Lpc v. Ckha

CACV 304/2022

[2022] HKCA 1512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 304 OF 2022

(ON APPEAL FROM FCMC NO 4670 OF 2019)

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Before:  Hon Cheung and Chu JJA in Court

Date of written submissions:  14 and 29 September 2022

Date of Judgment: 13 October 2022

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DECISION ON COSTS

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Hon Chu JA (giving the Decision of the Court):

The application

1.On 17 August 2022, this Court handed down our judgment ([2022] HKCA 1190) allowing the appeal of the respondent (“Husband”) against the maintenance pending suit (“MPS”) order made by His Honour Judge Own (“the Judge”) to the extent as set out in [57(1)] of the judgment.

2.We dealt with the costs of the appeal, the applications for leave to appeal and the application in the Family Court at [53] and [54] of the judgment as follows:

“53. Having regard to the fact that neither party has been completely successful in this appeal, it would be appropriate to make no order as to the costs of the appeal and the applications for leave to appeal, both before the Judge and this Court. We will make an order nisi accordingly.

54. As to the costs of the application in the Family Court, we are of the view that the costs order made by the Judge should not be disturbed as the Wife had to bring the application to obtain an order for interim maintenance for herself and the four younger children, and the Husband had unsuccessfully resisted the application.”

3.By summons filed on 30 August 2022, Husband applied to vary the costs order nisi to the extent that the petitioner (“Wife”) pays his costs of and incidental to the appeal (including the application for leave to appeal in CAMP 125/2022) and the costs in the court below, or in such a way as this Court deems fit.  However, in the written submission (at [12]), Ms Yip SC (together with Mr Tang for the Husband) only seeks to vary the costs of the appeal and does not seek to disturb the costs order of the Judge. 

4.The Wife opposes the application and seeks to confirm the costs order nisi and to have the costs of the present variation application.

5.We have indicated in our directions given on 1 September 2022 that the application will be determined on paper.  Our decision is set out below.  

The parties’ arguments

6.The thrust of the Husband’s submission is that this Court has adopted different, or, what the Wife puts it, double standards in dealing with the costs below and the costs of this appeal.  It is said that, on the one hand, we adopted the “had to” standard in not disturbing the costs order of the Judge (which awarded the Wife 80% of her costs) because the Wife had to bring the application to obtain an order for interim maintenance for herself and the four younger children and the Husband had unsuccessfully resisted the application; but, on the other hand, we used the “neither completely successful” standard in making no order as to the costs of the appeal and the applications for leave to appeal because neither party has been completely successful in the appeal.  It is submitted that the Husband had no alternative but to appeal to rectify the MPS order and to correct the Judge’s criticism of him and the Wife has not been successful in resisting his appeal, and the Husband can also be said to have been partially successful in the MPS application in that the Wife did not achieve her primary objective as stated in her summons as revised in her Open proposals.  Accordingly, Ms Yip argues, on either of the standards, there is no justification to depart from the norm of costs follow the event and the Husband ought to be awarded the costs of the appeal.

7.In response, the Wife argues that there cannot be a true comparison of this Court’s treatment of the two sets of costs due to the differences in (1) the nature of the MPS application and this appeal, and (2) the ways in which the arguments were advanced and considered by the Judge and this Court.

Our decision

8.In the Family Court, the Husband opposed the MPS application, taking the position that there should be no MPS for the Wife and the monthly maintenance for the four younger children staying with the Wife should be in the sum of HK$40,000.  He also opposed the Wife’s request to backdate the MPS payments. He Judge ordered MPS for the Wife and HK$46,000 as monthly maintenance the four younger children as well as backdating the payments to the date of the 1^st Petition. 

9.Although we allowed the Husband’s appeal, we only varied the amount of MPS for the Wife, as we did not agree with the Judge’s finding on the Husband’s ability to pay and also took the view that the Judge should have taken into consideration the Wife’s financial capability.  Importantly, we did not disturb (1) the Judge’s decision to order MPS for the Wife, (2) the monthly amount he ordered for the four younger children, and (3) his order backdating the payments. 

10.In summary, the Husband has substantially failed in his opposition to the MPS application, and his success in the appeal is also limited.  The Judge’s costs order and this Court’s decision not to disturb it should be understood in this light.  The Judge did not err, whether as a matter of principle or in the exercise of his discretion, in ordering the Husband to pay 80% of the Wife’s costs of the application (which included the unsuccessful application for contribution to her costs).  The outcome of this appeal does not alter the position, nor afford any basis for this Court to disturb the Judge’s costs order. 

11.We turn next to the costs of the appeal.  We take note of Ms Yip’s point that we did not agree with the Judge’s finding that the Husband had substantial investment in stocks which he hid away and his adverse comments on the Husband in this regard ([38] and [39] of the judgment).  While this issue of the Husband’s investment in stocks is a disputed issue in the appeal, we do not agree that it is the core issue.  We also do not agree that the Husband can be said to be the overall winner of the appeal.  As discussed in [9] above, the Husband’s success is limited, having regard to the issues in dispute and the overall outcome of the appeal.  Notwithstanding Ms Yip’s submissions, we remain of the view that neither party can be regarded as the winner in the appeal.

12.In short, the Husband’s arguments based on what were termed as “had to” and “neither completely successful” standards are inapt.  It follows that his complaint about different or double standards in the treatment of costs has no proper basis.

13.We also do not consider the costs order made by this Court (Yeung and Yuen JJA) in LJ v LWHH (Maintenance pending suit) [2003] 3 HKC 455 advances the Husband’s case.  As agreed by counsel, costs are in the court’s discretion.  In the exercise of its discretion, the court must have regard to the circumstances of each case.  The costs order nisi made in LJ v LWHH reflects the court’s exercise of discretion having regard to the circumstances in that case.  It does not inform the exercise of discretion in this case.

14.For the above reasons, we are not persuaded that the costs order nisi should be varied to the extent as sought by the Husband or at all.  Accordingly, we dismiss the Husband’s summons. 

15.In respect of the costs of this variation application, we see no reason to depart from the normal rule of costs follow the event.  The Husband, having failed in his application in the entirety, should pay the Wife’s costs. We so order. The Wife’s costs are to be summarily assessed.  Accordingly, we further direct that (1) the Wife shall within 7 days lodge and serve a statement of costs, and (2) the Husband shall within 7 days thereafter lodge and serve a statement of objection, if any.  The assessment will be conducted on paper.

Mr Neal Clough and Mr Desmond Leung instructed by John C H Suen & Co for the petitioner.

Ms Anita Yip SC and Mr David Tang instructed by Tso Au Yim & Yeung for the respondent.