NU also known as NU or UN v. KU also known as UK

FCMC 8035 / 2019

[2020] HKFC 178

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8035 OF 2019

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R U L I N G
(Costs)

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Introduction

1.  This Ruling arises out of a request by the Petitioner wife for her costs, following the withdrawal of three summonses issued by the Respondent husband, namely a summons dated the 17 December 2019, the 8 January 2020 and the 9 June 2020.

2.  These summonses all related to requests made by the Respondent husband that the Petitioner wife make certain payments to third parties e.g. the payment of a mortgage and management fees and other property taxes. The difficulty is that the Respondent’s applications were all misconceived, in that although his intention was clear and he appeared to be seeking some kind of maintenance pending suit, he actually sought an order that was outside the jurisdiction of the court. The other difficulty is that the Respondent was unrepresented at the time and although the situation was explained to him on at least one occasion, it seems that he did not fully understand. Thus although he was advised to issue an application in proper format, that never happened. The other difficulty is that he made essentially three applications that were very similar in nature.

3.  The wife, who is legally represented, says that the confusion surrounding these summonses has cost her money in terms of legal costs and that she should be recompensed for this in the normal way.

The law

4.  For the avoidance of doubt the law on costs is very clear. To summarize it is accepted that the issue of costs lies in the discretion of the court and costs are normally expected to follow the event. However, it is also accepted that this presumption is more easily displaced in family proceedings that in others.

Discussion

5.  Although the respondent’s applications were misconceived, the basis for them was not. He was perfectly entitled to apply for maintenance pending suit and for that application to be dealt with in the normal way. Whether there would have been any merit to his application is another issue.

6.  I also accept that the wife, through no fault of her own, also ended up spending some money on legal costs because of these applications. Her lawyers have submitted a Statement of Costs for Summary Assessment, in the sum of just under HK$38,000 – which, given the fact that all three summonses were ultimately withdrawn, seems very much on the high side.    

Decision

7.  The parties have recently filed a consent summons in which it is agreed that a property be sold and that 80% of the net proceeds of sale be paid into court pending either a final agreement between the parties or a court order.

8.  In so far as this application is concerned I have decided to exercise my discretion and order that the Respondent do pay half of the wife’s party and party costs, assessed at HK$10,000, such sum to be paid to the wife out of the husband’s share of the net proceeds of sale referred to above, either once there is a final judgment on the distribution of the family assets or there is final agreement in relation to this matter.

9.  Given that I have not fully agreed with either side I shall also make an order that there be no order as to costs in so far as this application is concerned.