parties well before the Summons was taken out. Those costs orders were orders absolute and not costs orders nisi. The Court has already reserved the question of costs for matters in which a dispute on cost was indicated.

40.  In Poon Ching Nam v La Hoi Pun [2015] 3 HKLRD 57, the Court held that:

“…there was no “new modern approach” under which the court enjoyed an unlimited power to revisit any previously perfected order, such power was to be exercised for specific and limited purpose only within well-defined parameters. The discrete categories of situations in which the court had the power to revisit its previous order which had been sealed were where the court:

-   Amended a previous order so as to reflect its original intention which was manifest as appearing from the body of the order or the judgment;

-   Amended a previous order in order to correct a clerical error or accidental slip;

-   Clarified, amended or supplemented a previous order under the “liberty to apply” provisions; and

-   Pursuant to applicable rules of court, amended a previous order, including but not limited to enlarging time specified in it.

Such power was exercised within well-settled confines (as opposed to the broad or blanket power as argued by P) and therefore did not violate the principle of functus officio”

41.  The Respondent’s present argument does not come within the above principles. To the contrary, he is trying to reopen the costs issue, when the same was not argued at the hearing. His application for variation of the costs orders is dismissed.

42.  In the event that I am wrong, the Respondent’s application for variation has no merit and are dismissed.

Summons C

(1)  In paragraph 11 of his 49^th Affidavit, the Respondent argued that all the applications heard on 18^th May 2020 could have been avoided if the Petitioner had complied with the Consent Order.  Summons C was an application for discharge of implied undertaking. This has nothing to do with the Consent Order. As explained above, the application would have had to be taken out in any event. This was a discrete application which has been fully dealt with. There is no reason to reserve the costs as suggested. 

Summons D

(2)  In respect of summons D for variation of removal order and prohibition, paragraphs 1 to 3 was withdrawn. Normally, an applicant is responsible for the costs in the event of a withdrawal. However, in the present case, the applications had become otiose because of the Covid-19 situation. There is no reason to reserve the costs. The Respondent indicated at the hearing that he has a costs argument in respect of paragraph 4 of this summons. Those costs have been reserved.

Summons E

(3)  For summons E, paragraphs (a)(1), (a)(2), (a)(3), (b) to (e) have been withdrawn. This was because part of the application has become otiose as a result of the GAP and the Covid-19 situation. More importantly, leave was already granted to both parties to take the children out of the jurisdiction from time to time for holidays. This application was completely inappropriate and superfluous.

Summons J

(4)  Summons J was withdrawn by the Respondent in an attempt to save time and costs, especially in view of the fact that the case was going to be transferred to Court 11 in any event. In paragraph 11 of his 49^th Affidavit, the Respondent alleged that the application would not have been necessary if the Petitioner had complied with the Consent Order. This was an application for the Court’s recusal. It has nothing to do with the Consent Order. The Respondent would have to take out the application even if the Petitioner had consented. This was a discrete application which has been fully dealt with, there is no reason for the costs to be reserved.

Costs of the Summons

43.  The Respondent’s application for amendment under the slip rule has nothing to do with the Petitioner. There is no reason for the Court to order costs against her, much less an order for costs on an indemnity basis.

44.  The application for variation are wholly unmeritorious and contrary to legal principles. I make an order that the costs of that application be borne by the Respondent to be taxed if not agreed.

Orders

45.  I made the following orders:

1.  The order dated 18^th May 2020 be amended as per amended order under the slip rule;

2.  No order as to costs for the amendments under the slip rule;

3.  The Respondent’s application for variation of costs orders is dismissed with costs to be taxed if not agreed.