Wrj Also Known As Wr v Cwcp

CourtFamily Court (Hong Kong)
Judgment Date03 June 2016
Judgement NumberFCMC5599/2015
Subject MatterMatrimonial Causes
FCMC5599/2015 WRJ also known as WR v. CWCP

FCMC 5599 / 2015




NUMBER 5599 OF 2015


WRJ also known as WR Petitioner
CWCP Respondent


Coram : Before Deputy District Judge K K PANG in Chambers (Not Open to Public)
Date of Hearing : 16 May 2016
Date of Handing Down of this Ruling : 3 June 2016




1. This is the hearing of the parties’ arguments on costs of the respondent husband (hereinafter called “H”)’s summons dated 9 July 2015, made pursuant to section 17(1)(a) of the Matrimonial Proceedings and Properties Ordinance (hereinafter called “MPPO”), section 52B(3) of the District Court Ordinance (hereinafter called “DCO”) and inherent jurisdiction of the court, and the consent summons dated 6 January 2016. H asks for costs of both applications, and the petitioner wife (hereinafter called “W”) takes the open position that there should be no order as to costs, save for the costs only proceedings.

2. W, 33, is a housewife. H, 56, was a merchant and is now allegedly unemployed. The parties married in January 2008. There is one child of the family, a boy, born in July 2008, now aged 7.

3. W filed petition for divorce under FCMC 1738/2014 in February 2014. Next, H opened a DBS Joint Account (hereinafter called “the Joint Account”) with W and also made W an authorized signatory of H’s HSBC account (hereinafter called the HSBC Account”) on 6 March 2014. The parties then reconciled and the divorce proceedings under FCMC 1738/2014 were discontinued in March 2014. After that, W withdrew HK$476,543.82 and US$37,730 (hereinafter called the “Withdrawn Funds”) from the HSBC Account on 8 October 2014, unilaterally froze the Joint Account and left the matrimonial home in December 2014. Finally, she filed petition for divorce on unreasonable behaviour ground under these proceedings on 8 May 2015.

4. On 29 May 2015, H filed and served the Answer and Cross Petition, by which he prays, inter alia, that he may be granted the custody of the child of the family and such ancillary relief as the court deems just.

5. H filed a section 17 summons (hereinafter called the “First s.17 Summons”) for setting aside of W’s disposition of the Withdrawn Funds on 23 June 2015. His 1st Affirmation in support was filed on 24 June 2015. The First s.17 Summons was somehow withdrawn by way of a consent summons dated 9 July 2015. At the same time, he filed the summons dated 9 July 2015 for, inter alia, an order : - (1) that W be restrained from making any disposition, or transferring out of the jurisdiction or otherwise dealing with the Withdrawn Funds; and (2) that W do pay a sum representing the Withdrawn Funds into court. His 2nd Affirmation was filed on 22 July 2015. W’s and H’s Form E was filed on 10 August 2015 and 12 August 2015 respectively. W filed her Affidavit in opposition on 21 September 2015. H filed his Notice of An Application for Ancillary Relief on 20 November 2015.

6. Upon W’s undertakings that she shall not dissipate the matrimonial assets out of the jurisdiction (with the exception of maintenance and medical fees to her parents in Mainland China in the sum of not more that RMB50,000 per year), by consent on 7 January 2016 it is ordered that :- (1) H’s summons dated 9 July 2015 be withdrawn; (2) the Withdrawn Funds be added back to the matrimonial assets at the final conclusion of the ancillary relief proceedings; and (3) the costs of the summons dated 9 July 2015 and the consent summons dated 6 January 2016 be adjourned for argument.

7. The court has a wide discretion as to costs. For the present application, 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.

8. Both parties accept that the effect of Order 62 r.3(2A), is as explained in Melvin Waxman & Another v Li Fei Yu & Another [2013] 6 HKC 424 that the “rule” that costs normally follow the event is no longer the usual order in an interlocutory application, but remains an option.

9. In applications for interim injunctive relief, it was formerly the practice of the court to grant the successful party his costs “in the cause”, on the basis that the interim relief is often linked with the final adjudication of the matter : see White Book at 29/1/55 (p690 2016 HK Civil Procedure Vol 1)...

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