Cs v. Wct

FCMC 5660/2020

[2021] HKFC 206

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5660 OF 2020

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Coram : Before HHJ K.K. PANG (Disposal on papers)

Date of Respondent’s Submission : 9 September 2021

Date of Petitioner’s Submission : 4 October 2021

Date of Respondent’s Reply : 5 October 2021

Date of Handing down : 15 October 2021

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RULING ON COSTS

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1.By the summons dated 18 June 2021, the petitioner wife (“W”) applied for an order that she do have access to the children of the family, a son and a daughter (the “Children”), or alternatively video call access to the Children, on the son’s birthday, i.e. 16 July 2021. By the consent summons dated 9 July 2021, the parties applied for an order that W do have video access to the children and that costs be reserved for argument. By the order made by HHJ K.K. Pang on 9 July 2021, it was ordered nisi that there be no order as to costs. By the summons dated 23 July 2021, W applied for, inter alia, the variation of the costs order dated 9 July 2021 to the effect that the respondent husband (“H”) do pay her costs of and incidental to the summons dated 18 June 2021 and that application. By the order made by HHJ K.K. Pang dated 3 September 2021, by consent it was ordered that W’s summons dated 23 July 2021 be withdrawn and that the costs of the same be dealt with on papers.

2.This is the costs only proceedings of the issue on the costs of W’s summons dated 23 July 2021 for variation of the costs order dated 9 July 2021.

3.The court has a wide discretion as to costs. Under Order 62 rule 5(1) the court shall take into account: Under rule 5(1)(aa) the underlying objectives set out in Order 1A rule 1; Under rule 5(1)(d) any written without prejudice save as to costs offer; Under rule 5(1)(e) the conduct of the parties; Under rule 5(1)(f) whether a party has succeeded on part of his case even if he has not been wholly successful; Under rule 5(1)(g) any admissible offer to settle made by a party. Rule 5(2) provides that conduct for this purpose includes (a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (b) the manner in which a party has pursued or defended his case or a particular allegation or issue; (c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and (d) conduct before, as well as during, the proceedings.

Discussion

4.I take the view that the main issues of the present case include :-

(i)  The merits of W’s summons dated 23 July 2021;

(ii)  Who can be regarded as the successful party;

(iii)  Any admissible offer to settle made by a party/ conduct of the parties.

Merits of the summons dated 23 July 2021

5.In considering the appropriate costs order the court must have regard to the underlying objectives of CJR. One of these objectives is the discouragement of unnecessary or unmeritorious applications. On or about 10 June 2021, W through solicitors wrote to H requesting day access, or alternatively video access at about 10 a.m., with the Children on the son’s birthday. On or about 16 June 2021, H replied that he has taken day off to spend time with the Children and W could call the Children at 7:30 p.m. on the son’s birthday. W has pursued her summons dated 18 June 2021 on the base that H has unreasonably rejected her request for video access with the Children at about 10 a.m. on the son’s birthday. Nevertheless, it is plain that both parties actually agree W to have video access with the Children on the son’s birthday. The remaining task is for the parties to look for a convenient time only. Eventually, by consent an order was made on 9 July 2021 that W do have video access to the Children at about 1 p.m. on the son’s birthday. Despite W’s arguments to the contrary, this being a children matter, I take the view that it is appropriate to make no order as to costs of W’s summons dated 18 June 2021. Accordingly, W’s summons dated 23 July 2021 is unmeritorious.

Who can be regarded as the successful party

6.While H may be regarded as the successful party considering W’s withdrawal of the summons dated 23 July 2021, and it may be usual that an applicant has to pay the other side’s costs if he or she decides to withdraw an application, costs are always a matter of the court’s discretion, and the conduct of the parties is one of the issues to be taken into account by the court when deciding costs: Order 62 rule 5 of the Rules of the High Court, To Wai Chan v Aon Services Hong Kong Ltd [2015] HKLRD 811, Hong Kong Civil Procedure 2021, 21/5/9, 21/5/10.

Any admissible offer to settle made by a party/ conduct of the parties

7.The chronology relating to the parties’ negotiations is set out in the parties’ respective submissions. To recap, on 1 September 2021, W wrote to H proposing the withdrawal of the summons dated 23 July 2021 with no order as to costs. On the same day, H replied by making a request for costs of and incidental to the summons dated 23 July 2021. On the same day, W sent the 2^nd letter questioning how much costs H was requesting. In his reply, H asked for HK$12,000 and he did not even agree to leave the issue on costs be reserved.

8.I take into consideration as follows:

(1)  In the letter dated 17 June 2021, H’s former solicitors stated that, in order to save costs, they were instructed that H would continue to contact W directly for matters in relation to access arrangements. On 28 June 2021, H filed the Notice To Act In Person. Despite H’s argument to the contrary, I accept W’s submission that, at all material time, H was acting in person.

(2)  Despite H’s argument to the contrary, I accept W’s submission the fact that H decided to unilaterally file his opposing affirmation on 26 August 2021 was premature as directions were yet to be given by the court on evidence at that stage.

(3)  As such, when W sought to withdraw the summons dated 23 July 2021 with no order as to costs, thecosts incurred by H should have been minimal. I accept W’s submission that H’s request for costs of HK$12,000 is excessive.

(4)  On the above account, despite it is my view that W’s summons dated 23 July 2021 is unmeritorious, I accept that the sensible way to dispose of the matter at that stage would be for the parties to agree that the summons dated 23 July 2021 be withdrawn with no order as to costs. It was offered by W and unreasonably refused by H. It is unreasonable that H insisted on costs as he did.

(5)  Did H sensibly accept W’s offer dated 1 September 2021, the matter could amicably come to an end without further wasting the court and the parties’ time and resources attending the hearing dated 3 September 2021 or subsequently dealing with the costs of the summons dated 23 July 2021 on the papers.

(6)  All things considered, I accept W’s request that there be no order as to costs of the summons dated 23 July 2021.

Disposal

9.It is ordered that there be no order as to costs of the summons dated 23 July 2021 and these costs only proceedings, including reserved costs.

G. Surman and Christina Tseng instructed by ONC solicitors for the petitioner wife

Respondent acting in person