W v C

CourtFamily Court (Hong Kong)
Judgment Date28 November 2014
Judgement NumberFCMC2201/2014
Subject MatterMatrimonial Causes
FCMC2201A/2014 W v. C

FCMC 2201 / 2014




NUMBER 2201 OF 2014


W Petitioner
C Respondent


Coram: Deputy District Judge K K PANG in Chambers (Not Open to Public)
Date of Hearing : 13 November 2014
Date of Handling Down of this Ruling : 28 November 2014




1. This is hearing of a Summons taken out by the Husband (“H”), the respondent in the action, to vary the costs order nisi given in a judgment dated 11 August 2014 (the “Judgment”).

2. By a summons filed on 8 May 2014, the Wife (“W”), the petitioner in the action, sought a sum of HKD46,000 per month as maintenance pending suit (“MPS”) plus a sum of HKD35,000 per month as legal costs provision. The substantive hearing of the application took place on 25 July 2014. By the Judgment, it is ordered H shall pay W HKD15,000 per month as MPS and HKD35,000 per month as legal costs provision and on a nisi basis that H shall pay W’s costs of the application, including all reserved costs, with certificate for counsel (“the Costs Order Nisi”).

3. H now applies to vary the Costs Order Nisi. H says that the appropriate costs order should be that the costs of W’s application for MPS and legal costs provision (including the costs of the hearing dated 25 July 2014 and all costs reserved) shall be paid by W to H with certificate for counsel.

4. The court has a wide discretion as to costs. For the present case, the relevant provisions in the Rules of the High Court governing the exercise of discretion as to costs are Order 62 rules 3(2A) and 5, which contain amendments introduced as a result of the Civil Justice Reform. Both parties accept that the effect of Order 62 rule 3(2A), was as explained by To J in Melvin Waxman & Another v Li Fei Yu & Another, HCA No 1972 of 2012, 11 September 2013 (unrep) at para 11:-

“The amendment to rule 3(2) and the introduction of rule 3(2A) specifically applicable to costs in interlocutory proceedings makes it clear that the legislative intent was to distinguish between costs in interlocutory proceedings and costs in other proceedings. Under the new rule 3(2), the general rule of costs to follow the event is preserved for costs in proceedings other than interlocutory proceedings. But a different approach is provided under the new rule 3(2A) for costs in interlocutory proceedings. Under this new rule, the court may order costs to follow the event or make such other order as it sees fit. The court is no longer required to apply the general rule of costs following the event except in special circumstances, though that principle remains as one of the options. The court may make such other order as it sees fit. Rule 3(2A) gives the court even wider discretion than that under rule 3(2) in respect of costs in other proceedings.”

5. In other words, the “rule” that costs normally follow the event is no longer the usual order in an interlocutory application, but remains an option. When dealing with costs orders, under Order 62 rule 5(1)(e) the court may take into account the conduct of all the parties. Rule 5(2) provides that conduct for this purpose includes (a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, (b) the manner in which a party has pursued or defended his case or a particular allegation or issue; (c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and...

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