Wsw v. Cslpc

FCMC 7214/2019

[2022] HKFC 263

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7214 OF 2019

________________________

________________________

Coram:  Deputy District Judge Jacqueline Lee in Chambers (Not Open to Public) (by paper disposal)

Dates of Written Submissions by the Petitioner:  2 November 2022 and 30 November 2022

Date of Written Submissions by the Respondent:  16 November 2022

Date of Decision:  15 December 2022

___________________________

D E C I S I O N

(Variation of Costs Order Nisi)

___________________________

The Application

1.This is an application made by the Petitioner (“Wife”) by summons filed on 25 August 2022 (“the Costs Summons”) to vary the costs order nisi made in the judgment from this court dated 12 August 2022 (“Judgment”).

2.The Wife seeks to vary the costs order nisi to an order that her costs of the ancillary relief proceedings be borne by the Respondent (“Husband”).

3.This Decision is to be read together with and for the sake of consistency and convenience I shall adopt the abbreviations in the Judgment.

The relevant legal principles

4.The court has a wide discretion in dealing with costs. It is also trite that in the family court, the discretion on costs maybe broader than in civil matters generally. In His Honour Judge Ivan Wong’s judgment in the case of SSLT v SMFC, [2020] HKFC 42, he wrote:

“23. Thus, the court has full power to determine by whom and to what extent the costs are to be paid. The discretion of the court is much wider in family cases and the starting point is more easily displaced than in any other civil proceedings. In TL v SN, CACV 196/2009(19 October 2010), Kwan JA, in her unanimous judgment for the Court of Appeal, reaffirmed that in matrimonial cases, as in other cases, costs should normally follow the event. This approach was reaffirmed in Z v X & C, CACV 166/2011 (8 March 2013) where Cheung JA said that costs should follow the event although because of the special dynamics of family litigation, the discretion may be broader than in civil matters generally: at [10].”

5.In Gojkovic v Gojkovic [1991] 2 FLR 233 at 238-239, Butler-Sloss LJ set out the matters that the court might consider when considering the issue of costs. She said:

“There are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation: for instance (as I have already indicated earlier) material non-disclosure of documents. Delay or excessive zeal in seeking disclosure are other examples. The absence of an offer or of a counter-offer may well be reflected in costs – or an offer made too late to be effective. ... It would, however, be inappropriate, and indeed unhelpful, to seek to enumerate and possibly be thought to constrain in any way, that wide exercise of discretion. But the starting point in a case where there has been an offer is that, prima facie, if the application receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. That seems clear from the decided cases and is in accord with the Rules of the Supreme Court and the County Court Rules 1981 requiring the court to have regard to the offer. I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case prima facie costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that prima facie position”.

Discussion

6.I have considered the affirmation filed by the Wife’s solicitors, as well as the parties’ written submissions. In gist, the Wife says that the costs order nisi should be varied because:

(a)  The Husband’s had failed to make full and frank disclosure of his assets and liabilities; and

(b)  The Husband’s misconduct in the litigation.

7.The Wife says she had put all her cards on the table. The Husband, however, had failed to give full and frank disclosure of his financial position.

8.The Husband criticizes the Wife for raising multiple contested issues between the parties, some of which were only given up by the Wife at trial or rejected by the court. The Husband had to expend substantial time and costs to address these issues before the Wife’s belated concessions.

9.Upon due consideration, I reject this application for varying the costs order nisi due to the following reasons:

(1)  While it is true that I ruled against the Husband’s evidence in the Judgment, and I found that it is more likely than not that the Husband do have some undisclosed assets, it is equally true that I did not accept the Wife’s case to disregard all of the Husband’s loans and the amount of the Children’s expenses as claimed by her.

(2)  The Wife only agreed to include her private bank account as matrimonial asset during her examination in chief.

(3)  The Wife “won” on some but not all of her case. She was successful in her arguments on reducing the Husband’s alleged liabilities, to adopt the surrender value of the Manulife Policy and excluding her bonus received on 20 January 2022 in the computation of available assets. However, she was not successful in terms of quantum in that I ordered:

(i)  a 55:45 split in her favour instead of 65:35; and

(ii)  a lump sum of HK$2,039,976 representing part of the Husband’s contribution to the Children’s expenses up to their age of 18, instead of HK$5.3 million.

The above is far less than the Wife’s open offer.

(4)  There is no evidence to suggest that either party’s offer, at any stage of the proceedings came close to the Judgment.

(5)  For the aforesaid reasons, I am of the view that none of the parties could be said as the winner of the ancillary relief proceedings.

(6)  Further, it appears that both parties may have to pay costs out of the same pool of matrimonial assets, the court has already determined the just and equitable division of the assets between the parties, an order of costs may have the practical effect of further shifting the proportions awarded. This unique aspect of matrimonial proceedings is absent in general civil disputes.

(7)  That being the case, I conclude that a fair order to make is “no order as to costs”.

Conclusion

10.For the reasons given, the Wife’s Costs Summons shall be dismissed. I make absolute the costs order nisi of the Judgment dated 12 August 2022.

11.The costs should follow the event. The Wife shall bear the Husband’s costs of this application to be taxed if not agreed with certificate for one counsel.

Petitioner : Mr. Eugene Yim instructed by Messrs Rita Ku & Ser

Respondent : Mr. Deepak Nagpal and Ms. Bonnie Cheng instructed by Messrs Chaine Chow & Barbara Hung