WMC v. STW

CACV 162/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 162 OF 2009

(ON APPEAL FROM FCMC NO. 5382 OF 2006)

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BETWEEN

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J U D G M E N T

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Hon. Yuen JA (giving the judgment of the court):

1.  On 7 June 2010 we handed down the judgment in this appeal.  To recap very briefly, the Husband and Wife had signed a Consent Order to sell certain properties at specified prices before a certain date.  There was no evidence that there were offers meeting the prices by that date, but the judge nevertheless held that it was gross and obvious misconduct by the Husband when he refused to sell the properties after that date, and she ordered the Husband to pay an extra $1.5m to the Wife for the Bowen Road property and the Wife to receive at least $400,000 from the Hoi Tan property. 

2.  The Notice of Appeal (“N/A”) sought an order setting aside the judge’s order and that the Husband be ordered to pay only $3m as a lump sum to the Wife who would have to give credit for previous payments made by the Husband.

3.  The original N/A contained 6 grounds covering 3 points:

(1)      the Husband was not guilty of gross and obvious misconduct

(2)      the judge failed to take into account the shortness of marriage and the Husband’s post-separation contributions

(3)      the judge should have let the Husband adduce fresh evidence after the hearing but before judgment.

4.  About 3 weeks before the hearing of the appeal, the Husband filed a notice of motion to amend the grounds of appeal:

Point (1) remained, but was formulated differently (grounds 1 to 4).

Point (2) remained (ground 5).

Point (3) was deleted (ground 6).     

The order sought in the N/A was not amended so as to provide for alternative orders depending on which grounds succeeded on appeal. If alternative orders had been sought, the Wife would have been put to a decision whether to consent to one of them so as to reduce costs.

5.  At the appeal, leading counsel for the Husband argued grounds (1) to (4), and junior counsel for the Husband dealt with ground (5).  We allowed the appeal on grounds (1) to (4) and indicated we saw nothing in ground (5).  We made a costs order nisi that the Wife should pay the Husband’s costs of the appeal but that the Husband should pay the costs wasted by his amendment of the N/A, with certificate for two counsel.

6.  Both parties have applied to vary the costs order nisi.  Put simply, the parties have put forward the following points for argument:

(a)  the Husband wants the Wife to pay his costs of the application for leave to appeal (the judge had ordered the Husband to pay the Wife’s costs)

(b)  the Husband objects to the Wife getting certificate for two  counsel for the amendment of the N/A

(c)  the Wife does not want to pay costs (or pay only half of the costs) of the appeal because the Husband did not amend the order he was seeking.  She says she would have reconsidered her position if the husband had indicated any change.  And she points out that the Husband through junior counsel pursued ground (5), the purpose being to bring the end figure to $3m only.

(d)  the Wife does not want to pay costs of the application for leave to appeal as that occurred before the amendment to the grounds of appeal.

7.  Both parties provided submissions on 11 August 2010.  However as the Wife’s summons was worded generally such that the Husband was not apprised before the exchange of submissions of the actual order she was seeking, we ordered further submissions by both parties which were provided on 30 August 2010.

8.  We have considered the parties’ submissions.  Dealing first with point (c) above, we note that the Husband sought an order that he be ordered to pay the Wife only $3m (requiring the Wife to give credit for previous payments).  This order, the Husband accepts in para. 4 of the written submissions dated 30 August, “would have been the mathematical outcome should the Husband succeed on grounds (5) and (6) as well”.  In other words, the Husband had a two-pronged approach, one advancing grounds (1) to (4), and the other advancing ground (5), but the order he sought was on the basis that he would succeed on both.  For the reasons set out in our judgment of 7 June 2010, he succeeded only on the first approach.  This is a matter that affects the exercise of our discretion in ordering costs.

9.  As for points (a) and (d) regarding the costs of the application for leave to appeal, we consider that it was a necessary incident to the appeal, and as the original grounds (1) - (4) were essentially the same as those at the hearing of the appeal, we consider that the Wife should still be liable to pay those costs.     

10.  As for point (b), we consider that costs wasted by the amendment would not be substantial and there is no point in differentiating between one and two counsel in this respect.

11.  As a matter of completeness, we should record that it is for the taxing master to consider whether the costs of translating the transcript for leading counsel for the Wife should be included as part of the costs wasted.

12.  We would vary our costs order nisi so that it would read as follows: (1) the Wife do pay the Husband the costs of the application for leave to appeal; (2) the Husband do pay the Wife costs wasted by his amendment of the grounds of appeal; (3) the Wife do pay half of the costs of the appeal to the Husband; (4) all costs to be taxed if not agreed; (5) certificate for two counsel.  We would add for the avoidance of doubt that costs of applications to vary costs orders nisi are generally included as costs of the appeal.