C, Jam v. C, S (Nee P)

FCMC 13708 / 2018

[2020] HKFC 183

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13708 OF 2018

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R U L I N G
(Costs)

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Introduction

1.This Ruling arises out of the Petitioner husband’s application for the costs of the hearing on the 13 July 2020, and the wife’s summons dated the 21 June 2019 which preceded it.

2.In essence it is the husband’s case that he had complied with the summons dated the 21 June 2019 which stated as follows:

1.  The Petitioner do within 7 days of the date of the Order to be made herein provide to the Respondent’s solicitors: -

(1)  The complete monthly statements in respect of the Petitioner’s UBS account no. XXX-XXXXXX-01 (including Overview, Asset Evaluations, Transactions and Additional Information) from 1 January 2017 to the date of the Order to be made herein;

(2)  The complete monthly statements in respect of the Petitioner’s UBS account no. XXX-XXXXXX-02 (including Overview, Asset Evaluations, Transactions and Additional Information) from 1 January 2017 to the date of the Order to be made herein;

(3)  The Petitioner’s travel records from the Department of Immigration from 1 January 2017 to date.

2.   Such other directions as this Court deems fit and appropriate;

He says that he then, and very sensibly in my view, attempted to vacate the hearing in July, as it was, by that stage, largely moot.

3.It is not disputed that the parties subsequently filed a consent summons in which it was agreed that the husband would file and serve an affidavit in response to the wife’s 8^th affidavit dated the 21 June, which was filed in support of her application for specific discovery referred to above. The court order is dated the 14 August 2019. The matter was set down for argument with 2 hours reserved. However, it is the husband’s case that he did not file an affidavit in reply. Instead he provided the disclosure sought by the wife as set out in the summons referred to above and in his Answers to the Wife’s 2^nd Questionnaire dated the 29 November 2019. Further disclosure was provided on the 17 January 2020. The husband’s solicitors then wrote seeking to vacate the court hearing. These letters are dated the 17 January and 10 June 2020.

4.The wife then sought to introduce new matters that were unrelated to the original specific discovery summons. A late request was made by the wife to the court, to file and serve a further summons returnable on the 13 July, which was refused.

5.Thus the court is concerned with a very narrow issue – who should be responsible for the costs of the 13 July 2020. And should any other costs orders be made?

The law

6.For the avoidance of doubt the law on costs is very clear. To summarize it is accepted that the issue of costs lies in the discretion of the court and costs are normally expected to follow the event. However, it is also accepted that this presumption is more easily displaced in family proceedings that in others. It is possible for the court to take a number of different issues into account, including the litigation conduct of the parties.

Discussion

7.It seems to me that the hearing on the 13 July 2020 was unnecessary and should have been vacated. It was also inappropriate to seek to use this hearing for another purpose so late in the day. However, prior to that and certainly up until the husband had fully complied with the wife’s original summons, there is certainly a case for the wife to either have her costs, or for there to be no order as to costs.

8.I am also mindful of the fact that in reality the husband is currently paying for the wife’s costs in full. This does not mean however, that the wife can act with impunity. 

Decision

9.In so far as this application is concerned therefore I have decided to exercise my discretion and order that there be no order as to costs up to and including the 10 June 2020 (i.e. the date of the husband’s last letter seeking to vacate the July hearing), as by then it was very clear that the husband had substantively dealt with the wife’s summons of the 21 June 2019. Thereafter the wife shall pay the husband’s costs arising out of her original summons dated the 21 June 2019 and specifically the costs of and arising out of the hearing on the 13 July 2020, such costs to be agreed and in default of agreement to be taxed on a party and party basis. There shall be certificate for counsel. It is further directed that the husband may not enforce those costs until after the hearing of the party’s application for ancillary relief or earlier agreement, or further order of the court.

Mr. Richard Todd instructed by Withers for the Petitioner

Mr Jeremy S.K. Chan instructed by Stevenson Wong & Co for the Respondent