C, KT v. G, T

FCMC 16278/2018

[2024] HKFC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 16278 OF 2018

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J U D G M E N T
( Leave to Appeal)
(Paper Disposal)

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1.  On 1 February 2024, The applicant (“A”), which is the Petitioner husband of this divorce submitted the following documents:

A.  Summons dated 1 February 2024 (“Summons”)

Which seeks to appeal an order dated on 5 June 2020 (“June 2020 Order”)

B.  Draft Grounds of Appeal

Which starts with A seeking to “Vary Cost Order Nisi” on numerous costs orders, based on “improper service and that the Respondent (“wife” / “W”) did not make a full and frank disclosure to court of all material matters when making an Ex parte application for substituted service. A quotes eight costs orders, after which he then says:

“As most of these Order Nisi are issued on an indemnity basis and the fact that the Respondent failed to deliver any summons whilst being in communication with the Petitioners legal representative or the Petitioner and has presented two Notice to Act in person with a different signature and failed to comply with 1b of the substitutes service order, I kindly ask the Court to vary the costs to the aforementioned Order Nisi to No order as to Costs.”

C.  A 6 page submission dated 31 January 2021

D.  An affirmation dated 1 February 2021

2.  A acts in person, there are a number of irregularities on his application.

3.  A calls this a variation of costs order nisi, but instead of following the O.42 r5B(6) RHC, he has chosen to follow to a large extent procedures to apply for leave to appeal.

4.  The draft grounds of appeal do not give much details on the basis upon which A is relying on as to how he is challenging the June 2020 Order which he seeks to appeal in the Summons.

5.  While citing all the Costs orders in his draft grounds of appeal, his complaint was that the Summons were not served on him. These Orders encompass, inter alia, issues of relocation, MPS, custody and ancillary relief. One would have thought if he did not receive these Summons, he might also be objecting to the decisions made, not just the Costs Orders.

6.  There is no application for extension of time for appeal.

7.  His affidavit, which is supposed to be limited only to the reasons for any delay in support of an extension of time, goes well beyond this scope. Technically I should not be taking into consideration other contents in the affidavit which is not to do with any reasons for delay, but to afford some fairness to A’s application, I shall reference these contents.

8.  His submission should be limited to 5 pages.

9.  A’s affidavit of service was filed on 7 February 2024, instead of 3 days in accordance with proper procedures.

10.  The memo from the Family Court on “New Arrangement for Application for Leave to Appeal in the Family Court” (the “New Arrangement procedures”) states in paragraph 6 therein that failure to comply with the procedures runs the risk of having an application struck out and dismissed on the ground of failure to prosecute the application with due diligence. As can be seen from above, A’s paperwork in his application digress from the proper procedures.

H’s Summons for submitting further affidavit

11.  On 29 May 2024, A applied to submit a further affidavit stating that he wishes to include detailed correspondences between the W’s and his legal representatives during the ex-parte application for substitute service.

12.  This was heard on 19 June 2024. W submitted that he must have been in possession of these correspondences since May 2020 and he failed to produce them with his application. His application was summarily dismissed.

H’s Notice to act in person (the “Notice”)

13.  Reference must first be made to this document dated 11 May 2020. Before this, A was represented by the law firm Withers. The document on the court file is apparently signed, and says A intends to act in person in place of Messrs Withers and that his address for service is Flat C, 8/F, Block 1, Axxxx Cxxxx, Hong Kong (“8C address”). There is also an icloud email address.

H’s case

14.  A says that he never received any summons or documents. That W is aware of his address at 23D, Block 1, Axxxx Cxxxx (“23D Address”), and that he is “no longer at the 8C address”. He says throughout the period spanning 2018-2013, he has conducted his legal affairs through his German legal counsel and that they have not received any summons in this case.

15.  A then says that the email address has been disabled in early 2020.

16.  In A’s submission, he says he “vehemently refutes any acknowledgement of having signed a Notice to Act in Person with 8C as the designated service address”.

17.  He also says that there were two Notices to Act in person presented by the W’s lawyers and the Court, both dated 11 May 2020 but have “different signatures and handwriting for the date and month. He says the copy presented by the W’s lawyers contains a digital copy of his signature, and he “contest the authenticity of the digital representation of his signature” affixed therein.

Opposition from the Wife

18.  The W’s legal representation cited the irregularities, and also the fact that A did not serve on her the New Arrangement procedures per paragraph 5 therein.

19.  On 1 March 2024, W applied for a time extension to file her affidavit in opposition and skeleton submission on the basis that W lives overseas and legal aid approval is required, I granted this on 9 April 2024 giving an extended deadline to 7 May 2024. W’s 18^th Affidavit and submission were filed ahead of the deadline on 29 April 2024.

20.  In brief, her contentions are as follows

a.  That the eight orders quoted by A are wrong.

b.  A’s application is 3 years 7 months out of time in respect of the June 2020 Order, and for the other orders between 2 - 4 years out of time. A has not asked for leave to appeal out of time.

c.  The reason put forward by A that he did not receive any Court orders or summons until October 2023 was unfounded. Service was proper based on the address he provides in the Notice.

d.  His allegation that the Notice dated 11 May 2020 was not signed by him was not supported by proper detailed allegation against Withers, the firm that represented him.

21.  W says that A has continuously failed to engage in these proceedings after the Notice was filed, up until the taxation hearing in late 2023.

22.  The following are the eight orders cited by A in his draft grounds of appeal, the far-right column is what W says should be the proper reference for the dates of the Order. Having checked the record, W’s dates are correct.

Order ref no.	Order dated	Costs order made	Proper reference according to W
1	22 June 2020 §4c	Costs on indemnity basis	Order dated 17 November 2020
2	4 August 2020 §7	Costs Order Nisi, to be paid forthwith and made absolute in 14 days	Order dated 23 July 2020
3	22 June 2020 §3	Costs Order nisi on indemnity basis to be made absolute in 28 days	Unclear which Order A is referring to
4	16 March 2021 §3	Costs Order nisi on indemnity basis to be made absolute in 28 days	Order dated 25 February 2021
5	20 May 2020 §2	Costs Order nisi that there be No Order as to Costs to be made absolute in 14 days	Order dated 16 March 2020
6	8 September 2021 §4	Costs on indemnity basis	Order dated 27 August 2021
7	16 September 2021 §3	Costs, party and party basis, to be paid forthwith	Order dated 6 September 2021
8	20 December 2021 §3	Cost Order Nisi on indemnity basis to be made absolute in 28 days	Amended Order dated 25 February 2021 refiled on 20 December 2021

23.  Regarding the Order dated 22 June 2020 (ref no 3), there was no such Order as quoted by A. I sought to clarify it on the day of the time extension hearing and directed the parties to inform the Court by joint correspondence to state which Order A was referencing. I was subsequently informed by W’s legal representation that A conceded that this Order was a mistake.

A's delay

24.  For principles regarding application for leave to appeal out of time, W quotes the case of Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 which was followed by Birkenhead Properties & Investments Ltd v Leung Yiu & Ors [1998] 1 HKLRD 257. The following factors need to be considered:

a.  Length of delay

b.  Reasons for delay

c.  Prospects of success

d.  Extent of prejudice that would be caused to the other party if leave is granted

25.  As for time of delay, I shall adopt the timetable in W’s skeleton submission as to the periods of time lapse in question.

	Date of the Order	Expiry date of the prescribed period	Number of days since expiry date
1	17 November 2020	1 December 2020 (14 days)	1,157
2	23 July 2020	6 August 2020 (14 days)	1,274
3	It is unclear what Order is being referred to by P	_	_
4	25 February 2021	11 March 2021 (14 days)	1,057
5	16 March 2020	30 March 2020 (14 days)	1,403
6	27 August 2021	24 September 2021 (28 days)	860
7	6 September 2021	20 September 2021 (14 days)	864
8	Amended on 20 December 2021	3 January 2022 (14 days)	754

26.  These delays have been excessive; and H’s reasons for delay in his affidavit are namely:

a.  He did not receive them until 10 October 2023

b.  Since that date the time he spent in Hong Kong has been less than 30 days

c.  That he is a full-time father to two young children and therefore he has no time and energy to review and research the court documents

d.  He contracted covid in November 2023

27.  W’s case is also that the Summons and Orders were served at the proper address provided by him in the Notice.

28.  W also says H took a long time to take out his application. The time lapse from the date A says he first received them in October 2023 to his application is more than 3 ½ months.

29.  In my view, the reasons A gave for his delay shows a clear delinquency on his part in pursuing his application. A has clearly caused much grievances in his failure to participate in these proceedings already; at the eve of this coming to the end, A decided to take out this application. To allow this would cause enormous injustice to W as no doubt she should rightly be expecting some finality of proceedings; to re-open all these costs arguments would mean further delay.

30.  As to prospect of success, W says that the issue of service address has been dealt with in the taxation proceedings and decided in W’s favour. A has no basis to argue that the service address was wrong. I shall deal with this below.

Service Address

31.  W relies on findings in the taxation proceedings of this matter that proper services have been made.

32.  At the taxation hearing in November 2023, A said that he did not receive the Notice of Commencement of Taxation. A filed an application for leave to file his List of Objection which resulted in a hearing on 1 February before Master N Mak, the following observations (extracted from W’s 18^th Affidavit), made by Master Mak are relevant:

a.  The he has examined the Notice to Act in person in Court and that it was physically signed, not signed digitally.

b.  That in a letter from Withers on 11 May 2020, it was stated that if A does not file the original Notice to act in person or bring the original back to Withers, then they will seek application from the Court to be removed. As this application did not take place, then Withers must have obtained the original from A.

c.  That A never gave a date on when he allegedly moved out of the 8C address.

d.  Order 65 r5(2) quoted by A does not apply and is irrelevant because he did provide for an address for service in his Notice to Act in person.

33.  A sought to appeal Master Mak’s decision which was heard by DDJ G Lam on 22 February 2024. A’s Appeal was dismissed and in his written decision on 23 February 2024, DDJ G Lam states that the issue of service has been dealt with by Master Mak.

34.  I accept and adopt these findings made by Master Mak, which was confirmed by DDJ G Lam.

35.  Therefore, despite the repeated assertions by A that W should know that 8D is no longer A’s current address, that is not the point. W has rightly relied on the service address provided by A in the Notice. W has also exhibited in her 18^th Affidavit four affidavits from two partners at W’s representing law firm which attested to the service of a number of documents including inter alia, the relevant Orders, Summons, Affidavits, Answers and Cross Petition, and hearing bundles to the 8C address since A started to act in person, none of these have been returned.

36.  The 8C address remains on court record until A filed a notice of change of address on 7 February 2024 to the 23D address.

Notice of Intention to Act in Person

37.  W argues that A did not in his Affidavit says he did not sign the Notice, just that he contests the authenticity of the digital representation of his signature. But then in his submission this becomes a denial that he signed the Notice with 8C as the designated service address.

38.  A never gave any more details as to what transpired around the Notices and when this document was filed. The W’s version of event is in her 17^th Affidavit filed on 29 December 2023. She says while there were two versions of the Notice, one that was faxed to her from Withers on 11^th May and one that was filed with the Court on 12^th, both bear A’s signature, which is the same signature A appends to his affidavits. Apparently, it was Withers who filed the Notice in Court, and W was served with the copy filed with the Court. W’s 18^th Affidavit quite rightly suggests that the consequence of A’s denial means that he is accusing Withers of forging his signature and presenting a false document to the Court, which is a very serious allegation. But A did not say this, and it appears that no action was taken by A against Withers.

39.  I do not accept H’s claim regarding the Notice.

The Order in the Summons for Leave to Appeal

40.  H appealed the June 2020 Order in his Summons, this is an Order for substituted service, which was W’s application for Service of the 12 May 2020 Order with penal notice to be made by prepaid post to the 8C address after unsuccessful attempts at personal service. The June 2020 Order was granted by DDJ D To giving permission to serve by prepaid post and whatsapp message.

41.  This was an ex parte application and A says there has been non-disclosure. He complains that there was no mention of the 23D address or communication between her legal team and the A’s German legal counsel; and that W has failed to apprise the court of material change in circumstances following the granting of the Order, specifically that W served documents to 23D and there was direct engagement with A.

42.  On this latter points raised by A, he has proffered no evidence to support his contention; therefore I do not accept his argument of any non-disclosure on W’s part.

43.  In any event, the execution of the June 2020 Order was done and dusted, and subsequent service of documents was not done pursuant to this Order.

The Applicable Legal Principles

44.  The appropriate test when seeking leave to appeal is set out at s.63A of the District Court Ordinance (Cap. 336), which states that either the appeal must have a reasonable prospect of success or that there is some other reason in the interest of justice why the appeal should be heard.

45.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. The case of SMSE v KL [2009] 4 HKLRD 125, elaborated as follows:

“…. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

Reasonable Prospect of Success

46.  I find that the A has taken out his application after substantial delay, none of which explanation was justified or acceptable. On this point alone, his application could be dismissed.

47.  His application could also be dismissed on his non-compliance with the New Arrangement procedures.

48.  I find A’s denial regarding the Notice to be unsupported. I therefore find that service to the 8C address is proper service, this address was rightly relied on by W.

49.  In consequence, I conclude that A’s application has no reasonable prospect of success on appeal; nor did he raise any ground of appeal involving any interests of justice which merits the intervention of the Court of Appeal. His application is therefore dismissed.

50.  I also find that A’s continuous pursuit of this application even after Master Mak’s finding on the service address followed by DDJ G Lam decision, to be an abuse of process. His main argument underpinning this application has been found against him by 23 February 2024 and yet he repeats the same argument here about not receiving documents in this application. Such litigation conduct must bear consequences.

Costs of this Application

51.  I see no reason why costs should not follow the event, I therefore award costs of and incidental to this leave to appeal application to the Respondent W on an indemnity basis. The Respondent’s own costs be taxed in accordance with Legal Aid Regulations. This to be a Costs Order Nisi to be made absolute from 14 days hereof.

The Petitioner: Acting in person

Messrs Howse Williams for the Respondent

FCMC 16278/2018

[2024] HKFC 35

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 16278 OF 2018

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DECISION

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1.  This is the Paying Party’s application for appeal against the decision of Master Newton Mak made on 1 February 2024. The relevant parts of the Order that touch upon appeal are as follows:-

“2. The Paying Party has leave to file and serve a List of Objections on Part 1 and Part 2 on Party and Party Costs on or before 6 March 2024 ON THE CONDITION that the Paying Party makes a payment into court in the sum of HK$80,700 at or before 4:00 pm on 21 February 2024 (“the Condition”).

3. If the Paying Party fails to comply with the Condition pursuant to paragraph 2 above or fails to file and serve a List of Objections on Part 1 and Part 2 on Party and Party Costs on or before 6 March 2024:-

(1) The Paying Party is debarred from filing and relying on any List of Objections at the taxation hearing; and

(2) The Receiving Party do write to the Court to seek a date to be fixed for the adjourned taxation hearing.”

2.  In fact, according to the Notice of Appeal dated 14 February 2024, the Paying Party only asks for “a reduced payment and a stay until the vary [sic] order hearing decision is made”.

3.  By the order of Deputy District Judge Grace Chow dated 19 February 2024, an interim stay of the Master’s Order was granted, pending the outcome of the re-fixed hearing scheduled before me at 2:30 pm today (22 February 2024).

4.  The Paying Party claims that this is an urgent application as the deadline for compliance with the Master’s Order for the payment into court was 4:00 pm yesterday, which has already expired.

BACKGROUND

5.  Divorce proceedings were commenced by the Paying Party on 24 December 2018 (see Judgment of [2020] HKFC 152). The action has now come to the stage of taxation proceedings on costs and was set down for a taxation hearing on 10 November 2023 before Master Athena Wong. The said hearing was attended by the Petitioner (the Paying Party) in person, the Respondent (the Receiving Party) represented by the law costs draftsman, and the Director of Legal Aid, being an interested party as the Receiving Party was legally aided in the proceedings.

6.  At the said hearing, the Paying Party claimed that he had not received, inter alia, the Notice of Commencement of Taxation (“NOCT”) and the Receiving Party’s Bill of Costs (“BOC”). He orally applied for leave to file his List of Objections and the application for such leave was adjourned to be heard by Master Newton Mak on 1 February 2024.

7.  In fact, the NOCT and BOC were filed and served by the Receiving Party back in early 2022 (on 10 February 2022) under O 62 r 21(2) of the Rules of the District Court. Pursuant to para 21(1) of Practice Direction 14.3, the Paying Party was required to file and serve a List of Objections within 28 days, but he failed to do so. The parties disputed whether the address provided by the Paying Party was correct and, as such, whether the NOCT and BOC were properly served.

8.  In any event, the dispute as to service of the NOCT and BOC had been dealt with by Master Newton Mak on 1 February 2024, and the learned Master granted leave to the Paying Party to file and serve the List of Objections, but on condition that the Paying Party needs to make a payment into court in the sum of HK$80,700.

9.  The only question before me today appears to be whether the amount of HK$80,700 (being the costs summarily assessed) ordered to be paid into court was a reasonable sum or should be reduced, as the Paying Party suggested.

10.  The Director of Legal Aid has no comment on the Paying Party’s application concerning the sum of HK$80,700 and its attendance was excused.

THE PARTIES’ SUBMISSIONS

11.  The Paying Party submitted his Skeleton Submissions at the eleventh hour before the hearing. In it, it appears that the Paying Party allegedly has an ongoing application to vary the costs orders nisi of all the previous costs orders made by the family court from 12 May 2020 onwards up to 20 December 2021, despite all those costs orders nisi had become absolute (“the Variation Application”). This court is not aware of such an application.

12.  The Paying Party says what he meant by “a stay until the vary order hearing decision is made” as stated in the Notice of Appeal was referring to the said application just mentioned, namely the Variation Application. He submits that the Master’s Order made against him for incurring extra costs for filing the List of Objections would be wrong if the Paying Party can succeed in the Variation Application in the family court. He therefore asks for a stay of the Master’s Order.

13.  The Paying Party also challenges the costs of the application for leave to file the List of Objections (including part of the costs of the hearing on 11 November 2023) summarily assessed by the Master at HK$80,700. He submits that the sum of HK$80,700 was “disproportionately high” and included “unreasonable” costs incurred. He also submits that the Master was wrong in taking into consideration any future costs to be incurred.

14.  Ms Lam, solicitor appearing on behalf of the Receiving Party, submits that the learned Master was right in considering that the amount of the payment into court should reasonably reflect the Receiving Party’s costs of dealing with the application and wasted costs. She disagrees that the learned Master has assessed the costs of the application by including any future costs.

15.  The Statement of Costs submitted by the Receiving Party comprises the work done by the solicitors in the sum of HK$$100,100 (including 2 hours of work of the law costs draftsman) and the wasted costs at HK$24,186.67.

16.  At the hearing on 1 February 2024, the Master summarily assessed the Receiving Party’s costs of the application at HK$80,000 and the Director of Legal Aid’s costs at HK$700 (See paras 5 & 6 of the Order), totaling HK$80,700.

LEGAL PRINCIPLES

17.  The Court will refuse to interfere with a taxation decision, unless it is shown to have involved a mistake of law or disregard of principle; or under a palpable misapprehension as to facts; or plainly in reliance on irrelevant matters; or to be such as to fall outside the generous ambit within which a reasonable disagreement was possible (Nam Chun Investment Co Ltd v Director of Lands (2007) 10 HKCFAR 523; Poon Shu Fan v Wong Tin Yan [2012] 5 HKLRD 512).

18.  As regards summary assessment, where costs are awarded on a party-and-party basis, only such costs as were “necessary or proper” for the attainment of justice or for enforcing or defending the rights of the receiving party are allowed, as they are allowed in an ordinary taxation: O 62 r 28(2), the Rules of the High Court. Pursuant to Practice Direction 14.3, the court will adopt a broad-brush approach to ensure the final figure assessed is not disproportionate and/or unreasonable having regard to the nature and circumstances of the application or matter and the underlying objectives stated in O 1A of the RHC, even if there is no challenge to individual items (Poon Shu Fan v Wong Tin Yan, supra).

19.  The appeal on costs is not to be dealt with by way of an actual rehearing of the matter while it is an appeal from a decision of a master (Wealth Growth (HK) Investment Ltd v Si Bun Bun Carmen Co Ltd[2021] HKDC 1363).

ANALYSIS

The stay application

20.  In addition to the 3 pages Skeleton Submissions submitted for today’s hearing, the Paying Party also lodged a bundle of 35 pages of documents, which included (at pages 4 to 16) a Skeleton Submissions of the Paying Party dated 31 January 2024, an undated Draft grounds of appeal, and an undated Affidavit of the Paying Party.

21.  The Paying Party clarifies to the court that these are all documents he lodged to the family court for the Variation Application. He said that, although the date shown on the Skeleton Submissions was 31 January 2024, ie one day prior to the hearing before Master Newton Mak on 1 February 2024, these documents have never been presented to the Master, nor were they filed in this general civil court of the District Court.

22.  Ms Lam confirms that the Receiving Party has received the set of documents filed by the Paying Party. However, she submits that no hearing date has been fixed for that application, and no direction has been given by the family court. She submits that the Variation Application is totally out of time and procedurally wrong. She further submits that the Variation Application is not relevant to the present appeal and was never discussed before the learned Master.

23.  In my decision, this is not the proper forum to hear the Paying Party’s application for a stay and I refuse to hear the application. My reasons are as follows. First, as it is not disputed between the parties that the issue of the Variation Application was never discussed before the Master, and there was never any stay application made before the Master, I see no reason why the granting of a stay can be a live issue for the present appeal.

24.  Secondly, in respect of the stay application, there was no summons taken out by the Paying Party, nor was there any affirmation filed by the Paying Party in support of the same.

25.  Thirdly, and more importantly, it was understood by the Receiving Party and the Director of Legal Aid that the “stay” requested by the Paying Party was only an interim stay pending the outcome of today’s appeal hearing, not a stay pending for the outcome of the Variation Application, which has just clarified by the Paying Party in court just now. The Director of Legal Aid requested that they needed not attend today’s hearing on the basis that this appeal hearing would only deal with the amount of the $80,700 summarily assessed, and their excuse from today’s hearing has been granted by this court. They have no notice of the Paying Party’s change of application for stay.

26.  In the premises, the Paying Party’s application for a stay of execution of the Master’s Order pending the outcome of the Variation Application is dismissed on procedural flaw.

The Summary Assessment on costs

27.  The Paying Party contends that the Statement of Costs submitted by the Receiving Party for summary assessment was lack of details. He refers to the handwritten statement at page 17 of his bundle. He said that such Statement of Costs only comprises two components without giving any details of work done:

(1)  P’s Application for leave to file his List of Objections

KL: 25 hours x $3,860 = $96,500

LCD: 2 hours x $1,800 = $3,600

Total: $100,100

(2)  Wasted Costs

KL: 5 hours 20 mins x $3,860 = $20,586.67

LCD: 2 hours x $1,800 = $3,600

Total: $24,186.67

28.  Ms Lam refers to a table which she compiled to explain the breakdown of costs for this HK$100,100 (see paragraph 16 of her Hearing Note filed for this hearing). The table includes further details of KL’s work done and LCD’s work done. She confirms to the court that the entire breakdown of costs, as shown in the table, was indeed mentioned and discussed in court before the learned Master, and the parties had made submissions in relation to the items set out therein before the Master.

29.  The Paying Party then submits that, as a layman, he could only suggest to the Master that the amount charged by the solicitors of the Receiving Party was excessive, as he did not have the knowledge to understand how the solicitors of the Receiving Party would entail the number of hours for the work done.

30.  In my view, it is important to note that the Paying Party agreed that he was given the opportunity to make submissions in relation to the Statement of Costs. Therefore, the learned Master must have considered the submissions of both parties before arriving at the figure of HK$80,000 (or HK$80,700 if the DLA costs are included).

31.  The Paying Party then alleges that the Master incorrectly took into account of the costs of some future hearings. Ms Lam disagrees that it was the case. Since there is no transcript of the hearing of the learned Master, this court is unable to see any evidence that the Master took future costs into account as suggested by the Paying Party. I reject the Paying Party’s submission.

32.  The Paying Party argues that the Master should have included a provision in his costs order that, in the event the Paying Party is successful in the Variation Application, the Receiving Party should reimburse the Paying Party for the costs, ie the payment into court, he is going to pay.

33.  I do not agree. In my view, the costs summarily assessed by the learned Master are independent of the alleged Variation Application. I do not see any direct correlation existing between the two. Even if the Paying Party were to succeed in the Variation Application, he would still have to pay for the costs order assessed by the learned Master, at HK$80,700, for his application for leave to file the List of Objections.

34.  Since the Paying Party is not able to show to the court which part of the summary assessment involved a mistake of law or disregard of principle, this court will not disturb the Master’s assessment.

35.  However, having considered the Paying Party’s situation in a round, I will grant an extension of time (until next Wednesday, ie 28 February 2024) for the Paying Party to make the payment into court.

CONCLUSION

36.  In the circumstances, the Paying Party’s appeal is dismissed with costs.

37.  I make a costs order nisi that the Paying Party shall pay to the Receiving Party the costs of this appeal forthwith, to be summarily assessed. The Receiving Party’s own costs shall be taxed in accordance with the Legal Aid Regulations.

38.  The Receiving Party has submitted a statement of costs to the court at the end of the appeal hearing. I direct that the Paying Party to file a statement of objections (if any) within 7 days. I shall assess the costs summarily on paper thereafter.

39.  Leave be granted to the Paying Party to make the payment into court in the sum of HK$80,700 at or before 4:00 pm on 28 February 2024 in compliance with paragraph 2 of the Order of Master Newton Mak dated 1 February 2024.

The Petitioner (Paying Party) appeared in person

Ms Karen Lam of Howse Williams, assigned by the Director of Legal Aid, for the Respondent (Receiving Party)

FCMC 16278 / 2018

[2020] HKFC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16278 OF 2018

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J U D G M E N T
(Maintenance Pending Suit/Interim Maintenance)

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Introduction

1.  This is an application by a Respondent mother for maintenance pending suit pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a little girl M, who was born on the XX July 2014, and is now nearly 6 years old, under section 5 of the same ordinance. The mother also told the court originally that she was seeking litigation funding, although this was not specifically pleaded in the summons. In any event she is not now pursuing this part of her application as she is currently legally aided (the legal aid certificate having been issued on the 12 March 2020). In addition, the mother also seeks security for these payments, which she asks to be deposited into court. The original summons was dated the 29 November 2019. This was amended on the 12 May 2020. In the amended summons she seeks the following:

3. The Petitioner do pay into Court for the benefit of the Respondent and M within 3 days of the date of the Health Alert in Hong Kong being stood down such sum as the Court thinks fit in the circumstances.

As will be seen, and as discussed during the hearing, I have some difficulty with this aspect of the summons, given that the court has no power to make an interim lump sum order. It is also of note that no enforcement proceedings have been issued. However, it is accepted that a court may backdate an order for MPS/interim maintenance and that this may result in an accumulated amount of maintenance being available to a litigant.      

2.  The initial summons was issued following the return of M to Hong Kong from Germany. On the 24 December 2018, the father issued divorce proceedings in Hong Kong. Almost a year later, on the 12 November 2019, the mother returned to Hong Kong with M. For the purposes of this summons I do not intend to go into the detail of The Hague proceedings in both Germany and Hong Kong, but suffice it to say that this appears to be highly emotive, time consuming and expensive litigation.

3.  On the 26 July 2019 the German court made a “safe harbour” order, which according to the mother stated that the father be required to do as follows:

a.  to prove that no criminal investigation has been conducted against me [the mother] in Hong Kong;

b.  to submit to the following formal obligation (which is readily enforceable in Hong Kong)

i.  K [the father] shall provide a furnished apartment with a location and facilities comparable to the previous marital home with approx. 80 sqm living area, bedroom, nursery and garden – Flat ABC - for me and M to use free of charge;

ii.  K shall pay me a monthly financial contribution of 1, 500 euros to increase my part-time income as a flight attendant and to finance my job-related flights to Germany until a court decision of the Hong Kong court responsible for the divorce proceedings and subsequent matter states otherwise;

iii.  K shall fully cover M’s school and living expenses.

4.  On the 9 August 2019 the father entered into an undertaking in Hong Kong which broadly followed the German court order. This states as follows:

I, C, KT, of Hong Kong, the Petitioner herein, DO HEREBY UNDERTAKE to this Honorable Court and to the Respondent that I will:

(1)  provide a furnished accommodation for the Respondent and our daughter, CML, a girl, born on XX July 2014 (“M”) at a location and standard similar to Flat ABC, with approximately 80 sqm living area and 2 bedrooms, by the date when the M returns to Hong Kong until further Order of the Court or otherwise agreed between me and the Respondent.

(2) Pay Euro 1, 500 per month of financial support to T, [the mother] inclusive of the costs of her flights to Germany, until further Order of the Court.

(3)  Be responsible for all of M’s living expenses and school fees until further Order of the Court.

5.  As will be seen, it is the mother’s case that the father has never fully complied with either the German court order or his undertaking. In particular, she maintains that he had rented a flat pursuant to his undertaking, which was largely uninhabitable. She says that it was dirty with substandard furniture and without even clean linen and towels. This is denied by the father. In any event she subsequently booked into a hotel and then moved to stay with a friend and then, finally, rented a small serviced apartment in Hung Hom. In addition, she says that the father has never fully paid the Euro1,500 per month and that he has not paid for M’s living expenses. Thus on her case the father owes her HK$223,371. This is broken down as follows:

Date Due	Cost of rental HK$ (German Order)	Amount due to me (HK$) (German Order, supplement income Euro 1,500*)	Amount due for me (HK$) (Requested in MPS application)	Amount due for M (HK$) (German Order living expenses and requested in MPS application)	Total due from K (HK$)	Total amount received (Euro)*	Deficit (HK$)
12 Nov 2019	25,666 +2,973	12,600	4,900	7,900	54,039	1,470 (HK$12,348)
12 Dec 2019	20,900	12,600	4,900	7,900	46,300	1,500 (HK$12,600)
12 Jan 2020	20,900	12,600	4,900	7,900	46,300	0
12 Feb 2020	20,900 +2,000	12,600	4,900	7,900	48,300	800 (HK$6,720)
12 Mar 2020	21,200	0	0	5,900	27,100	0
12 Apr 2020	21,200	0	0	5,900	27,100	0
12 May 2020	0	0	0	5,900	5,900	0
Total	135,739	50,400	19,600	49,300	255,039	3,770
Total in HK$	135,739	50,400	19,600	49,300	255,039	31,668
							223,371

As will be seen I also have some difficulty with this schedule. In particular, under the German order the mother was to be provided with suitable accommodation and maintenance for herself of Euro’s 1,500 per month plus funds to cover all of M’s expenses including the costs of her education. However, it seems to me that there is some double accounting in the schedule, with the wife claiming Euro1,500 per month plus accommodation and additional maintenance for herself. Thus on the face of it these figures are not accepted.

6.  On the 29 November 2019 the mother effectively submitted to the jurisdiction of the Hong Kong courts and a consent summons was filed in which the interim stay of the proceedings was uplifted. On the 5 November 2019 the court had also made an order, in anticipation of M’s arrival in the territory, which stated that M could not be removed from the jurisdiction of Hong Kong, unless with the written consent of both parties or leave of the court. Both parties also filed undertakings in which they agreed not to apply for additional passports for the child.

7.  On the 12 February 2020 the mother issued a summons seeking leave to remove M temporarily back to Germany. This was at a time when the COVID 19 pandemic seemed to be centred in China and a great many parents had decided at that time to remove their children to places of perceived greater safety. On the 14 February 2020 I granted the mother an order in the following terms:

D  AND UPON the Respondent providing her signed undertaking to the Court and to the Petitioner:-

(a)  to return the child of the family namely C, ML, a girl born on XX July 2014, (“M”) to the jurisdiction of Hong Kong no later than 7 days after the Hong Kong Government entirely stands down its Health Alert in respect of coronavirus in Hong Kong;

(b)  not to make any application in Germany to resist the return of M to the jurisdiction of Hong Kong in accordance with Recital D(a) above;

(c)  not to leave Germany with M whilst she is temporarily residing there;

(d) to comply with Paragraph 5 of the Order dated 26 July 2019 from the Higher Regional Court Munich in the event she breaches this Order and the German mirror order to pay Euro 25,000 fine;

(e)  to apply for a mirror order of this Order in the appropriate Court in Germany;

(f)  to provide the Petitioner with daily video and/or photograph of M by WhatsApp, text or email or other electronic means;

(g)  to provide the Petitioner the weekly report of M.

E.  AND UPON the Court recording Ms. Linda Catherine Heathfield’s undertaking made in the course of the hearing that she will immediately apply for a mirror order in Germany and she will instruct Messrs. Stefani & Tichy to do that on the Respondent's behalf forthwith.

IT IS HEREBY ORDERED THAT:

1.  Leave be granted to the Respondent to temporarily remove the child of the family namely C, ML, a girl born on XX July 2014, (“M”) from the jurisdiction of Hong Kong to reside with the Respondent in Marquartstein, Germany no later than 17 February 2020, and to return M to the jurisdiction of Hong Kong in accordance with her undertaking referred to above.

2.  The Petitioner shall have daily remote access by FaceTime or alternatively by telephone or by other electronic means at a time between 7:30am-8am (German time) or 3pm-3:30pm (German time) on Mondays to Fridays; and between 9am-9:30am (German time) at weekends.

3.  The Petitioner shall have direct access to M~ in Germany, either in Marquartstein, Germany or within an area of 30 minutes from Marquartstein, Germany: -

a.  31 March 2020: 10am - 5pm (day access)

b.  1 April 2020 - 2 April 2020: 10am on 1 April 2020 to 10am on 2 April 2020 (1 overnight)

c.  4 April 2020 - 5 April 2020: 10am on 4 April 2020 to 10am on 5 April 2020 (1 overnight)

d.  6 April 2020 - 8 April 2020: 5pm on 6 April 2020 to 10am on 8 April 2020 (2 overnights).

IT IS FURTHER ORDERED that the Petitioner shall provide to the Respondent his contact details during this access period to include address and mobile telephone number and the Respondent shall have daily FaceTime contact with M whilst she is in the Petitioner’s care at the same times as set out in Paragraph 2 above.

4.  There shall be no order as to costs of this application

As I understand it the mother left Hong Kong with M that evening. She had been in Hong Kong for approximately three months at that stage.

8.  Although the father subsequently sought the child’s return and initially at least seemed engaged in the process, I am told that he has now effectively abandoned the litigation. He filed Notice of Acting in Person on the 11 May 2020 and he did not appear in court on either the 12 May 2020 or the 9 June 2020. Further he did not file his affidavit in relation to this matter as he had been ordered to do. I am told that he is no longer having remote access to M and he has not responded to any other part of the litigation.   

The issues

9.  The issues then are these:

a)  How much maintenance should the father be ordered to pay for M whilst the child is in Germany? Should this sum be backdated at all?

b)  How much maintenance should the father be ordered to pay for the mother and M in the event that they return to Hong Kong? Should this sum also be backdated? In particular, should this sum be backdated for the three-month period that the mother and M spent in Hong Kong from the 12 November 2019 – 14 February 2020?

c)  Is it possible for security to be provided for these payments?   

The mother’s proposal

10.  The mother seeks HK$5,900 per month as interim maintenance for M whilst she is living in Germany. She does not seek any financial support for herself as she continues to receive some salary from her employer – a German airline.

11.  On her return the mother initially sought HK$17,500 per month as maintenance pending suit for herself and HK$7,900 per month as interim maintenance for M, plus provision for housing in the sum of HK$23,600 per month. This equates to HK$49,000 per month. In addition, she asked for an additional HK$13,317 to cover the cost of travel between Germany and Hong Kong. In her 9^th and last affidavit dated the 5 May 2020 she explains it thus:

30. I would respectfully ask the court to consider my application on an urgent basis and in the best interests of M so that I have access to funds paid into court to meet accommodation costs, living expenses for myself and living expenses for M before we return to Hong Kong after the Emergency Health Alert has been stood down and subject always to the Legal Aid Regulations. The total amount I have calculated for the three-month period is HK$393,688 made up as follows:

Expense (three months)	HK$
Accommodation	70,800
M’s living costs	23,700
My living costs	52,500
Travel costs to and from Germany	13,317
Total	160,317
Unpaid maintenance (see exhibit TG9-2 for breakdown)	233,371
Grand Total	393,688

The father’s proposal 

12.  As I have said the father is currently not participating in the litigation and he has not made any proposals with respect to maintenance pending suit or otherwise. I understand that he is not currently supporting M financially.

Background

13.  It seems that this was a fairly brief and rather turbulent marriage between the mother, who works as a part time flight attendant for a German airline and the father who is a pilot, currently working for a Hong Kong airline. It seems that they met in or around 2011, when the mother was in Hong Kong on a layover. They then embarked on a long distance relationship in multiple locations which included Germany, the mother’s home country and Hong Kong, where the father then resided. From the papers it appears that they frequently broke up and then reconciled. M was born on the XX July 2014, but the parties did not marry until the XX December 2017. It seems the marriage was over within a few months.

The law

Maintenance pending suit

14.  The law is well known and not in dispute. Section 3 of the MPPO Cap192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.

15.  Reference may also be made to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:

a.  The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.  A very important factor in determining fairness is the marital standard of living.

c.  In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure, more aptly to be considered on a final hearing.

d.  Where the affidavit or form E disclosure by the payer is obviously deficient, the Court should not hesitate to make robust assumptions about his ability to pay.  The Court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such situation, the Court should err in favour of the payee.

How much maintenance should the father be ordered to pay for M whilst the child is in Germany? Should this sum be backdated at all?

16.  As I have said the mother seeks HK$5,900 per month for M whilst she is living in Germany. In support of that position the mother refers to exhibit TG9-3, which in turn was originally attached to her first affidavit in support of her maintenance pending suit application at TG5-8. This states, inter alia, as follows:          

Child

Item	Amount
School fees – GSIS	tbc
Extra tuition fees	tbc
School books and stationery	250
Transport to school (including school bus)	tbc
Medical / Dental	2000
Extra-Curricular Activities	tbc
Entertainment / presents	2000
Holiday	tbc
Clothing / Shoes	1000
Insurance premia	tbc
Lunches and pocket money	tbc
Other Transport	500
Child-minding fees	tbc
Uniform	150
Other (specify)	tbc
Total monthly expenses for child	HK$5,900 ++

17.  I have some difficulty with this document as it seems to have been prepared on the basis of Hong Kong expenditure as opposed to German expenditure and none of it is substantiated by receipts or other proof of payment etc. Whilst that may have been understandable from a Hong Kong perspective, it seems to me that the mother must have been aware of her expenses for the child in Germany and these should have been included. Doing the best that I can therefore I shall allow HK$5,000 per month. The original application was made on the 29 November 2019 and the mother was in Hong Kong until the 14 February 2020. This sum shall therefore be backdated to the 15 February 2020, the day after the mother left Hong Kong for Germany and shall thereafter be paid on the 15 day of each month pending further order. The next sum is due on the 15 August 2020 and 5 months is currently outstanding. Therefore, the outstanding amount equates to HK$25,000.

How much maintenance should the father be ordered to pay for the mother and M in the event that they return to Hong Kong? Should this sum be backdated at all? In particular, should this sum be backdated for the three-month period that the mother and M spent in Hong Kong from the 12 November 2019 – 14 February 2020?

18.  In addition to the above estimate for M’s actual expenses, the mother calculates her general and personal expenses in Hong Kong as follows:

Part 4 Current Monthly Expenses

4.1 General

Item	Amount
Rent	20,978
Mortgage instalments	7,076
Utilities (electricity, gas, rates, telephone & water)	1337
Management fees	2631
Food	8000
Household expenses	500
Car expenses	1198
Insurance premia	764
Domestic helper(s)	tbc
Other (specify)	tbc
Total monthly household expenses	42484 ++

4.2 Personal

Item	Amount
Meals out of home	6000
Transport	1500
Clothing / Shoes	1000
Personal grooming (including haircut and cosmetics)	3000
Entertainment / presents	2000
Holiday	tbc
Medical / Dental	2000
Tax	tbc
Insurance premia	tbc
Interim maintenance	0
Contribution to parents	0
Dependent family members	0
Other (specify) Hong Kong legal fees (average since March 2019 Translation costs (average monthly)	108000 3000
Total monthly personal expenses	HK$126,500 ++

19.  In so far as the mother’s accommodation costs are concerned, I accept that going forward it would be sensible for the mother to rent a serviced apartment and that the likely cost will be in the region of HK$24,000 per month. I also accept that this is an expense that can be properly attributable to M. There is however an argument with respect to the provision of the previous accommodation and although on the face of the evidence before me at present I tend to accept what the mother says in this respect, it seems to me that it may not be appropriate for the court to backdate this sum, when the father has also paid for the mother’s allegedly substandard accommodation and may still be liable for a rental payment. It is also not, in my view, possible for the court to order security by effectively ordering that the provision for rental be paid as a lump sum in advance. The mother seeks HK$70,800 as three months advanced rental, such sum to be paid into court as security. As indicated during the hearing I do not believe that the court has the jurisdiction to make such an order.

The other general expenses and the mother’s personal expenses

20.  The fee for the serviced apartment will most likely include utilities and management fees. I also accept that the mother will be able to cover her costs in Germany from her own income (including her mortgage and other loan, utilities in Germany, car expenses etc). The mother does not own a car in Hong Kong. That leaves provision for food and other household expenses under the General expenses heading in Hong Kong to be provided for. I will allow HK$4,800 per month for the mother’s share of those expenses (HK$4,250 = her share of the food and household expenses and the remainder being a small contribution towards her personal expenses).

M’s share of the general expenses and her own expenses

21.  In addition to provision for housing in the sum of HK$24,000 per month, I also accept that the father should pay an additional HK$4,250 per month as a contribution towards M’s share of the food bill and other household expenses, plus HK$5,000 per month for her other expenses. For the avoidance of doubt this does not include school fees, school books and stationery, school bus fees, ECA’s etc etc. This currently amounts in total to HK$33,250 per month.

Should these sums be backdated?

22.  As indicated above I am not of the view that the rental component of this calculation should be backdated. In so far as the maintenance for the mother in the sum of HK$4,800 per month and the maintenance for M (other than the rental amount) in the sum of HK$9,250 per month (i.e. HK$33,250 – the rental component of HK$24,000 = HK$9,250), I accept that both of these amounts should be backdated for the three-month period that the mother and M were in Hong Kong – due credit to be given for payments already made by the father. This amounts to HK$42,150 (i.e. (HK$4,800 per month x three months) = HK$14,400 + (HK$9,250 per month x three months) = HK$27,750, which totals HK$42,150).

23.  On the mother’s own calculation the father paid HK$31,668 whilst she and M were in Hong Kong. Thus it seems to me that approximately HK$10,500 remains outstanding (i.e. HK$42,150 – HK$31,668 = HK$10,482).     

The mother’s earning capacity   

24.  I accept that the mother only has a limited earning capacity, especially at present, and that her financial circumstances are currently very strained. However, she acknowledges that she currently earns enough to cover her own expenses and a share of M’s expenses, whilst they are living in Germany and I have approached this application on that premise. When she returns to Hong Kong she will need sufficient funds to rent an acceptable apartment for M and she cannot do that from her own financial resources. This was acknowledged in the original German order and is clearly still the case today.

The father’s ability to pay

25.  The father’s current financial position is largely unknown. When he was participating in this litigation he said that his financial circumstances were also strained, but it is interesting to note that this is seemingly not what he told the authorities in Germany. The mother also believes that he has other financial resources at his disposal. In his Form E he states that he has an income of just over HK$48,500 per month. However, Mr Barnes on behalf of the mother was able to show that in reality he was paid in the region of HK$848,475 for the calendar year 2019 – or HK$70,700 per month. There are no pay slips nor any contract of employment produced by the father. Further, he has elected not to file an affidavit in response to the mother’s affidavit. In such circumstances I accept that I am able to draw some adverse inferences. It is the mother’s case that the father enjoyed a reasonable standard of living during their relationship and that he had other sources of income available to him. She also says that he had previously worked as a racing pilot and had held other positions within his own mother’s company. An analysis of the father’s credit cards also shows that he enjoys a reasonable standard of living. In such circumstances I am satisfied that he should be able to pay what is ordered. This is especially so given that this is in keeping with the German order and the undertaking given by him subsequently in these proceedings. In other words, he accepted at the time that the German order was made that he would financially support M and the mother when they were in Hong Kong. Longer term it is also expected that he will contribute towards M’s educational costs, again as was originally anticipated by the German courts and as agreed to by him. If he chooses not to comply then that is something that will need to be taken into account when considering the mother’s application for permanent relocation.      

Is it possible for security to be provided for these payments?  

26.  Finally, and for the avoidance of doubt, I shall not order that security be provided for the payments. As discussed with counsel and as indicated during the hearing, I am not of the view that the court has the jurisdiction to make the orders as originally sought by the mother. However, I shall backdate the payments as appropriate and I shall also make an order that these payments be made ahead of the Mother and M’s anticipated return to the jurisdiction.    

Costs

27.  I accept that the mother had no alternative but to make this application and although she has not been completely successful, she has certainly been more successful than the father. Further the father has not complied with court orders, he has avoided service and has generally made life far more difficult than it should have been. Consequently, I shall exercise my discretion and make an order nisi to be made absolute in 14 day’s time, that the husband do pay the mother’s costs of and arising out of the original summons dated the 29 November 2019 and the amended summons dated the 12 May 2020 forthwith, such costs to be taxed if not agreed on a party and party basis. The mother’s own costs to be taxed in accordance with Legal Aid Regulations. There shall be certificate for counsel.

Order

28.  Consequently I shall make an order as follows:

IT IS ORDERED THAT:

1)  The Petitioner father shall pay interim maintenance to the Respondent mother for the child of the family M, in the sum of HK$5,000 per month, with effect from the 15 August 2020 whilst the child resides in Germany and until the mother and child return to Hong Kong, whereupon the sum shall be increased to HK$33,250 per month, the first payment to be made 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. Such sum to be paid on a monthly basis thereafter, until further order. This sum shall be deposited with the Respondent’s solicitors.

2)  The Petitioner shall pay maintenance pending suit to the Respondent for herself in the sum of HK$4,800 per month, the first payment to be made 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. Such sum to be paid on a monthly basis thereafter, until further order. This sum shall be deposited with the Respondent’s solicitors.

3)  As set out in paragraphs 17, 22 and 23 above, these sums shall be backdated and payment shall be made in full 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. This sum shall be deposited with the Respondent’s solicitors.

4)  The Petitioner shall also pay the sum of HK$14,000 as a contribution towards the cost of flights from Germany to Hong Kong for the mother and M. Again this sum shall also be made in full 3 days after the Hong Kong Government stands down its health alert in respect of the coronavirus in Hong Kong. This sum shall be deposited with the Respondent’s solicitors.

5)  The First Appointment hearing shall be adjourned to the 12 November 2020 at 9:30 a.m.

6)  Both parties do personally attend that hearing.

7)  There shall be an order nisi to be made absolute in 14 day’s time that the Petitioner do pay the Respondent’s costs of and arising out of the summons dated the 29 November 2019 and the amended summons dated the 12 May 2020, such costs to be taxed if not agreed on a party and party basis and shall be paid forthwith. There shall be Legal Aid taxation of the Respondent’s own costs. There shall also be a certificate for counsel.

8)  Liberty to apply on an urgent basis.

The Petitioner did not appear and was unrepresented at the hearing

Mr. Peter Barnes instructed by Howse Williams for the Respondent