MALCOLM ERNEST GRAY v. DIANE CARY BARBER SERVINO

FACV No. 8 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 121 OF 2000)

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JUDGMENT ON COSTS

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Mr Justice Bokhary PJ:

1. The wife was awarded costs in the courts below. We made an order nisi as to costs which (i) affirmed the orders as to costs made in favour of the wife in the courts below and (ii) awarded the wife 80 per cent of her costs in this Court.

2. As to why we made such an order nisi as to costs, this is what Mr Justice Nazareth NPJ said in a judgment with which the other members of the Court agreed:

"As to costs, the wife was awarded all her costs in the Family Court and the Court of Appeal. The only matter upon which the husband has succeeded in his appeal is the deletion from the order made on the judgment summons, of the provision for a suspended sentence of six months imprisonment. This could not have accounted for more than a fifth of the overall costs of the entire proceedings in this Court and below. I would accordingly make an order nisi giving the wife eighty per cent of her costs of the appeal, and leave the costs orders below undisturbed. Such order nisi would become absolute within 21 days if no written application for some other order as to costs is made within that time."

3. With an extension of time to do so granted by Mr Justice Ribeiro PJ sitting as a single judge of the Court, the husband has filed a written submission asking that the costs awarded in the wife's favour below, or at least those awarded in her favour in the Court of Appeal, be also limited to 80 per cent. The wife's legal advisers have chosen to leave the matter to the Court without filing any written submission.

4. Having regard to all the circumstances including the relative importance of the issues on which the wife has succeeded and the single issue on which the husband succeeded and the basis of such success, we think that justice is best served by ordering that the order nisi as to costs be made absolute. We so order.

Accordingly the wife will have all her costs in the courts below and 80 per cent of her costs in this Court.