N v. W

FCMC 5026 / 2015

[2018] HKFC 137

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5026 OF 2015

----------------------------

----------------------------

---------------------------------------

RULING
(Costs)

---------------------------------------

Introduction

1.  This is an application by a Petitioner/Judgment Creditor wife for her costs. At the callover hearing on the 25 June 2018 I directed that this matter be dealt with by means of a paper disposal and I gave further directions that both parties do file and exchange short written submissions and for each to file and exchange replies – if so required. Infact the husband’s original submission ran to some 18 pages and both parties chose to file replies, so in total there are about 38 pages of submission plus other attachments.  

2.  The application for costs arose out of the wife’s judgment summons dated the 8 February 2018 in which she sought payment of the children’s expenses as follows:

1. The Petitioner and the Respondent be jointly and severally responsible for any fees associated with the psycho-educational assessment of Cs with Dr. O;

2. The costs of the Children’s medical/dental expenses with Dr T and Dr S shall be divided equally between Petitioner and the Respondent;

3. S shall continue to receive ongoing therapeutic support, the costs of which shall be divided equally between Petitioner and the Respondent;

4. Both the Petitioner and the Respondent shall be equally responsible for the Children’s other major expenses, which shall include the cost of school trips, school camps and any major items such as a computer for school purposes; and

5. The Petitioner and the Respondent shall each be responsible for respective costs of transporting the Children to and from school when the Children are in their respective care.

She claimed that the sum of HK$66,992.50 remained outstanding in this respect and she asked that the husband pay HK$67,622.50 in order to discharge the debt.

3.  It is not disputed that the husband did infact pay the debt, but given that payment was not made until Wednesday the 18 and Thursday the 19 April 2018, the wife argues that this payment came too late in the day and that legal costs were expended by her as a result. The next callover hearing was on Monday the 23 April 2018, which came less than two working days after all of the payments had been received. Thus the wife seeks her costs of and occasioned by the judgment summons on a party and party basis. The husband for his part maintains inter alia that he paid in good time, and that he did so in part so that legal fees would not be spent unnecessarily.

Background

4.  At the first callover hearing before me on the 23 April 2018, Mr Egerton of counsel appeared on behalf of the wife and the husband appeared in person. By that stage, as set out above, the husband had already paid the outstanding amount in full. Mr Egerton explained that the main issue before the court therefore was in relation to costs. The husband however used this opportunity to argue that he had infact overpaid and that this was a matter than needed to be taken into account. Consequently, the court asked the husband if he would be prepared to file a summons dealing with this issue, so that it could be dealt with properly. The husband agreed and this is recorded in the preamble of the order dated the 23 April 2018 as follows:

And Upon the Respondent agreeing to file a summons in support of the proposed application inter alia that he has overpaid the petitioner within 10 days from the date hereof (“Proposed Summons”).

5.  I then adjourned both the proposed summons and the issue of costs to the 25 June 2018. I also gave directions that both parties do file and serve affidavits and to file a short submission prior to the return hearing date. Unfortunately, despite being in court and notwithstanding the fact that I had asked the husband if he agreed to this course of action, he did not file the summons as agreed.

6.  Notwithstanding the lack of summons, the wife did file an affidavit in reply. The order stated that she should file and serve a reply to the Respondent’s affidavit dated the 23 April within 21 days of receipt of the proposed summons. Thus she was perfectly within her rights not to file, but she chose to do so nevertheless. In her affidavit she sets out her position with respect to the arrears and she also highlights the difficulties that she has encountered inter alia with respect to the husband paying for his half share of the school fees and other items.

7.  In her Conclusion she states as follows:

Conclusion

25. Her Honour Judge Melloy in her Ruling dated 8 September 2017 has accepted that I have been “wholly responsible” for all the major expenses for the children since 2011, as supported by documentary evidence which Her Honour accepted.  In the same decision, the Judge has also accepted that both parents should be equally responsible for the children’s expenses and that on the face of it, the Respondent’s earning capacity is greater than that of mine.  Having adjudicated on the matter and obtaining an Order from the Court that the Respondent should be equally responsible for the children’s expenses, I was forced to issue the Judgment Summons to enforce the Order against the Respondent due to his reprehensible conduct and blatant disregard for orders of the Court.  It would be wholly unfair and unconscionable if I were to bear the legal costs resulting directly from the Respondent’s defiance of the Order.  Even in his solicitors’ letter (sent a few weeks before the hearing), they indicated the Respondent will try to borrow funds to pay for the expenses but it was not until the 11^th hour that the Respondent settled the Judgment Summons.  The Respondent had ample opportunities to settle earlier but ignored my repeated demands and in turn, made my life difficult by forcing me to resort to Court and unnecessarily driving up my legal costs.  I pray that the Court will see through the Respondent’s unreasonable tactics and award costs of my application against him.

26. I affirm that as of the date of the swearing of this Affirmation, save for my legal costs, all the children’s expenses under the Judgment Summons are settled.  Since the issuance of the Judgment Summons, I have incurred more expenses for the children and the receipts of all these been provided to the Respondent but he continues to be difficult about these expenses. I pray that this Honourable Court will direct the Respondent to pay for my legal costs forthwith, which I hope will deter him from breaching the Order again.

8.  The husband then filed a fairly indignant affidavit in reply dated the 22 June 2018, which seems to be mainly about the children’s expenses and other matters pertaining to the children. In conclusion he states as follows:

24. I therefore respectfully ask Her Honour Judge Melloy to:

a.   Order the Judgement Summons against me invalid, to order the Petitioner to pay me HK$6,254 that should not have been forcibly claimed from me in the first place, to cancel the Petitioner's claims against me, and award me the costs of HK$HK$28,057.50 I have unnecessarily incurred refuting the Petitioner’s unjust claims against me.

b.   Make an order requiring the parents to obtain written approval from the non-purchasing parent for any items intended to be purchased or booked on behalf of the children and jointly claimed, prior to the purchasing or booking of the item.

c.   Make an order that the Parents inform each other of their intention to book either child in for medical procedures or consultation and provide each other with booking details of said appointments at the time of booking or within 1 day.

9.  For the avoidance of doubt if either party wishes to vary the court order dated the 8 September 2017 then they MUST file the appropriate summons. The court will not deal with the matter otherwise. It is not possible for the court to make the order that the husband seeks given the current circumstances.

10.  At the return hearing on the 25 June 2018 Mr Egerton reiterated that it was the wife’s case that everything had been paid that was due and owing under the original judgment summons and that there were other items that were now due and owing, but that she accepted that this would need to be subject to a second judgment summons. He stated that the husband had not filed the summons and thus that the only outstanding issue related to costs. With respect  I agree. The only matter currently before the court and therefore the only issue that I am now asked to determine relates to the costs of and arising out of the judgment summons.

The law 

11.  The law in relation to costs is well settled. 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 – especially where there are matters to be resolved concerning children. I have noted that in this instance that the outstanding issues although child related, were financial in nature.

Discussion  

12.  I accept that the wife had tried to resolve matters with the husband and that she was initially within her rights to issue the judgment summons. I also accept that service was somewhat difficult, which only served to increase costs unnecessarily. However, some credit must be given to the husband for eventually paying the outstanding amount in full – although I accept that he did so rather late in the day. Further credit should also be given to him for doing this notwithstanding his concerns re overpayment.

13.  The husband argues that the payment did not come too late and that there was no need for further legal costs to have been expended. With respect I do not agree. The wife was within her rights to instruct counsel – especially one who has been very involved with the intricacies of her case. Most counsel would expect a brief to be delivered at least one week before a proposed hearing. In this instance the brief was delivered on the 16 April 2018 for the hearing on the 23 April 2018. This is not unreasonable.

14.  The matter may have ended there and directions could have been given on the 23 April for a paper disposal of the costs issue only. However, the husband took this opportunity to raise the issue of the over payment, but did not then issue the appropriate summons, despite confirming his agreement to this course of action during the hearing. It was for this reason that the court gave the parties a further callover date on the 25 June 2018. Had the husband issued a summons seeking to vary the original court order further directions could then have been given for this matter to be dealt with in a short hearing.

15.  The husband makes further allegations against the wife. He says that she has deliberately instructed expensive lawyers and that there was no need for her to instruct counsel, especially as he was acting in person. He said inter alia

c.   The Petitioner hired Robertson’s who are experienced family solicitors who were perfectly capable of appearing in court on the Petitioner’s behalf for such a small judgement Summons claim of HK$66,992.5 (actual amount due was only HK$41,927, which has resulted in the difference causing this dispute).  In fact, Robertson’s representatives (3 of them) were in court on each occasion. Why the Petitioner then chose to unnecessarily engage Senior Junior Counsel on multiple occasions to represent her is beyond me, especially knowing that I was representing myself and have no legal training of any sort. The only conclusion I can draw is that it was the intention of the Petitioner to drive up legal costs as high as possible to beggar me financially to make it difficult for me to proceed with my Section 17 case in the High Court.

Although this may be the husband’s belief there is nothing currently before the court to substantiate this.

Conclusion

16.  Generally speaking the Family Court encourages parties to settle and when they do so they are not normally penalised in costs. In this instance settlement only came very late in the day, making further legal expenditure for the wife inevitable. Other costs ensued because the husband did not proceed as directed by the court. Although I accept that some leeway should be given to him because he is acting in person, there is no doubt that costs have increased for the wife because of this. Given all

of the prevailing circumstances I will therefore make an order that the husband do contribute towards 50% of the wife’s costs of and arising out of the judgment summons dated the 8 February 2018 such costs to be taxed on a party and party basis if not agreed. There shall be certificate for counsel.