Tpl v. Wyy Formerly Known As Wyy

HCMP 316/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 316 OF 2013

(ON AN INTENDED APPEAL FROM FCMC NO 15332 OF 2011)

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BETWEEN

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D E C I S I O N

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1.This is an application for extension of time to file the Notice of Appeal in the intended appeal by the respondent against the costs order made by Deputy District Court Judge S Lo on 3 October 2012 in FCMC 15332 of 2011.

2.The delay in question is from May 2013 to January 2014.  It is not in dispute that this is a serious delay.  The questions that I have to decide are: (i) Whether there are good reasons for the delay, (ii) Whether there is prejudice occasioned to the petitioner that cannot be properly redressed, and (iii) how should the discretion of the court be exercised in order to do justice to the parties in the circumstances of the case.

3.The reason for the delay, as appeared from the evidence filed, is as a result of a settlement agreement reached by the parties at the FDR hearing on 25 April 2013.  The parties’ common intention at the time was to bring all their disputes to an end.  It now transpires, notwithstanding their common intention, the parties in fact differed as to the terms that they were prepared to agree, or they thought they had agreed upon, in order to bring the dispute to an end.

4.The disputed term relates to the costs regarding the custody application incurred in FCMC 15519/2010 (“the 1^st proceedings”)[1].  Having regard to the evidence filed by the respondent, especially in light of the solicitors’ correspondence, I cannot say that the reason given by the respondent for not serving and filing the notice of appeal after leave to appeal was given is untruthful or unreasonable.

5.Mr Chow for the petitioner raised an argument on estoppel in his submission.  It was said that the respondent should be estopped from pursuing the appeal by reason of the agreement he reached with the petitioner at the FDR hearing.  I do not accept that this is properly a case where the respondent is estopped as a matter of law from pursuing the appeal of the costs order.  According to the respondent, although he had agreed to withdraw the appeal against the order of 3 October 2012, he was acting under the belief that the parties had agreed to no order being made as to the costs in the 1^st proceedings, including the costs relating to custody.  

6.As to whether the understanding of the respondent (and also that of his legal representative) of the effect of the settlement agreement is correct, it is not a matter to be resolved here.  Deputy District Court Judge A N Tse had on 3 January 2014 made an order in the 1^st proceedings that the costs of the 1^st proceedings relating to custody should be paid by the respondent, and the respondent is currently seeking to appeal against the order.  The decision does not affect the conclusion I reached above, namely, the respondent’s reason for the delay is not untruthful or unreasonable. 

7.As to the question of prejudice, any form of delay will result in prejudice to the other party in the case.  What the court has to consider is whether there is any prejudice over and above the usual prejudice caused by delay, and whether the prejudice is incapable of redress.  I am not satisfied that this is such a case.  Mr Chow submitted that the petitioner is prejudiced by the delay in taxing and recovering her costs against the respondent.  But it is relevant to note that the parties have been litigating over the proper interpretation of the agreement reached at the FDR hearing, and the respondent’s application for leave to appeal against the order of 3 January 2014 is pending.

8.On the other hand, the issue raised in the intended appeal against the costs order of 3 October 2012 is of some importance.  In this court’s judgment given on 8 May 2013, we have indicated the intended appeal has a reasonable prospect of success.  It is the court usually will not order costs against one party in contested custody proceedings, and the trial judge had given reasons for departing from the usual course.  We consider the respondent’s intended appeal raises questions of principle that ought to be heard and considered by the Court of Appeal.

9.In the premises, and having regard to the history of the litigations between the parties, I am of the view that it is just that the court’s discretion be exercised in favour of granting an extension of time. 

10.Accordingly, I make an order in terms of paragraph 1 of the amended summons, namely, the respondent shall have leave to serve and file the Notice of Appeal within the next seven days.

11.The costs of the application for extension of time, save and except the costs of the amendment of the summons, shall be costs in the cause of the appeal.  There is no order as to the costs of the amendment of the summons.

Mr Enzo W H Chow, instructed by B Mak & Co, assigned by the Director of Legal Aid, for the petitioner

Mr Neal Clough, instructed by Tang, Lai & Leung, for the respondent

[1]    In FCMC 15519/2010, the petitioner petitioned for divorce on the basis of the respondent’s unreasonable behavior. Subsequently the parties agreed to a divorce on the ground of one-year separation. By the order dated 6 September 2011, the petitioner was given leave to issue a new petition and it was ordered that all the papers in FCMC 15519/2010 shall be transferred and used in the new proceedings and that FCMC 15519/2010 shall stand dismissed upon the pronouncement of decree nisi in the new proceedings. The petitioner subsequently issued the petition in FCMC 15332/2011.