Pm (Formerly Known As Pj) v. Vm (also known as Mv)

FCMC 614/2020

[2021] HKFC 188

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 614 OF 2020

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Direction to be dealt with by way of paper disposal: 9 August 2021

Date of written submissions: 19 and 27 August 2021

Date of Ruling: 13 September 2021

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R U L I N G

(Costs)

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Introduction

1.This Ruling arises out of a summons issued by the Respondent husband, that the costs order nisi made in the judgment from this court dated the 23 September 2020, be varied to there being no order as to costs. (See his summons dated the 7 October 2020).  

2.In the original judgment, the court ordered inter alia as follows:  

1)  Order 4 contained in the court order dated the 6 March 2019 shall be varied in that the Respondent do pay interim maintenance for the two children of the family in the sum of HK$30,000 per month per child, such sum to be backdated to the 12 August 2020 and thereafter to be paid on the 12th day of each succeeding month until further order.

2)  There shall be an order nisi to be made absolute in 14 day’s time that the Respondent do pay maintenance pending suit to the Petitioner for herself in the sum of HK$4,800 per month, the first payment to be made on the 12 October 2020 and thereafter to be paid on the 12th day of each succeeding month until further order.

3)  … 

4)  …

5)  There shall be an order nisi to be made absolute in 14 days’ time that the Respondent shall pay the Petitioner’s costs of and occasioned by this application, on a party and party basis to be taxed if not agreed. There shall be certificate for counsel. The Petitioner’s own costs shall be taxed in accordance with Legal Aid Regulations.

3.By way of background I am told that this judgment has never been complied with. On the 5 August 2021 I also dismissed the husband’s subsequent application dated the 25 February 2021, in which he requested that the maintenance payments to be suspended. He was also ordered to pay the costs of and arising out of this subsequent summons on a party and party basis to be taxed if not agreed. It is of note that the court did not make this order on a “nisi basis” as I was very concerned at that stage at the litigation conduct of the husband that was seemingly exerting enormous financial pressure on the wife in a way that was clearly unconscionable. 

4.Generally, it almost goes without saying that this continues to be a very high conflict case with both parties on occasion putting their case at its very highest. There is also a potential preliminary issues trial pending, which involves other members of the husband’s family.

The law

5.The relevant law is not in dispute and can be found at Order 62 RHC on costs. To summarize it is accepted that the issue of costs lies in the discretion of the court and that costs are normally expected to follow the event.  This presumption is more easily displaced in family proceedings than in others. In exercising the courts discretion reference can also be made to a number of factors as set out in Order 62 r 5 including, inter alia, any without prejudice save as to costs letters, the litigation conduct of the parties and whether or not one or other of the parties unreasonably refused to mediate/negotiate.

Discussion

6.I should say at the outset that I do not intend to accede to the husband’s request in this respect. In particular, it is suggested that the order of the court is much closer to the husband’s position at the hearing than the wife’s. This is not fully accepted. Indeed, I tend to accept the wife’s position as set out in her submission as follows:

4.   Another reason given by R in support of this application is that R "is clearly the "winner" of the Variation Application" claiming that the numerical figure of the interim maintenance allowed by the Court is much closer to R's offer. The table/calculation presented in the 2^nd Affirmation of Liu Shan and R's submissions are one sided and misleading. They ignore the basis and findings on which the Court arrived at those interim maintenance figures and the different assumptions and basis of parties' respective open offer. For instance, many issues argued by R were ultimately ruled in P's favour - Variation Application was considered in the light that the issue of interim maintenance had never been fully and properly considered, P has very limited earning capacity, R should be wholly responsible for the household and children expenses including the monthly rent at HK$23,000, R's ability to pay and to borrow despite his claim of impecuniosity, P could have the assistance of a domestic helper. In particular, the calculation in paragraphs 7 & 8 of R's submissions is misconceived. It has failed to take into account the additional $4,800 awarded by the Court. R's open offer was HK$30.000 per month (inclusive of rent of HK$18,000) plus an undertaking to pay for the majority of children's expenses. The Court only accepted R’s undertaking to pay for 2 items directly and P was granted maintenance for another 6 items in relation to children's expenses which R insisted could be settled by him on "as is" basis, refusing to provide for these costs when the children are with P.  It is misleading for R to now rely on the figures of these items ultimately allowed by the Court to increase the number and present his open offer to HK$76,636.

7.The wife also states that the husband unreasonably refused to negotiate with her until it was too late, only sending a letter of offer on the 30^th December 2019, which was 5 working days before the hearing, which was initially set down for the 7 January 2020.

8.The husband for his part maintains that the wife persistently refused to take a reasonable approach to the original application. Whilst there is some merit in this, it is not accepted that this in turn meant that there was no possibility of any meaningful negotiations at all.

9.Ultimately I stand by my original comments as set out in paragraph 29 of the judgment, where I said as follows:

Costs

29. The wife has been more successful than the husband and she really had no alternative but to issue the current summons. She is also legally aided. In such circumstances I intend to exercise my discretion and make an order nisi to be made absolute in 14 days’ time, that the Respondent shall pay the Petitioner’s costs of and occasioned by this application on a party and party basis to be taxed if not agreed. There shall be certificate for counsel. The Petitioner’s own costs shall be taxed in accordance with Legal Aid Regulations.

Decision

10.Ultimately, the husband has not been able to convince me that there is any proper basis upon which I can vary the original order. In such circumstances I shall exercise my discretion and confirm the costs order nisi. The husband’s summons dated 7 October 2020 shall be correspondingly dismissed. Costs of this application shall also follow the event in the normal way, in that the husband shall pay the wife the costs of and arising out of his summons dated the 7 October 2020, on a party and party basis to be taxed if not agreed. There shall be Legal Aid taxation of the wife’s own costs.    

Messrs Boase Cohen & Collins are instructed to represent the Petitioner

Messrs Chaine Chow & Barbara Hung are instructed to represent the Respondent