TPF v. W

FCMC 16179 / 2011

[2019] HKFC 172

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16179 OF 2011

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RULING
(Costs)

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Introduction

1.  In my judgment dated the 16 January 2019, on the wife’s application to vary the maintenance for the child of the family, V, I made an order nisi to be made absolute in 14 days time that the Petitioner father do pay the Respondent’s costs to be taxed on a party and party basis if not agreed. In doing so I made the following comments:

   Costs

34.   The mother seemingly had no option but to issue this summons, given the father’s rather uncompromising stance. Given that, and notwithstanding the fact that both parties are representing themselves, I shall make an order nisi to be made absolute in 14 days time, that the father do pay the mother’s costs of and arising out of her summons on maintenance dated the 6 June 2017, to be taxed if not agreed on a party and party basis.

2.  On the 25 January 2019 the husband issued a summons asking that the order nisi be varied to no order as to costs. In his submission on costs dated the 21 June 2019 he highlights the mother’s apparent failures with respect to the litigation process. He accuses her inter alia of not making full and frank disclosure of her finances and of refusing to mediate. He does not however refer to his own short comings.

The issue

3.  Thus there is only one issue to be determined, namely what is the appropriate cost order to be made in this case, given the findings made by me in the judgment dated the 16 January 2019.

The judgment dated the 16 January 2019

4.  The case before me was essentially an application by the Respondent mother to vary the maintenance payments that had been agreed when the child of the family, V, was living with the father. The original court order was dated the 29 March 2012 and was based on a mediated agreement. On the 2 November 2017 the court made an order varying the original consent order on the child’s arrangement to reflect the fact that V had begun living with the mother. Thus common sense should have dictated that the original financial order would need to be amended to reflect the change in circumstance. Instead the father pursued the mother for non payment of maintenance, even though V was not living with him (see paragraph 6 of the judgment). This was both unnecessary and aggressive.

5.  At the end of the day I accepted the mother’s primary position that each side should be responsible for 50% of V’s costs. In general, I also accepted the mother’s estimates for costs and commented that the father’s estimates seemed very much on the low side. Although the mother had sought HK$10,000 per month and my order was for HK$6,600 per month, it would be fair to say that I came down more in favour of her than the father.

The law

6.  The law in relation to costs is well settled and not in dispute. It has been said that the issue of costs lies in the discretion of the court and that costs are normally expected to follow the event. It is also accepted that this presumption is more easily displaced in family proceedings than in others. (See for example, Z v X & C, CACV 166/2011). Reference may also be made to HK v BD, CACV 252 of 2009 unreported where the Hon Mr Justice Hartmann (as he then was) said as follows:

“78. In family matters, as in all civil proceedings, the basic principles are that costs are in the discretion of the court but that costs should follow the event except when it appears to the court that, in the circumstances of the case, some other order should be made. In family matters, because of their particular dynamics, the exercise of discretion is broader-based than in other civil proceedings. However, as was observed by Butler-Sloss LJ in Gojkovic v Gojkovic [1992] Fam 40, there still remains the necessity for some starting-point. That starting-point, as we have indicated, is that costs prima facie follow the event.

79. On behalf of the wife, the oblique criticism was made that the judge proceeded on the basis of “honours even”, that seemingly being the essential reason why he came to his determination that both parties should bear their own costs. We do not see that the judge can be criticised in that respect. If costs were to prima facie follow the event, it was necessary for the judge to identify who had been successful and who had not.

80. But there were of course many issues which the judge in the present case had to take into account in considering how best to exercise his discretion as to costs. It is a long established principle that, after analysing the case of each party, costs must be judged by way of overall impression.

(Emphasis added)

With respect I agree.

7.  The starting point referred to above in the leading case of Gojkovic v Gojkovic [1992] Fam 40, states as follows:

“There are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation: for instance (as I have already indicated earlier) material non-disclosure of documents. Delay or excessive zeal in seeking disclosure are other examples. The absence of an offer or of a counter-offer may well be reflected in costs – or an offer made too late to be effective. ... It would, however, be inappropriate, and indeed unhelpful, to seek to enumerate and possibly be thought to constrain in any way, that wide exercise of discretion. But the starting point in a case where there has been an offer is that, prima facie, if the application receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. That seems clear from the decided cases and is in accord with the Rules of the Supreme Court and the County Court Rules 1981 requiring the court to have regard to the offer. I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case prima facie costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that prima facie position”.

8.  This general approach has been routinely adopted in Hong Kong. It should also be noted that this case was in essence a financial application to vary maintenance for a child, which was considered de novo. Thus the starting point that costs should follow the event is less easily displaced than in other types of family related litigation.      

Conclusion

9.  Given the above, it seems to me that the correct order is that order nisi shall stand. Further, given that the Petitioner has failed in this application it follows that the Petitioner do pay to the Respondent the costs of and arising out of this application, also on a party and party basis to be taxed if not agreed.