D v. W and Others

CACV 124/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 124 OF 2010

(ON APPEAL FROM FCMC NO. 5857 OF 2006)

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BETWEEN

Before: Hon Rogers VP, Le Pichon and Cheung JJA in Court

Date of Hearing: 10 February 2011

Date of Judgment: 10 February 2011

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J U D G M E N T

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Hon Rogers VP:

1.This is an application following the judgment which was handed down by this court on 7 December 2010.

2.In my view, the matter is quite simple, although the argument has been dressed up that there were stances by one party or another as to whether the Matrimonial Property Proceedings Ordinance applied and as to how the jurisdiction of the court below came about.

3.The simple fact is that, as explained in the judgment of this court of 7 December, the judge below declined jurisdiction.  The appellant wife came to this court complaining that the judge did have jurisdiction and should have come to a decision.  That was not acceded to by the husband and the appeal was resisted.  Hence, it was heard and this court had to give a judgment.  In those circumstances, it seems to me, on a very plain and simple footing, the wife has succeeded in the appeal and should be entitled to her costs.

4.Two matters arise.  It has been drawn to our attention that there has been a decision of Registrar Queeny Au-Yeung, as she then was, in January of last year, in the case of Big Boss Investment Limited v So Lai Kei [2010] 1 HKLRD 793, in which it would appear that the learned Registrar took the view that the amendments to Order 62 rule 9D, introduced by the Civil Justice Reform, had altered the way in which costs would be dealt with in this court.

5.Whatever might happen in the court below, in my view the practice in the Court of Appeal in respect of interlocutory appeals has always been that, if those are dealt with separately from the main action and if an appeal is brought to this court, in normal circumstances, once the appeal is disposed of, that would normally be the end of that particular aspect of the matter.  The order for costs would follow and the parties would be entitled to tax their costs.

6.In my view, the new Order 62 rule 9D does not change that situation because it does not, in terms, deal with appeals and as far as I am concerned the same situation applies as it did before.  The appellant wishes to insert in the order the words ‘taxed forthwith’.  I see no objection to that.  But normally, if the words ‘taxed forthwith’ are used, that has a slightly pejorative connotation and would be avoided in order not to give offence. Nevertheless, on this occasion, I am prepared to allow that to be inserted.

7.The only other matter is the question of two counsel.  This court has already made it quite clear on many occasions that unless anything is said to the contrary, it is regarded that two counsel are appropriate for appeals in this court and the court order should contain a provision allowing costs of two counsel, unless a specific request is made that that be deleted.  In my view, the order for costs should follow what I have said.

Hon Le Pichon JA:

8.I agree.

Hon Cheung JA:

9.I agree.

Mr Anthony Chan, instructed by Messrs Clifford Chance, for the Petitioner and the 2nd to 5th Respondents/Appellants

Mr Robin Egerton, instructed by Messrs Hastings & Co., for the 1st Respondent/Respondent

6th Respondent/Respondent (in person) absent