Cwk v Ychs And Another

CourtFamily Court (Hong Kong)
Judgment Date18 Apr 2018
Neutral Citation[2018] HKFC 52
Judgement NumberFCMC6082/2014
SubjectMatrimonial Causes
FCMC6082B/2014 CWK v. YCHS AND ANOTHER

FCMC 6082 /2014

[2018] HKFC 52

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6082 OF 2014

----------------------------

BETWEEN
CWK Petitioner
and
YCHS 1st Respondent
CKY 2nd Respondent

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Coram: His Honour Judge G. Own in Chambers (Not Open to Public)
Dates of Hearing: 15 November and 29 December 2017
Date of Decision: 18 April 2018

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D E C I S I O N
(Amendment/Variation of Costs Order Nisi)

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Introduction

1. This is an application by the Petitioner wife (“W”) seeking amendment/variation of 3 costs order granted by this Court on 11 November 2015 (“1st Order”), 10 December 2015 (“2nd Order”) and 3 June 2016 (“3rd Order”) all in favour of W payable by the 1st Respondent husband (“H”). W’s Summons was dated 13 April 2017.

2. The 1st Order was in relation to W’s application for specific discovery. The 2nd Order was in relation to W’s application for maintenance pending suit. The 3rd Order was in relation to H’s application for leave to appeal the maintenance pending suit decision.

3. The amendment/variation sought by W in respect of all the 3 costs orders was that those costs be taxed if not agreed and to be paid forthwith (my emphasis).

4. At the expense of repetition but for completeness sake, the terms of the 3 costs orders as perfected and sealed are now recited as follows :-

“1st Order - The 1st Respondent do pay the Petitioner’s costs of the Summons, including all costs reserved, to be taxed if not agreed; and

There be Certificate for Senior Counsel”

“2nd Order - The 1st Respondent do pay all costs of the Petitioner’s Summons dated 28 April 2015 including all costs reserved, to be taxed if not agreed; and There be Certificate for Senior Counsel”

“3rd Order – The 1st Respondent do pay the Petitioner’s costs of 1st Respondent’s Summons to be taxed if not agreed;

and

There be Certificate for Senior Counsel. This is a costs order nisi which will be made absolute if no application to vary the same is made within 14 days.”

5. For reasons unknown, though not an issue in the present application, the perfected and sealed copies of the 1st and 2nd Orders did not contain the provision that the costs ordered therein were ‘nisi’ which would become absolute if no application to vary it was made within 14 days. As seen, such ‘nisi’ provision was contained only in the perfected sealed copy of the 3rd Order. Nonetheless, in each of the respective written reasons for decisions that were handed down, this Court had expressly stated that the costs orders were ‘nisi’ amenable to variation upon application being made within 14 days after it was handed down before they would become absolute (see O.42 rule 5B (6) of the Hong Kong Civil Procedure 2016).

6. It is worth noting that W’s Summons dated 13 April 2017 was initially intituled to be issued under the inherent jurisdiction of the Court. By a letter dated 6 November 2017 (which is 6 ½ months after the Summons was issued) from W’s lawyers to the Court and copied to H’s lawyers, leave was sought to amend the Summons as per the draft attached to the letter. The amendments sought was, in addition to inherent jurisdiction, to also include O.20 r.11 & O.1B r.1(2) of the Rules of High Court (“RHC”), as the basis of the application. The contents of the Summons were amended to add the words “amended or” varied the 3 costs orders and adding the words “by specifying” those costs to be taxed if not agreed and be paid forthwith to W. Apart from this letter, there was no formal application taken out by way of Summons to seek leave for such amendments to the Summons dated 13 April 2017 despite the fact that there was still enough time to do so before the substantive hearing on 15 November 2017.

7. At the substantive hearing on 15 November 2017, W’s Counsel Mr. Lau Ka Kin orally applied for the intended amendments to be accepted there and then which H’s Counsel Mr. Eugene Yim urged this Court to disregard for the fact that no proper summons for amendment had been taken out. Upon hearing submissions and with a view to save costs, this Court granted leave for the intended amendments, directed that time for service of the Amended Summons be dispensed with. Costs of the amendments be in the cause. The hearing proceeded there and then as Counsel Mr. Yim was well prepared for the hearing on the basis of the intended amendments would be allowed.

Petitioner’s (Wife’s) Grounds of Application

8. W’s Counsel in his written submissions sets out 3 limbs of argument as follows :

(a) Since this Court did not order “costs in any event”, on a proper construction, the Court had decided that W does not have to wait until conclusion of these proceedings to recover her costs. An amendment by specifying “forthwith” would put the matter beyond doubt;

(b) Alternatively, if this Court had not considered the timing of taxation and payment of the costs, this Court may now exercise its powers under O.20 r.11 to amend the costs orders;

(c) Alternatively, even if this Court had made a case management decision for the costs to be taxed after conclusion of these proceedings, this Court may exercise its case management power under O.1B r.1 (2) to amend the costs orders.

9. W’s Counsel in his submissions then cited a number of authorities as follows :-

- Wingames Investments Limited & Ors v. Mascot Land Limited & Ors (HCA No.907/2011);

- Xcelom Ltd v. BGI-Hongkong Co. Ltd (No.2) [2017] 1 HKLRD 436;

- Midland Business Management Ltd v. Lo Man Kui (No.2) [2011] 2 HKLRD 667;

- Wing Fai Construction Co. Ltd v. Yip Kwong Robert (No.2) (2012) 15 HKCFAR 454;

- Re Jessop & Baird (Hong Kong) Limited (HCCW 352/2016);

- Gao Haiyan & Anor v. Keeneye Holdings Ltd & Ors [2014] 1 HKC 94;

- Big Boss Investment Ltd v. So Lai Kei [2010] 1 HKLRD 793;

- Man Ping Nam v. Man Hong Hang (No.2) (2007) 10 HKCFAR 140;

- Meier v. Meier [1948] p.89;

- Thynne v. Thynne [1955] p.272;

- Mercer Alloys Corp & Anor v. Rolls Royce Ltd [1971] 1 WLR 1520;

- Winston Camera & Radio Co Ltd v. Combi (Singapore) Pte Ltd [1988] HKC 156;

- Asia-Pac Infrastructure Development Ltd v. Ing Yim Leung Alexander [2011] 1 HKLRD 587.

10. In his submissions in reply to H’s Counsel, the following additional authorities were then produced by W’s Counsel :-

- Do Ye Tong Doreen & Wai Hei Wan Wesley (No.2), CACV No.124/2010;

- Sun Jiangrong v. Sun Shaohua & Anor, HCMP No.1526/2010;

- Re Good Idea International Investment Ltd, CAMP No.2598/2011;

- In re L and another (Children) (Preliminary Finding: Power to Reverse) [2013] 1 WLR 634.

Respondent’s (Husband’s) contentions

11. H’s Counsel first contention was that W’s Counsel’s skeleton submissions before this Court was presented as if leave for the intended amendments had already been granted by this Court. This is wrong and disrespectful. Secondly, W’s Summons is entirely misconceived and incapable of being rectified.

12. H’s Counsel Mr. Yim then submitted that the Court’s attention should be drawn to the fact that at no time had W ever commenced taxation of the 3 costs orders or attempted to do so, not to say have taken any enforcement proceedings. Such inactivity contradicts W’s Counsel’s first limb of argument that the proper construction of the costs orders was that W does not have to wait until conclusion of the proceedings to recover the costs awarded. If so, why W had not commenced taxation ?

13. Mr. Yim submitted that the post-CJR position in relation to taxation and payment of costs, citing Big Boss (supra), was that in the absence of the word “forthwith”, any costs order is not payable or taxable until after the conclusion of the whole action. Thus, the 3 costs orders should be taxed and be payable only at the conclusion of the action. There cannot be any slip or clerical error of which the Court should be asked to rectify. The Court’s intention under the 3 costs orders is clear and unambiguous.

14. Mr. Yim also referred to O.62 r 4(1) and r 9D of the RHC. In Hong Kong, O.62 r 9D was introduced after the Civil Justice Reform (“CJR”) where the wordings are substantially the same as the English rules under O.62 rr. 8(1) and 8(2). The English rules had reversed the position in the case of Allied Collection Agencies v. Wood [1981] 3 All ER 176 and such case had been considered by the Hong Kong courts both in the Wingames and Xcelom (supra) cases.

15. Cases and authorities relied upon by Mr. Yim include :-

- RTX Products Hong Kong Limited v. Li Yiu Fai, HCA No.1777/2009;

- Dyson Technology Limited v. German Pool Group Company Limited, HCA No.838/2011;

- Bristol-Meyers Squibb Co v. Baker Norton Pharmaceuticals Inc (No.2) [2001] EWCA Civ 414.

The Chronology

16. This Court’s written decision on W’s specific discovery summons was handed down on 18 November 2015. This 1st Order was sealed and perfected on 29 December 2015.

17. This Court’s written decision on W’s maintenance pending suit was handed down on 10 December 2015. This 2nd Order was also sealed and perfected on 29 December 2015.

18. This Court’s written decision on H’s leave to appeal the maintenance pending suit judgment was handed down on 3 June 2016. This 3rd Order was sealed and perfected on 29 June 2016.

19. It is common ground that W only took out her Summons dated 13 April 2017 long after the respective costs order nisi became absolute and some 16 months after the 1st and 2 Order was sealed and perfected; and around 10 months after the 3rd Order was sealed and perfected.

20. W in her supporting Affirmation (10th), insofar as the reasons for taking out the present application is concerned, deposed as follows :-

“4. I seek this honourable court for the...

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