Plto v. Klk and Another

CACV 48/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 48 OF 2012

(On Appeal from HCMC No. 2 of 2010)

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BETWEEN

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Hon Cheung JA (giving judgment of the Court) :

Costs below between husband and wife

1.Deputy Judge Carlson ordered the husband to pay the wife the costs of the ancillary relief application.

2.There is no appeal against that decision.  There is no need for this Court to make any order on the costs below.  The Court is told that the costs had been settled and paid on 20 August 2012.

Costs of the appeal between husband and wife

3.The wife asked for the whole of the costs of the appeal, while the husband asked that there should be no order as to costs.

4.The wife was successful in her appeal although not wholly.  She was unsuccessful in treating the whole of the trust fund as the resource of the husband.

5.In our view the wife is entitled to two thirds of her costs of the appeal.

Trustee’s costs

1)  Costs below

6.The Judge ordered the Trustee’s costs below (including the wife’s unsuccessful application dated 27 February 2012 to vary the Trustee’s costs nisi) to be borne by the husband and wife equally on an indemnity basis.

7.The wife submitted that the costs of the Trustee should come out from the Trust.

8.Before the Judge affirmed his order nisi on the Trustee’s costs, the husband had offered to pay for the Trustee’s costs himself.   This was repeated on the first day of the appeal.  The husband in fact had paid the Trustee’s costs (other than the costs of the application dated 27 February 2012) in full on 13 March 2013.

9.We see no reason to vary the Trustee’s costs ordered by the Judge.  However in view of the payment by the husband, the only costs outstanding to be paid by the parties to the Trustee will be the costs of 27 February 2012.

2)  Costs of the appeal

10.The wife asked for the Trustee’s costs on appeal to be paid out of the Trust.

11.The husband asked the wife to pay for the Trustee’s costs.

12.The Trustee asked for the costs of the appeal be met equally by the husband and wife on an indemnity basis.

13.The Trustee was present in the appeal solely on the issue of the treatment of the trust assets.  The wife was not successful on this issue.

14.We are of the view that the wife should be solely responsible for the Trustee’s costs of the appeal on an indemnity basis.

Ms Anita Yip and Mr Eric Leung, instructed by Foo & Li, for the petitioner

Mr Andrew Lynn and Mr Patrick Siu, instructed by C.Y. Lam & Co., for the 1^st respondent

Mr Mairead Rattigan, instructed by Withers, for the 2^nd respondent