Lch v. Wpsn

FCMC 1936 / 2020

[2023] HKFC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1936 OF 2020

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DECISION

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Foreword

1.On 31/3/2023 this Court handed down its decision in respect of costs of an aborted summons dated 16/7/2021 taken out by the Petitioner Father (“F”) on the schooling arrangement of the 2 children of the family (“1^st costs decision”). Suffice it is to say that parties’ legal teams had already put forward extensive legal submissions on the principles governing costs on children’s matter. Those principles are of use in the present decision on costs of another application taken out by the Respondent Mother (“M”), this time in respect of the elder child’s schooling arrangement.

2.I do not intend to go through the background of this case in any detail other than necessary to do so since they had been sufficiently set out in the 1^st costs decision. Those descriptions and nomenclature used in the 1^st costs decision would be used in this decision. It was with dismay and regret to see parties have had to spend substantial legal costs once again over children matters which could have been readily resolved had the parties been frank, reasonable and co-operative with each other and always with the best interests of their children in their mind.

Events happened on 26/9/2022

3.On 26/9/2022, a letter was received from M’s lawyers Messrs. Chaine, Chow & Barbara Hung (“CCBH”) around 2:30 p.m. Attached with the letter was an Ex-Parte Summons (On Notice) and M’s 6^th Affirmation affirmed on the same day. In a gist, M sought for return of the 2 children, namely, GA and GS, from F forthwith. Leave was also sought for the elder child GA to study Year 4 at ESFCBS commencing 26/9/2022 or as soon as practicable.

4.Within an hour later, this Court received a letter from F’s lawyers Messrs. Ip & Heathfield (“IH”) around 3:15 p.m. Attached with the letter was a draft Inter Partes Summons and the F’s 7^th Affirmation affirmed on the same day. In a gist, F sought an immediate suspension of M’s “week-on-week-off” shared care and control arrangement of the 2 children and; in the alternative, that M be refrained from causing the elder child GA to attend ESFCBS and shall continue with her present schooling at SJCPS until further Order.

5.As a matter of fact, F had kept to himself both children on 25/9/2022 which would otherwise be the change-over date for the “week-on-week-off” shared care and control arrangement. F’s reason was that this would ensure the elder child GA would continue with her study at the SJCPS school the following day, that is, Monday 26/9/2022. As a result of F’s decision not to return the 2 children at the usual time of 5:30 p.m. on 25/9/2022 when M went to F’s place for the pick-up, police was called for assistance. Nonetheless, it ended up with F continued withholding the 2 children on 25/9/2022 which had led to M taking out the present urgent application.

6.A hearing was then arranged in the late afternoon of 26/9/2022 on M’s Ex-Parte Summons (On Notice). Though F’s Inter Partes Summons and his 7^th Affirmation had not been filed, this Court made it clear to the parties that F’s stance and position set out in his draft Summons and 7^th Affirmation was well noted when determining any appropriate interim reliefs that need to be granted at that hearing. Both parties attended the hearing with legal representation. F engaged Counsel Mr. Felix Li to appear on his behalf.

7.At the end, upon M’s lawyers’ undertaking to file and serve an Inter Partes Summons by 4 p.m. on 28/9/2022, the matter of GA’s schooling was adjourned to 6/12/2022 at 11:30 a.m. An interim order was granted for GA to attend ESFCBS on 27/9/2022 (that is, the next day) until further order of the Court. A social investigation report was called for on an urgent basis on GA’s schooling, to be written in Chinese, and to be available no later than 14 days before the next hearing.

Social Investigation Report (“SIR”)

8.On 22/11/2022, a social investigation report[1] was produced by Miss Tsui as per the directions of this Court given on 26/9/2022. This was actually the 3^rd social investigation report since commencement of these proceedings. The 1^st and 2^nd reports were prepared by 2 other social welfare officers.

9.In Miss Tsui’s report, she concluded that GA to continue to study in ESFCBS would minimise any emotional issues on GA and would not affecting her much on adjustment with schooling.

M’s costs application

10.M accused F suddenly and unilaterally withdrawn his express approval and consent for GA to join the younger child GS to study in ESFCBS. It was common ground that the younger child GS had all along been studying in ESFCBS. As per Recital C of the Children’s Maintenance Order dated 30/11/2020 which was reached by consent, F acknowledged that both GA and GS would attend the ESFCBS in the fullness of time. F had

also undertaken that he would pay or cause to be paid for both children regardless of which ESF school they attend. Actually F had accompanied GA for 2 rounds of enrolment interviews in 2018 and 2021 by ESFCBS but both of which were unsuccessful.

11.To further support her case that all along F had not objected to GA joining ESFCBS, M in paragraph 19 of her 6^th Affirmation referred to an extract of WhatsApp message with F on 20/9/2022 around 4:14 p.m.[2] :-

“M :	As you know GA school sjc is becoming more challenging. Unfortunately she failed twice in ESF interviews, what do you think if she gets the offer on her last interview.”

12.In the same paragraph 19, M went on to say :-

“………..In the said WhatsApp conversation, the Father did not raise any query about GA’s third ESF’s enrolment interview nor raise any objection thereto. It transpires that the Father was well aware of GA’s third ESF’s enrolment interview and has no objection thereto.”

13.M’s other complaint was that F had “kidnapped” the 2 children by refusing to return them to her on 25/9/2022, which was the date for change over of the “week-on-week-off” shared care and control arrangement. In so doing, the elder child GA would not be able to attend her first school day in ESFCBS despite the fact that GA had been successful in her 3^rd enrolment interview, and indeed the very last chance of enrolment interview given the ESF’s policy, and was eventually offered a place to study in Year 4 by ESFCBS.

14.Had it not been for F’s conduct aforesaid, M’s Ex Parte Summons (On Notice) would have never been taken out. Worst still, F was running a hopeless case with very little prospect of success. He had put GA through unnecessary strains and even suggested keeping the status quo for GA to continue her study in SJCPS despite the school does not best suit GA.

15.The marked disparity in wealth between her and F when F was running a hopeless case with very little prospect of success had reduced her resources available to look after the children. F’s conduct well justified her application for costs against him.

F’s opposition and his claim for costs

16.F’s first and main contention was that he had no knowledge whatsoever about the email from ESFCBS on 8/9/2022 inviting GA for an

interview on 20/9/2022 at 1:00 p.m. He was not informed by M of the interview either. It turned out that M attended the interview with GA behind his back although successfully obtained an offer of acceptance for GA to study Year 4 at ESFCBS. It was not until Friday, 23/9/2022 that he accidentally found out GA’s name appeared in ESFCBS student record when he was dealing with the younger child GS’s body temperature record. He was shocked and immediately instructed his lawyers to contact M’s lawyers on the matter and to voice out his disagreement to the change of school for GA.

17.Without being informed by M about or having a fair chance to take part in GA’s enrolment interview by ESFCBS, he was unable to come up with any informed decision as to whether the change to ESFCBS was suitable to GA. At that time, he considered that it was in GA’s interests not to “uproot” her status quo of studying in SJCPS which had lasted for over 2 academic years since GA started her Primary 1 there back in 2020. Further, in September 2022, GA had already started her Primary 3 in SJCPS for about a month. Switching over GA to ESFCBS required full consideration of all the circumstances then existed at that time which he was being deprived of by M’s discreet action behind his back, not even to say switching over within a couple of days after the weekend of 24/9/2022 to 25/9/2022, to start at ESFCBS on the following Monday of 26/9/2022.

18.For the so-called “consensus”, M referred to Recital C of the Children’s Maintenance Order back in November 2020. At the time of the “consensus”, GA had started her Primary 1 at SJCPS for 2 months since September 2020 after she had failed in her 1^st enrolment interview with ESFCBS around 2018. In April 2021, GA tried her 2^nd enrolment interview with ESFCBS but was again failed.

19.F then referred to the Schooling Summons taken out by him in the summer of 2021, this was the time after GA had failed in her 2^nd enrolment interview in April 2021, for enrolling GA (and also GS) with another school in Sai Kung, namely, the LSY school. According to F, this was hard evidence of his change of intent when compared to the time when Recital C was entered into in November 2020. F submitted that M in her opposition to the Schooling Summons did not advocate to change GA to ESFCBS but simply opposed changing the children to the LSY school. Even at the time prior to his withdrawal of the Schooling Summons, M once mentioned about the French International School (FIS) for the very first time as an alternative for GA but still not suggesting ESFCBS.

20.F submitted that this was also hard evidence that both of them (emphasis added), by that time which was around February/March 2022 prior to his withdrawal of the Schooling Summons, had actually reviewed and considered together the issue of schooling afresh. At the end, GA continued to stay in SJCPS without any change, completed her Primary 2 there and then started her Primary 3 in September 2022.

21.On the critical issue as to the absence of knowledge of GA’s third application with ESFCBS, it could be seen from the emails sent by ESFCBS to both F and M, that the email address of F was his business email account which had not been in use for some time. F’s case was that M was well aware of this and that F has another personal email account which F would be reachable. M took no steps to inform ESFCBS of the position or to inform him of the emails.

22.F submitted that this was an intentional plot of M as she knew quite well that he would disagree with GA changing school; or at least she was uncertain whether he would agree with the change. However, M did not bother to seek clarification or confirmation of consent from him about the change of school; or alternatively, getting across to him by filing a summons earlier and in good time. M filed her Ex Parte Summons (On Notice) on 26/9/2022 only upon knowing that he had accidentally discovered the matter on the Friday before (that is, 23/9/2022). M’s application was taken out as a “reactive measure” to safeguard any urgent application to be taken out by F, of which F actually did and then placed before this Court although they had yet to be formally filed. This was negative litigation conduct on the part of M.

23.F also referred to M sending over an email to SJCPS to withdraw GA’s place without copying to him such email. This also proved that M planned to keep him in the dark about changing GA from SJCPS to ESFCBS. This email to SJCPS from M was dated 21/9/2022 at 4:41 p.m.[3]

24.On the entire scenario, M has been less than forthcoming. Otherwise, there would not have been the urgent hearing on 26/9/2022. M only has herself to blame for not having taken out proper procedural course earlier. M’s concealment of GA’s change of school until being accidentally discovered by him at the last minute should be treated as oppressive and unreasonable litigation conduct. Costs incurred by M were all self-inflicted. Given this Court’s expression of having noted F’s stance of opposition from reading his Summons and 7^th Affirmation (although both of which had not been formally filed), costs incurred by F in his own application could be counted as his costs application against M.

25.F also made reference to a WhatsApp message with M around July 2022[4] when they were exchanging words on GA having extra lessons with one Miss B at SJCPS. Although the same WhatsApp was produced by M as Exhibit “WPSN 6-7” without a date for the WhatsApp, it was admitted by M’s lawyers at the hearing that it was in July 2022. The relevant part(s) are extracted as follows :-

“F :	She went to school for extra lesson ? You never update me GA is having esf interview again. Please tell me more details about it.
“M :	She applied esf as you know it after her last interview last year. But we don’t know when it will be. Of course I will update you when I know when the interview will be. She’s still waiting.”

26.It was F’s case that it ended up that M did not update him with any further details after this July 2022 WhatsApp message despite she had promised to do so in the said dialogue.

27.Towards the end of F’s Counsel’s written submissions, there was included matters revealed after the hearing on 26/9/2022 under the heading - “Unilateral communications between M and ESFCBS”.[5] In a gist, F referred to some emails exchanged between M and ESFCBS (including a few WhatsApp messages exchanged with an individual staff at ESFCBS) showing that M had all along been keeping him in the dark on GA’s third application. M even said to ESFCBS that F had “brain problems”[6] in her WhatsApp messages.

Discussion

28.There was not much dispute on the law and legal principles on costs between parties’ legal teams. The only area of contention lies with how this Court should exercise its discretion on costs justly and fairly (emphasis added) in light of the factual matters that had arisen leading to the M’s application and F’s intended application before this Court on 26/9/2022 and ended up with an urgent hearing in the late afternoon (from 16:03 to 17:46) on that day.

29.Same as F’s Schooling Summons in the 1^st costs decision, M’s Ex Parte Summons (On Notice) was disposed of without substantive argument of the follow-up Inter Partes Summons issued on 28/9/2022. F’s intended application as per his draft Summons and his 7^th Affirmation was noted by this Court at the hearing on 26/9/2022 and that the filing of them had been overtaken by events given the terms of the Order granted on 26/9/2022. M’s lawyers reasonably submitted that they would leave it to this Court to consider how much weight should be given to the credibility of F on his case of contention.

30.In the absence of a substantive hearing, the contents of M’s 6^th affirmation in support of her application and F’s 7^th affirmation (unfiled but affirmed) could not be tested on their credentials. The contents of the social investigation report prepared by Miss Tsui could only be read at its face value in the absence of her oral testimony in Court.

31.Given the wide discretion of the Court on costs; in particular over family cases, I accept F’s Counsel Mr Felix Li’s submissions that the

absence of filing of F’s intended Summons and his 7^th Affirmation would not deprive F’s right to claim costs as part of M’s cross application on costs. I would so consider accordingly.

32.F’s Counsel’s further submission that F’s ultimate decision for GA to stay in ESFCBS, upon reviewing the SIR, is sensible and prudent but not one which reflects the merit of his then application per se. F’s such ultimate decision should not to be taken as a factor against him in this costs application. It is only responsible and reasonable for F to come up to such ultimate decision to pay attention to the best interests of both of his children at all ongoing times.[7]

33.It was necessary to look into all the circumstances surrounding each and every step(s) taken by the parties before a fair conclusion could be drawn for F’s submissions. This brings me to refer to some salient point in time referred to by the parties’ respective affirmation evidence and exhibits.

(a)  The 3^rd ESF Application

(i)  There was a WhatsApp message in July 2022[8] where M said she applied ESF after the last interview last year. It was common ground that there was a 2^nd interview in April 2021 which GA had failed. Thus, the words “last interview last year” appeared in the July 2022 WhatsApp must mean the 2^nd interview in April 2021. M in paragraph 14 of her 6^th Affirmation then said : “Therefore, shortly thereafter, I made the third application to join ESF for GA”. The words “shortly thereafter” could only suggest that the third application was made also in the year 2021 to match with the words “last year” in the July 2022 WhatsApp message in order to make sense of the entire message.

(ii)  On this topic of the third ESF application, this was what F said at paragraph 14 of his 7^th Affirmation :

“….... In July 2022 when GA’s Primary 2 teacher Ms. B sent me a message informing me that she was helping GA during her summer break and that English homework had been set for her throughout the week to prepare for her “ESF interview”. I was very confused by this as I was not aware that there were any applications to ESFCBS. A mere 3 minutes after the message from Ms. B was received however, the Respondent sent a message to me saying that GA would be taking extra lessons with Ms. B. When I asked her about ESFCBS, the Respondent mentioned that she had made an application for GA last year (2021) and that application is apparently still pending and she was still waiting just in case there is an interview to be arranged by the school and she did not know when it would be. Nevertheless, she also gave me the reassurance that she would update me when the interview would be…..”

(iii)  Without F’s acknowledging that he knew that there was the third ESF application made by M after the 2^nd interview had failed, it was pertinent for M to show what she actually meant by what she said in the said July 2022 WhatsApp message. To this end, M had failed to do so since she had not produced or referred to any solid proof of evidence as to the time of making the third application. M merely said so in her own words which are essentially self-serving unless F knew about it and accepted it to be the case. This was not what had happened here. As the party making the third application, M has to prove it. Viewing from the evidential perspective, such proof was wanting.

(iv)  That said, I do not accept M’s statement at paragraph 16 of her 6^th Affirmation that : “….. In the said WhatsApp conversation, it transpires that the Father was clearly informed of GA’s third application to join ESF and the upcoming third ESF’s enrolment interview, yet the Father did not raise any objection to GA’s third application for ESF and third ESF’s enrolment interview.” How could M said F was clearly informed when her own WhatsApp message was unclear in the first place, in terms of when the third application was actually made ?

(v)  Put it simply, M was referring to the third ESF application whereas F was still thinking about the 2^nd interview (2021) which GA had failed. F’s curiosity was well justified since he had not been informed by M of the third ESF application save as to M’s own words which only happened to appear in the July 2022 WhatsApp message.

(b)  The ESFCBS Interview appointment e-mail dated 8/9/2022 at 3:45 p.m.

(i)   At paragraph 17 of M’s 6^th Affirmation, she was just stating the obvious and nothing more than that. She said the ESFCBS email was sent to her email account and to F’s email account. The issue was whether F’s email account could reach F and that it was F who, having received it, simply ignored the email.

(ii)  At paragraph 18 of M’s 6^th Affirmation, M jumped over to say :

“The Father did not raise any objection to GA’s third ESF’ enrolment interview.”

(iii)  To be fair to M, I accept that there was no obligation for her to verify whether the email account used by ESFCBS to notify F about the interview was a valid email account of F. I also accept that there was no obligation for M to inform ESFCBS that there was another email account of F. However, M failed to explain why she did not keep to her own words in the July 2022 WhatsApp message where she said : “Of course I will update you when I know when the interview will be…..”. M simply say nothing on her absence of updating F.

(c)  M’s WhatsApp message to F dated 20/9/2022 at 4:14 p.m.[9]

(i)  This message was also produced by F as Exhibit “LCH 7-3”. F was the receiving end of this WhatsApp message. The time this message was sent to him was 4:14 p.m. There was a follow up message from M using the punctuation “??” at 4:48 p.m. on the same day which F did not respond.

(ii)  In this WhatsApp message, M said :-

“As you know GA school SJC is becoming more challenging, unfortunately she failed twice in ESF interview, what do you think if she gets the offer on her last interview.”

(iii)  At paragraph 19 of M’s 6^th Affirmation, she said :-

“In the said WhatsApp conversation, the Father did not raise any query about GA’s third ESF’s enrolment interview nor raise any objection thereto. It transpired that the Father was well aware of GA’s third ESF enrolment interview and has no objection thereto.”

(iv)  At paragraph 16 of F’s 7^th Affirmation, he said :-

“..…..This message is now produced and shown to me marked “LCH 7-3”. Given this was a purely hypothetical question I did not think much about giving her an immediate response..…….”

(v)  Was F’s explanation reasonable in the circumstances ? Since I am not convinced that F had had knowledge of the third ESF application, it was only fair and natural for him to think M was making a hypothetical question which he did not see fit to give any immediate response. I accept F’s explanation.

(vi)  From another perspective, since M only received ESFCBS’s offer on 21/9/2022 at 3:41 p.m. (which was the following day (emphasis added)), it would also be fair to say that M was actually asking a hypothetical question herself. That said, how could M “complaint” or “accuse” F did not respond to her question, which was a hypothetical one as a matter of fact and in reality; and also in the mind of F ?

(d)  ESFCBS’s Offer as per email dated 22/9/2022 at 3:41 p.m.[10]

(i)  Same as the Interview appointment email, this was sent to both F and M at their respective email account(s), in respect of which F’s email account was the same one which was not in use. In this email, the first day class for GA to attend Class 4 was Monday, 26/9/2022.

(ii)  Included in the Exhibit “WPSN 6-14” there was an email from M to SJCPS dated 21/9/2022 at 4:41 p.m. to withdraw GA from SJCPS on 30/9/2022. In this email, M informed SJCPS that GA would be attending ESFCBS on Monday, 3/10/2022. This was a week after the date given in ESFCBS’s email which M did not provide any explanation in her 6^th Affirmation of the change from 3/10/2022 to 26/9/2022.

(iii)  Oddly though, not only was there no explanation from M as to the one week difference of the dates of 26/9/2022 and 3/10/2022, I noticed that the withdrawal email to SJCPS was dated 21/9/2022 which was before (emphasis added) ESFCBS’s offer on 22/9/2022. It begged for an explanation why M was able to foresee GA would be offered a place on the following day by ESFCBS when she wrote to withdraw GA from SJCPS on 21/9/2022 ? It also called for explanation why M would tell SJCPS that GA’s first school day at ESFCBS was 3/10/2022 but it then turned out to be a week earlier on 26/9/2022 ?

Concluding Views

34.On F’s “change of intent” submission, I find that it must fail for the following reason. F’s reliance upon events happened subsequent to Recital C in November 2020, such as his taking out of the Schooling Summons and the decision, be it jointly made with M as F so alleged, that GA to stay with SJCPS, to say that there was a chance of intent away from Recital C is wrong. Had there been any change of intent, the proper course and necessary step to take was to apply for discharge of Recital C. Unless and until there was a discharge or subsequent acknowledgement or arrangement in replacement or substitution, Recital C stands.

35.Whether F had unilaterally and unreasonably “withdrawn” from Recital C must be viewed in the full context against the circumstances that had arisen.

36.On the facts, F voiced out his disagreement immediately after he accidentally discovered on 23/9/2022 that GA had in fact changed school to ESFCBS and would be starting on 26/9/2022 (which was just over the weekend and only 3 days later). There was no evidence to show that the email account used by ESFCBS for sending the enrolment interview appointment or the offer of acceptance emails had reached F. There was no evidence either from M that F actually knew about GA’s third ESF application, not least to say the subsequent enrolment interview and the offer of acceptance.

37.In my view, what F had done in such circumstances was something reasonably expected from a parent who was given an unexpected and complete shock that his or her child’s schooling would be changed within the next 3 days. I would say F was simply forced to act “on the spur of the moment” of which, with hindsight, may or may not be the best option to take in the circumstances. F should not be blamed for being unreasonable or irresponsible in his action or reaction, save and except his refusal to return the children to M on 25/9/2022, given that M’s Ex Parte Summons (On Notice) just landed on his face within the small hours on 26/9/2022.

38.M’s claim for costs should not be allowed. Viewing objectively with care the entire sequence of events that had happened since GA’s third application was made by her ending up with her Ex Parte Summons (On Notice) taken out on 26/9/2022, it was obvious that at different stages M was less than forthcoming, if not “in good faith” or having come “with clean hands”.

39.Hence, it would be unjust and unfair for her to be able to seek costs against F for something which, as I would so describe it, was done “on the frolic of her own” even though it turned out to be justifiably done from the perspective of the best interests of the children. M should not be allowed to shield behind the best interests of the child for doing something which was less than forthcoming as a joint custodian parent with shared care and control of the children.

40.From the email sent by M to SJCPS cancelling GA’s place, she did mention 3/10/2022 as GA’s first day of schooling with ESFCBS.[11] It somehow turned out from ESFCBS’s email dated 22/9/2022 disclosed by M that GA’s first day of school was 26/9/2022. Why was that ? M offered no explanation anywhere in her 6^th Affirmation which was a supporting affirmation for the ex parte application and must fully and frankly disclose all material facts. The change of date from 3/10/2022 to 26/9/2022 which triggered the “urgency” must be a material fact.

41.It was only upon F’s follow up enquiry with ESFCBS which transpired that actually it was M who requested ESFCBS for bringing forward the first day of school from 3/10/2022 to 26/9/2022. M even agreed to pay ESFCBS the school fees for the whole month of September just for starting a week earlier.

42.F claimed that it was because 26/9/2022 was the first day of M’s turn of the “week-on-week-off” care and control arrangement. To ensure the status quo of GA to be able to stay with SJCPS until M’s change of school application was fully disposed of by this Court, F decided to refuse to hand over the children and seek immediate suspension of M’s “week-on-week-off” care and control arrangement.

43.I find some force in F’s reasons to refuse to hand over the children on 25/9/2022 given M’s unexplained bringing forward of the starting date intentionally or unintentionally to coincide with her week of the shared care and control. However, since such bringing forward was only revealed or came to light afterwards (emphasis added), F was still required and expected to hand over the children on 25/9/2022 which he had failed to do so.

44.That said, this Court directed at the hearing on 26/9/2022 that F should return the children to M giving force to the “week-on-week-off” shared care and control arrangement.

45.Given my observation that from the entire sequence of events, including but not limited to the moving forward of GA’s school starting date with ESFCBS from 3/10/2022 to 26/9/2022 unexplained and undisclosed (emphasis added) by M, it would only be fair and reasonable not to award costs to M even though I accept that but for her Ex Parte Summons (On Notice), she would not be able to receive the children back from F. In my decision, if F could be said to be the party at fault in the whole matter, M equally deserves such a comment.

46.With my observation on M’s conduct of GA’s change of school from SJCPS to ESFCBS, any question of disparity in wealth as the basis for claiming costs against F drifted away.

47.For all the above reasons, I decided that it was fair and reasonable that neither party should bear the costs of the other party. There should also be no Order as to costs of this costs application.

48.I will so order accordingly.

Orders

49.I now make the following Orders :-

(a)  There be no Order as to costs of and incidental to M’s Ex Parte Summons (On Notice) dated 26/9/2022 and the subsequent Inter Partes Summons dated 28/9/2022, including all costs reserved (if any)

(b)  There be no Order as to costs of F’s draft Summons and 7^th Affirmation dated 26/9/2022; and

(c)  There be no Order as to costs of this costs application.

50.This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Decision.

Mr Felix Li instructed by Messrs. Ip & Heathfield, Solicitors for the Petitioner (for written submission on costs)

Miss Barbara Hung of Chaine, Chow & Barbara Hung, Solicitors for the Respondent (for written submission on costs)