Npyj v. Smrc

FCMC 9098/2018

[2021] HKFC 179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9098 OF 2018

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Coram : Her Honour Judge Grace Chan in Chambers (paper disposal)

Date of Judgment : 2 September 2021

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JUDGMENT

(Leave to appeal in respect of a costs order)

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Introduction

1.On 10 March 2021, I dismissed the respondent husband’s application that I shall recused myself from this case (“Recusal Judgment”) and made a costs order nisi that he shall pay the costs of the petitioner wife of the application.  Since and in relation to the Recusal Judgment, he filed 2 further applications. He made an application to vary the said costs order nisi, which was dismissed by me in my decision handed down on 21 May 2021 (“Costs Decision”).  He then filed this application dated 2 June 2021 for leave to appeal against the Costs Decision.

2.As a matter of fact, he filed 2 other applications on 20 May 2021 and 2 June 2021 for leave to appeal against various case management directions/decisions of this court made in his absence on 9 April 2021 and an order made on 18 May 2021. Further, on 2 July 2021, he filed yet another application for leave to appeal against another case management direction, made in his absence, for him to reply to the petitioner wife’s questionnaires in ancillary relief matters.  These 3 applications for leave to appeal will be dealt with separately in another written judgment.

3.In so far as this application for leave to appeal against the Costs Decision is concerned, his grounds of appeal boil down to the complaint that I erred in law by delivering the Costs Decision prematurely without giving him a chance to file submission in reply, in breach of rule of law, due process, procedural fairness and nature justice and enshrined in Article 10 of the Bill of Rights Ordinance, Cap 383 and in breach of my own order dated 9 April 2021 which allowed to file submission in reply within 14 days.

Applicable law

4.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

5.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

Discussion

6.The court accepts that she gave directions on 9 April 2021 that the husband may file and serve his written submission in reply to the petitioner wife’s written submission within 14 days and that the Costs Decision was handed down before he might have filed his written submission in reply.

7.However, the court is of the view that the result of the Costs Decision would not have been different even if the husband had filed his written submission in reply and the same had been considered by the court. Importantly, his recusal summons was totally unmeritorious and all his allegations of “apparent bias” of this court were rejected by me. There is no leave to appeal application in relation to the Recusal Judgment. It is thus beyond argument that he is the losing party in all respects in the Recusal Judgment and that he should bear the costs of the recusal summons (See: the Recusal Judgment at §8-§14).

8.Due to the matters aforesaid, I conclude that there is no reasonable prospect of success in any of the grounds of the intended appeal of the husband. The husband has not proven that there is some other reason in the interests of justice that the appeal should be heard.  Hence, I refuse to grant leave to appeal to the husband.

9.As I see no reason why costs should not follow the event, I will thus make an order that the husband do bear the wife’s costs of and occasioned by this application, to be taxed if not agreed.

The petitioner (wife) present and acting in person

The respondent (husband) present and acting in person