Case Document

100%Judiciary

FCMC 1399 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1399 OF 2006

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BETWEEN
	IISW (also known as IIW formerly known as IIS)	Petitioner
	and
	SDS-W	Respondent
and
	HW & G	Intervening Party

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of written submissions: 18 August 2014

Date of Ruling: 4 September 2014

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R U L I N G
(Costs)

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Introduction

1.This Ruling arises out of a request by the intervening party for further clarification in relation to my order on costs following a Ruling relating to the Priority of Orders dated the 23 July 2014. In that Ruling I made an order as follows:

22. Costs shall be to the wife to be taxed if not agreed on a party and party basis.

2.Having read each sides written submissions and without going into all of the detail, it seems that there is now some consensus between the parties – although it would be fair to say that this is only if I do not accept the intervening party’s primary submission that there should be no order as to costs.

3.At paragraph 13 and 14 of the intervening party’s written submission it is stated as follows:-

13. After considering the circumstances of the case H.H. Judge Melloy found that it would not be appropriate for the Intervening Party to enforce their debt in priority to the wife. However, the Judge did accept that the Intervening Party is a genuine creditor. The Intervening Party should not be penalized for pursuing a legitimate claim, particularly since the Property is virtually the Respondent’s only asset. It is therefore submitted that the Court in its discretion on costs awards pursuant to O.62 r.2(2A) RDC, should, given the circumstances of the case, make no order as to costs.

14. In the event that the Judge is minded to order costs against the Intervening Party, such costs order should only be limited to the costs in relation to the Petitioner’s Summons dated 27^th January 2014 (in proceedings DSSJ 3408/2013) and the Intervening Party’s Summons dated 3^rd March 2014.

4.The solicitor’s for the wife similarly said in conclusion that:-

THE COSTS ORDER

15. The costs of the Petitioner Wife’s applications for Charging Order Absolute on 6 February 2014 and the costs of her applications for Charging Order Nisi of 19 April 2011 and Absolute of 29 January 2014 be paid by the Respondent Husband.

16. The Costs of the Petitioner’s application on 24 January 2014 for sale of K Mansion [Paragraph 6(a) above] be paid by the Respondent Husband.

17. The costs of the application in Paragraphs 6(b), (c) and (e) above and the hearings on 4 February 2014, 9 April 2014 and 7 July 2014 be paid by the Intervening Party.

The law

5.Both parties referred me inter alia to O.62 on costs. To summarize it is accepted that the issue of costs lies in the discretion of the court and costs are normally expected to follow the event. This presumption is more easily displaced in family proceedings that in others. I can also take into account other factors including inter alia the conduct of the parties.

6.I should say at the outset that my order in relation to costs stands. The wife was largely successful in the matters before the court and given that it seems to me that she should have her costs. The only issue really is whether or not those costs should be borne by the intervening party or by the husband or whether or not any of the costs arising out of the hearing should perhaps more properly be reserved.

Discussion

7.The intervening party’s primary submission is that there should be no order as to costs. As already indicated I do not think that there is any merit in that submission. In the alternative the parties are in agreement that if I make any order for costs against the intervening party (as opposed to the husband) that it should be in relation to:-

a) The Petitioner’s summons dated the 27 January 2014 transferred from DCCJ 3408 of 2013 by order dated the 9 April 2014 from Deputy District Court Judge Timon Shum to inter alia discharge the intervening party’s charging order.

Given that the wife was successful in that application I agree that she should have her costs of that summons from the intervening party.

b) Likewise it is agreed that the wife should have her costs of the intervening party’s summons dated the 3 March 2014. I also accept that to be the case.

c) However it is not agreed that the wife should have her costs, if any, arising out of the intervening party’s charging order nisi dated the 4 November 2013 also transferred to this court by virtue of the order from Deputy Judge Shum on the 9 April 2014. I accept that the intervening party should also pay these costs.

For the avoidance of doubt the costs of these three applications shall include the hearings of the 4 February 2014, 9 April 2014 and the 7 July 2014.

8.The wife shall also have her costs of the application on the 24 January 2014 inter alia for the sale of the K Mansion property. These costs shall be paid by the Respondent husband.

9.In my Ruling of the 23 July 2014 I said as follows:-

Other points which are salient to the present application include the fact that the wife obtained a charging order nisi on K Mansions on the 19 April 2011. This was based on her mistaken interpretation of the original court order dated the 15 May 2007. On the 29 January 2014 this was subsequently made a charging order absolute. I accept that this was wrong and that this charging order should be set aside. On the 6 February 2014 the wife obtained a second charging order nisi against K Mansions in relation to the outstanding school fees from September 2009 – July 2014 in the sum of HK$1,607,330. It should be noted that this figure is different from that set out in my Ruling above of HK$1,330,490.

10.Given that I found that the wife was wrong in applying for and obtaining a charging order nisi against the property on the 19 April 2011 and subsequently a charging order absolute on the 29 January 2014 and that I also have some concerns with respect to the second charging order absolute dated the 6 February 2014, it is hard to see on what basis the wife now claims her costs of these applications against the husband. Consequently her application in that respect is denied. Given that the husband has not participated in this latest round of litigation I intend at this stage to make no further orders with respect to those applications. Costs will accordingly be reserved.

11.In so far as the costs of this application are concerned, given the fact that this was in effect an application to seek clarification, and the fact that at the end of the day there was a large measure of agreement between the parties, I will exercise my discretion and make no order as to costs.