Npyj v. Smrc
|
FCMC 9098/2018 [2021] HKFC 101 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 9098 OF 2018 ----------------------------
---------------------------- Coram : Her Honour Judge Grace Chan in Chambers (paper disposal) Date of written submission of the respondent : 6 May 2021 Date of written submission of the petitioner : 13 May 2021 Date of decision : 21 May 2021 ----------------------- DECISION (Variation of costs order nisi) ----------------------- Background 1.On 10 March 2021, I handed my judgment refusing the respondent husband’s application for, inter alia, that I shall recuse myself from further adjudicating upon any aspects of this case (“Judgment”). I made a costs order nisi that he should bear the petitioner wife’s costs to be taxed if not agreed. This is his application for variation of the costs order nisi such that the wife shall bear his costs, or that there be no order as to costs. 2.I gave directions that this application be dealt with by way of paper disposal. The following is my decision and the reasons therefor. 3.The parties of this case are no strangers to litigation in the Family Court. For this court alone, I have handed down 4 judgment since I seized of this matter from 29 September 2020. [1] The background of the parties and their litigation history can be seen from these previous judgment, which I shall not repeat here. Where applicable, I shall adopt herein the same abbreviations used in the aforesaid judgment. 4.I have considered the 94th affidavit of the husband, as well as his written submission.[2] In gist, he says that the costs order nisi should be varied because:
Discussion 5.There cannot be any dispute that costs are within the discretion of the court which shall have full powers to determine by whom and to what extent the costs are to be paid (See: Order 62 rule 3 of the Rules of the High Court). In so far as matrimonial proceedings are concerned, it is said that the family court judges have even wider discretion on costs. 6.The starting point for discussion on legal principles on costs are set out in the often quoted English authority of Re Elgindata Ltd (No 2) [1993] 1 All ER 232 at 237f-g, which can be summarised in the following:
7.In post-CJR era, the general rule on costs is : the starting point is that the unsuccessful party will have to bear the costs of the successful party/parties, unless the former can show that a different approach on costs should be adopted on the facts of the case. 8.Upon due consideration, I shall reject this application for varying the costs order nisi due to the following consideration. 9.First, the basis of the husband’s recusal application is that this court has “apparent bias” against him. All of his 13 grounds of alleged “apparent bias” were rejected by me with reasons provided. It is beyond argument that he is in all respect the losing party of his application. 10.Second, the husband submits that the wife is in contempt of the court by breaching the Consent Order. For example, she has failed to deliver the daughters to see him, or to allow them to him to take the daughters to visit the paternal grandparents overseas. 11.However, it is pertinent to say that there has not been any contempt application or proceedings taken out so far, not alone any findings of contempt and/or breach of the Consent Order on the part of the wife. Rather, our Court of Appeal has repeatedly noted in their various judgment/decision of this case that the daughters have refused to meet the husband. Further, in her recent decision on the husband’s application to vary a costs order nisi made on 22 February 2021, Kwan VP commented that:[3]
12.Third, the husband’s allegation that the wife’s conduct has given rise to an inordinate amount of court’s time cannot stand. The case history shows that since the Consent Order, the wife took out only minimal applications, whereas the husband filed 44 summonses which has taken up an extraordinary amount of court’s time. 13.As to his allegation on “stratospheric legal costs”, all this court needs to point out is that the parties have been acting in person since about the end of 2019. 14.Fourth, I do not agree that the recusal application of the husband is a children matter by its nature. Besides, this argument does not sit well with his recusal application that I should not continue to adjudicate on the ancillary relief of this case. 15.Due to the matters aforesaid, I cannot find any other reasons that a different approach on costs should be adopted in this case. The costs should follow the event. I therefore make absolute the costs order nisi of 10 March 2021, and order that the husband shall bear the wife’s costs of this application to be taxed if not agreed.
The petitioner (wife) present and acting in person The respondent (husband) present and acting in person [1] See §3 of the judgment of 10/3/2021. [2] The husband does not provide a copy of the authorities mentioned in his written submission. [3] CAMP 255/2020, [2021] HKCA 495, date of decision 16/4/2021. | ||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 9098/2018