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Margarate Alice Macinnes v. John Ronald Macinnes and Another

Read the full judgment text of FCMC 892/1976 on BabelCite. This Family Court judgment before Mr. Registrar Cameron.

Divorce proceedings – Ancillary relief – Security for costs – Leave to apply – Costs of applications – District Court – Petitioner sought security for costs against 1st Respondent due to complexity and value of assets – 1st Respondent did not defend divorce but contested costs – Registrar initially dismissed summonses and ordered Petitioner's solicitors to show cause – Registrar reconsidered and distinguished two applications – Leave to apply for security at earlier stage dismissed with costs to Respondent – Security application dismissed with no order as to costs – Confusion in applications led to variation of costs orders

Legal issues: Leave to apply for security of costs at an earlier stage · Security for costs against 1st Respondent · Costs of the applications

Outcome: Applications for security of costs dismissed; Costs orders varied.

Case No.FCMC 892/1976
Court
Family Court
Date—
JudgeMr. Registrar Cameron
Case Document
100%Judiciary

FCMC000892/1976

  1976, No. 892.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISD ICTION

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BETWEEN    
  MARGARATE ALICE MACINNES Petitioner
  and  
  JOHN RONALD MACINNES 1st Respondent
  HYOU NAM NORMAN (otherwise known as HYOU NAM YUM) 2nd Respondent

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Coram: Mr. Registrar Cameron in chambers

Date of Judgment: 26 January, 1977

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JUDGMENT

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  Applications under Rule 37 of the Matrimonial Causes Rules and Order 23 of the Rules of the Supreme Court 1967  
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1. On 5th November 1976 a Petition for Divorce was filed in Victoria District Court on behalf of the Respondent by her Solicitors Messrs. Hampton Winter & Glynn together with the relevant papers. Notices of Proceedings were filed on 11th November 1976. A notice of intention to proceed with application for ancillary relief made in Petition was filed on 20th November 1976. Acknowledgments of Service were filed on 22nd November 1976. The 1st Respondent in his acknowledgment stated that he did not intend to defend the case and in addition stated that he did not wish to be heard on the claim in the Petition for costs. He did however wish to be heard on the following items-

  1) custody of the children - there being 2 children of the marriage.
  2) periodical payments
  3) maintenance pending suit
  4) secured periodical payments
  5) a lump sum
  6) a settlement or transfer of property
  7) variation of settlement.

2. The 1st Respondent also stated that he wished to make application on his own account for:-

  1) access to the children and
  2) custody of the children.

3. On 3rd December 1976 Messrs. Hampton Winter & Glynn on behalf of the Petitioner filed a Summons for Security of Costs under Order 23 of the Rules of the Supreme Court 1967 and Rule 37 of the Matrimonial Causes Rules Cap. 179. In this summons the Petitioner made application that the 1st Respondent give security for the Petitioner's costs in this action to the satisfaction of the Court on the grounds that these proceedings involve large amounts of money and concern matters of such importance and complexity that the legal costs are expected to be substantial. It would appear that the Petitioner's Solicitors realised shortly after filing this Summons that they should first have sought leave to apply and on 6th December 1976 a further summons under Rule 37 of Matrimonial Causes Rules Cap. 179 was filed in which the Petitioner made application for leave to apply for security for her costs at an earlier stage of the cause. Both Summonses called on Wednesday, 8th December and both were adjourned for argument.

4. On 12th January, 1977 both Summonses came before me for hearing. Mr. Rodway instructed by Messrs. Hampton Winter & Glynn appeared for the Petitioner. Miss Bibi Chu of Messrs. Helen A. Lo & Co. appeared for the Respondents.

5. In support of the 2nd Summons filed on 6th December applying for leave to apply for security of costs at an earlier stage of the cause an affidavit by Valerie Ann Penlington, Legal Assistant, employed by Messrs. Hampton Winter & Glynn was filed. In this affidavit Mrs. Penlington stated inter alia

  1) that she had been advised by the Petitioner that the Respondent had expressed his willingness to pay her legal costs and that on 2nd December, 1975 an amount of $500 was paid;
  2) that in response to a written request to the Respondent made on 25th March, 1976 for inter alia a sum by way of deposit for costs she had received a letter from his solicitors of 2nd April, 1976 stating he was not prepared to pay any further costs for the Petitioner;
  3) subsequently requests for a contribution towards the Petitioner's costs were made on 13th August, 24th August, 31st August and 19th November, all of which were refused save that on 5th November he paid a sum of $1,200;
  4) that she believed that 2 solicitor and olient bills of costs numbered and dated LB/552 of 9th June 1976 and LB/609 of 24th September 1976 for the sums of $3,445.00 and $935.00 respectively were handed by the Petitioner to the Respondent;
  5) the Respondent had by open letter dated 14th September, 1976 disclosed his income to be in excess of US$45,000 per annum and his capital assets to be worth US$249,000, most of which assets were situated out with the Colony;
  6) that the income and assets of the Respondent constitute the matrimonial property of the parties to a portion of which the Petitioner will be entitled whether by agreement or by order of the Court upon the dissolution of the marriage;
  7) that she believed that in view of the large amounts of money involved and the importance and complexity of the proceedings the legal costs would be substantial.

6. The letter and bills referred to in the affidavit were not exhibited.

7. On 24th December, 1976 the 1st Respondent filed an Affidavit of Means together with exhibits referred to in his affidavit. In this the 1st Respondent sets out very fully what he alleges is his financial position.

8. On 11th January, 1977 the Petitioner filed an affidavit. In this affidavit the Petitioner states inter alia:-

  1) that she has no other income other than the sum of US$600 per month paid to her by the 1st Respondent;
  2) that she has only a Savings Account with the F.C.N.B. (no balance given) and no other account in any other bank;
  3) that she owned jewellery to value of $142,680 and clothing to value of $8,000. That she had furniture brought from storage in Canada but was unable to state its value;
  4) that her expenditure per month is as follows:-
  Fruit, vegetables and fresh fish approx.HK$250  
  Wines and other drinks $40  
  Recreation including tennis lessons $520  
  Cosmetics $150  
  Masseuse $600  
  Hairdressing and facials $800  
  Entertainment $900  
  These figures she stated were estimates as her expenditure varies from month to month. On the occasion her monthly expenditure exceeds her income she is required to request additional funds from 1st Respondent. All other items including food, medical expenses, amah's wages are paid for by the 1st Respondent or his company.

9. The Petitioner exhibited to this affidavit the following:-

  A bill of costs dated 7th January, 1977 from her legal advisers (LB708 showing total costs to January 1977 of $8,336 having allowed for the sum of $1,700 already paid by 1st Respondent).  

10. The Petitioner stated that she had been advised by her Solicitors and that she believed that in view of the nature and complexity of the matters relating to ancillary relief the final bill of costs is likely to be substantial. She went on to say that prior to the commencement of proceedings the 1st Respondent promised to her that he would be responsible for all her legal expenses but it was only after constant requests that he had paid the sum of $500 on 2nd December, 1975 and $1,200 on 5th November, 1976. She further stated that the 1st Respondent through his solicitors (3 letters exhibited) had on several occasions advised her solicitors that he would not pay any of her legal costs unless same is included as part of a financial arrangement to be agreed before the commencement of proceedings.

11. Mr. Rodway for the Petitioner referred to the affidavits filed and stated inter alia that as the Petitioner did not have the capital assets to proceed with the litigation and as she did not come within the scope of legal aid this was an appropriate case for security for costs. He suggested that a sum of $30,000 was reasonable for what was going to be required.

12. Miss Chu in reply referred to the Petitioner's affidavit in which she had stated that she owned jewellery to the value of $142,680. Miss Chu also pointed out that the sum of $3,000 which the Petitioner received from the 1st Respondent each month was "pocket money", such items of expenditure as rent, food, medical expenses and amah's wages being paid by the 1st Respondent. In addition the 1st Respondent had settled other expenses incurred by the Petitioner amounting to approximately $100,000. Miss Chu went on to say that although the divorce action was not being defended the Petitioner's costs already exceeded $9,000 even though the case had not yet been set down. The 1st Respondent had been advised not to pay the Petitioner's bills on a Solicitor and Own Client basis. He would however pay Party and Party costs as he had already stated he did not wish to be heard on this claim in the Petition for Costs. Miss Chu submitted that the 1st Respondent has been quite generous and having regard to the means of both parties and all the circumstances of the case an order that the 1st Respondent give security for the Petitioner's costs was not appropriate.

13. Mr. Rodway in answer pointed out that the majority of the 1st Respondent's assets were abroad. If he departed the Colony the likelihood of the Petitioner doing anything about it would be very remote. He also submitted that where there are considerable assets it is often difficult to sort out the financial position.

14. I dismissed both summonses and ordered that the question of costs be adjourned to 26th January to allow Messrs. Hampton Winter & Glynn to appear to show cause why they should not bear the costs of both parties. On the same day, namely, 12th January, 1977 I sent a letter to Messrs. Hampton Winter & Glynn giving reasons for my decision on that date (copy on file).

15. On 26th January, 1977 Mr. Glynn of Messrs. Hampton Winter & Glynn appeared before me. He argued most ably that I should not order his firm to bear the costs of both parties under the applications. Whilst considering whether or not to accept his arguments a matter came to my attention which had been overlooked, namely, that there were 2 distinct applications, the first being for leave to apply for security of costs at an earlier stage of the cause and the second being an application for the part of the Petitioner that the 1st Respondent give security for the Petitioner's costs. Confusion had arisen because these applications had been made in the wrong order and the confusion was added to by the fact that both Mr. Rodway and Miss Chu addressed me on the application that the 1st Respondent give security for the Petitioner's costs and did not mention the application for leave to apply at an earlier stage of the cause. The two applications therefore were virtually treated as one. When I made my order on 12th January my mind was mainly on the application that the 1st Respondent give security for the Petitioner's costs. On reflection I should have directed Mr. Rodway and Miss Chu to address me on the application for leave to apply for security of costs at an earlier stage of the cause and given a decision on that application before dealing with the 2nd application. Had I done this I would have dismissed the application for leave to apply for security of costs at an earlier stage of the cause as on the information before me it was not a proper case for granting leave and I would have ordered the Petitioner to pay the 1st Respondent's costs. I would then have dismissed the 2nd application with no order as to costs in view of the fact that this application was before me on the same day and it was unlikely that the 1st Respondent would have been put to any extra cost in respect of it. Had I dealt with these applications as I should have done then on dismissing the application for leave to apply for security of costs at an earlier stage of the cause I do not consider I would have been justified in ordering the Petitioner's Solicitors to bear the costs of the parties.

16. Accordingly on 26th January I made the following orders as regards costs:-

  1) On the application for leave to apply for security of costs at an earlier stage of the cause which I had dismissed on 12th January "Costs of this application to the Respondent.  
  2) On the application for security for Petitioner's costs "no order as to costs".  

Date the ...(illegible) day of March, 1977.

  (P.A.G. Cameron)
  Assistant Registrar

Representation:

Messrs. Hampton Winter & Glynn for Petitioner.

Messrs. Helen A. Lo & Co. for 1st and 2nd Respondent.