Yf v. Wmp

FCMC 1226 /2021

[2025] HKFC 132

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 1226 OF 2021

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RULING
(Variation of Costs order Nisi)

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1.On 11 July 2024, Master Chak dismissed the respondent’s 2 applications for variation of maintenance in favour of the parties’ children due to his absence at the hearing.

2.On appeal by the respondent, by a Judgment dated 27 November 2024 (“the Judgment”) I set aside Master Chak’s Order. At the same time, I made an order nisi (“the Costs Order Nisi”) that the petitioner is to bear the costs of the appeal, summarily assessed at $2,000; see: [2024] HKFC 215.

3.The petitioner is not happy with the Costs Order Nisi. She seeks to have it reversed.

4.For convenience, I shall continue to refer to the petitioner as “the wife” and the respondent “the husband”. I shall use the same abbreviations and nomenclatures adopted in the Judgment.

5.I need to mention that the wife also applied for leave to appeal against the Judgment. The application was dismissed on 27 November 2024 (“the Leave to Appeal Judgment”): see [2025] HKFC 50.

A Brief Chronology

6.The brief chronology of the events is as follows. The references to paragraphs in the chronology below are references to paragraphs of the Judgment.

(1)  On 19 March 2024, the husband took out 2 summonses for children’s maintenance which were fixed to be heard on 3 May 2024 (“the Husband’s Hearing Date”) before Master Stanley Ho (“Master Ho”): see [19].

(2)  On 29 April 2024, the wife took out her own summons for children’s maintenance returnable on 11 July 2024 before Master Chak: see [20].

(3)  On or about 29 April 2024, the wife wrote unilaterally to Master Ho seeking vacation of the Husband’s Hearing Date for the purpose of having both parties’ applications to be heard on 11 July 2024: see [21] & [22].

(4)  The wife’s application was granted by Master Ho on 2 May, 2024, one day before the Husband’s Hearing Date. Master Ho vacated the hearing and had it re-fixed to 11 July 2024: see [23].

(5)  On 5 May 2024, the husband wrote to the Registry that he would not be able to attend the hearing of 11 July 2024 for the reason that he and the 2 children would be on a trip to the UK during the entire month of July: see [25].

(6)  The husband’s letter was only brought to the attention of Master Chak on 2 July 2024 who directed that the hearing of 11 July 2024 remained unchanged: see [26].

(7)  On 11 July 2024, the husband did not appear at the hearing. Thereupon, Master Chak made the Striking Out Order due to his absence: see [1] & [27].

(8)  The husband then lodged an appeal and was successful before me.

7.As I have already set out the factual background and my reasons in the Judgment, I do not propose to repeat the same here. This Ruling has to be read together with the Judgment. In gist, as set out in the Judgment, I considered that:

(1)  Master Ho erred in acceding to the wife’s application for the moving of the Husband’s Hearing Date: see [32] to [34]; and

(2)  Master Chak erred in the exercise of her discretion to make the Striking Out Order.

Legal Principles

8.It has been said that while, in respect of costs, a court in family matters has a largely unfettered discretion to do what is just in the circumstances, that discretion must be exercised judicially; that is, in accordance with certain accepted principles: F v F (No 2) [2003] 3 HKLRD 976, at [8].

9.In general terms, apart from children’s cases, the starting point on costs in matrimonial and family proceedings, as they are in civil litigations, remain to be “costs follow the event”: Re Elgindata Ltd (No. 2) [1992] 1 WLR 1207; Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233; see also Order 62, rule 3(2) & (2A), RHC. That said, it has been opined by the Court of Appeal that because of the special dynamics of family litigation (e.g. where the case involved children, or where financial resources were inadequate to meet the needs of both parties, etc.), the discretion may be broader than in civil matters generally: L v. C, (unreported; CACV No. 169/2006, 9 March, 2008), at [23].

10.Broadly speaking, in the exercise of its discretion in civil cases including matrimonial and family cases, the court will have to take into account, where appropriate in the circumstances, the special matters set out in Order 62, rule 5 of RHC. Order 62, rule 5, states,

(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account-

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A(2);

(d) any written offer which is expressed to be "without prejudice save as to costs" and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(g) any admissible offer to settle made by a party, which is drawn to the Court's attention.

(2) For the purpose of paragraph (1)(e), the conduct of the parties 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.

(emphasis added)

11.When I deliberated on the costs issue, the most relevant factor was the wife’s conduct in relation to the vacation of the Husband’s Hearing Date. For the reasons that I set out at [40] to [43] of the Judgment, costs were awarded against her.

The Wife’s Grounds

12.The wife has made a number of repetitive paragraphs in her affirmation dated 11 February 2025 in support of her application. Her grounds can be summarized as follows.

13.First, the hearing date of 11 July 2024 (ie the date on which W’s summons was to be heard) was given by the Listing Officer. She did not ask for it.

14.Second, it was the husband who failed to reschedule the hearing of 11 July 2024 by taking out a proper application despite ample time or opportunity to do so between the Husband’s Hearing Date (ie 3 May 2024) and 11 July 2024. If the wife had been so requested by the husband, she would have no hesitation whatsoever to give her consent for rescheduling.

15.Third, this court tried to absolve the husband’s responsibility and any responsibility on “the Court’s/Registry’s part in this process”. The court personnel had been at fault but I improperly blamed the wife for the husband’s actions (ie the appeal).

Discussion

16.I shall deal with the first and the second ground in one go.

17.It is true that the wife was given the hearing date of 11 July 2024 on which she had no control. With respect, the wife’s argument is taking the branch for the root. As I said at [41] of the Judgment,

41. Most importantly, it strikes me that she expressly requested the husband’s summonses to be adjourned to July 2024 when she knew full well that the husband would be away from Hong Kong. The reason is simple: the children’s flights to the UK were paid by her. I therefore agree with the husband that it was a deliberate attempt on the part of the wife to delay the proceedings. When the wife made her request by way of her unilateral letter to Master Ho (a copy of it was not sent to the husband), it was incumbent upon her to give a full and frank disclosure of all the materials needed for the court to consider but she deliberately failed to do so. I cannot help thinking this was a dishonest litigation conduct on the part of the wife; at the very least, it was a devious tactics for gaining unfair advantages over the husband.

18.Therefore, the crucial question is: why would she have sought for the vacation of the Husband’s Hearing Date when she knew well that the husband would be away with the children on a trip to the UK on 11 July 2024? It is significant to note that despite my clear observation set out above, nowhere in any of the wife’s affirmations, submissions or letters submitted to court subsequent to the Judgment have given any explanation on this. In the circumstance, the only reasonable inference that can be drawn (which I did) is she did so for the purpose of delaying the proceedings. If the wife had made the disclosure and if under this circumstance the Master still had acceded to her application (which I doubt very much if this would have been the case), I agree this would not be the wife’s responsibility, but, factually speaking, it was not the case.

19.I now turn to the third ground.

20.It is incorrect to say I absolved the responsibility of the husband. I acknowledge the husband could have taken out his own application, say, by way of a summons in good time. This, however, should be assessed in light of the reason why the Husband’s Hearing Date was vacated. The fallacy of the wife’s argument is that there was virtually no need for the husband to take the trouble of making his own application in the first place if the Husband’s Hearing Date had not been vacated at the instigation of the wife.

21.As for the assertion that I absolved the responsibility of the court’s personnel, I only need to say that I clearly pointed out the errors of the Masters (for examples, at [32] to [34] and [35] to [38]) and that the husband’s application letter should have been dealt with expeditiously at [43]. Again, all these could have been avoided if the Husband’s Hearing Date had not been vacated.

Conclusion

22.To conclude, there is no reason justifying the variation of the Costs Order Nisi. The wife’s application is dismissed.

Costs

23.The husband has not participated in the application in any real sense. No submission, whether oral or written, has been made. I consider the proper costs order is no order as to costs; and I so order.

The Petitioner, in person

The Respondent, in person