HMSE v. JJS

HCMP 1073/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1073OF 2017

(ON AN INTENDED APPEAL FROM FCMP NO 70 of 2008)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  The applicant is the mother of a child T who by now is 10 years old. By proceedings in Family Court in FCMP 70 of 2008, the mother claimed maintenance under the Guardianship of Minors Ordinance [“GMO”] from the father. The mother and the father have not been married to each other. An order for maintenance was made by Judge Chu (as she then was) in April 2009, including periodic monthly maintenance. In March 2010, the order was varied to provide for an additional monthly sum of $12,000 as accommodation allowance. On 31 March 2016, the mother took out a summons seeking variation to increase the monthly maintenance. That summons was scheduled to be heard on 30 March 2017.

2.  The hearing was aborted due to some change of position on the part of the mother.  Previously, the judge and solicitors for the father understood from what had been intimated by the mother at an interlocutory hearing on 13 September 2016 that the mother did not seek what the judge described as “a full mother’s allowance” though she reserved her rights for a travelling allowance to enable her to travel with T on holidays.  By a summons of 21 February 2017, the mother issued a summons seeking leave to revive her claim for full mother’s allowance.

3.  At a hearing on 8 March 2017, the judge heard the summons of 21 February 2017 granting leave to the mother to revive that claim.  At the same time, the judge also allowed the father to reinstate the application for discovery regarding the mother’s means which had previously been withdrawn upon the mother’s previous intimation on 13 September 2016. Because of that, the hearing of 30 March 2017 had to be vacated and the summons of 31 March 2016 adjourned to another date.  The judge took the view that the mother should pay the costs thrown away by the adjournment and the vacation of hearing date and he ordered accordingly.

4.  The mother sought leave to appeal against the costs order and the judge refused leave on 27 April 2017.  

5.  The mother renewed her application for leave to appeal against the costs order before us.  The application is opposed by the father and his solicitors lodged statement opposing the application on 1 June 2017.

6.  Pursuant to s 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

7.  This Court had said repeatedly that appeal against the exercise of discretion on costs carried a high threshold: see Ho Shu Kwong v Chiang Chun Yan [2002] 3 HKLRD 419; Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679; Poon Ching Man v Lam Hoi Pun [2016] 3 HKLRD 815.  The discretion can only be disturbed on appeal if the judge was plainly wrong or made errors of principle. 

8.  Having read the summons and two affirmations filed by the mother and the written submissions advanced by solicitors for the father, we are not satisfied that the appeal has any reasonable prospect of success.  Nor do we see any other reasons in the interests of justice to have the appeal heard. 

9.  In essence, the mother’s intended grounds of appeal can be summarized as follows:

(a) The mother had reserved her claim for “mother travelling allowance” at the hearing on 13 September 2016;

(b) It was the letter from the father’s solicitors, Chaine Chow & Barbara Hung [“CCBH”] dated 10 February 2017 which caused/triggered the mother to apply for the full mother’s allowance; and

(c) There was inconsistency between what was said by the Judge at the hearing on 8 March 2017 and what was stated in his written decision dated 27 April 2017 refusing leave to appeal.

10.  We have read the transcript of the hearing on 13 September 2016.  It clearly borne out the finding of the judge that the mother had informed the court that she would not apply for full mother’s allowance in the summons of 31 March 2016.  Thus, the judge is correct in holding that she had changed her position by her summons of 21 February 2017. 

11.  We fail to see any reasonable argument on the causal connection between the letter of CCBH of 10 February 2017 and the mother’s change of position.  We accept that the letter of CCBH did wrongly assert that the mother was estopped from claiming travelling allowance. However, that cannot justify a switch of position on the part of the mother from continuing with a claim for travelling allowance (plus a claim of nanny’s salary) to a claim of full mother’s allowance.  Had she confined herself to the original claims, viz including a claim for travelling allowance and nanny’s salary, the hearing date of 30 March 2017 would not need to be vacated.   

12.  We have also read the transcript of the hearing on 8 March 2017.  For present purposes, the crucial question is whether the judge decided the question on costs based on the implication of a full mother’s claim (as distinct from a claim for travelling allowance) at the hearing.  We are satisfied that the judge was not mistaken in this respect and his oral decision given on 8 March 2017 was based on the change of position in relation to the full mother’s allowance claim.  Thus, it was consistent with his written decision of 27 April 2017.

13.  Whilst the judge had admittedly been mistaken at one stage of the hearing as to the claim for travelling allowance, he subsequently rightly pointed out that since the mother sought to advance a full mother’s allowance claim, it would not be profitable to consider the matter from the angle of a claim restricted to travelling allowance.  Hence, the earlier misunderstanding on the part of the judge is not material to his subsequent decision on costs.

14.  In our view, the judge was fully entitled to come to the conclusion that the hearing of 30 March 2017 was vacated because of the mother’s change of position and to order costs against her on that basis. 

15.  For these reasons, we refuse to grant leave to appeal.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of Rules of the High Court, we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.      

16.  We also order the mother to pay the costs of the father in this application.  In breach of the requirement at para 14 of PD 4.1, solicitors for the father did not lodge any statement of costs.  We have repeatedly said that the omission to lodge statement of costs would result in sanction in terms of costs, see Islamic Republic of Iran Shipping Lines v Phiniqia International Shipping [2015] 1 HKLRD 44; Centaline Property Agency Ltd v Zhong Sheng Hong HCMP 2577 of 2014, 1 Dec 2014; Shine Grace Investment v Citibank NA HCMP 3177 of 2014, 9 Feb 2015.  In light of that, and having regard to the relatively lack of complexity in the application, we shall fix the costs of the father at $10,000 and the solicitors will have to explain to the father why he could not recover his full costs from the mother if they intend to charge him more than the amount ordered against the mother.