|
CACV 208/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 208 OF 2009
(ON APPEAL FROM HCAP NO. 19 OF 2008)
--------------------------------
| |
IN THE ESTATE OF AU‑YEUNG WING HONG (歐陽永康), deceased |
--------------------------------
BETWEEN
| |
AU‑YEUNG YEE MAN(歐陽綺雯) |
Plaintiff |
| and |
| |
WAN PO JUN MARY PAULINE(溫寶珍) |
Defendant |
--------------------------------
Before: Hon Tang Ag CJHC, Yeung JA and Yuen JA in Court
Date of Hearing: 14 January 2011
Date of Judgment: 7 March 2011
_______________
JUDGMENT
_______________
Hon Tang Ag CJHC (giving the judgment of the Court):
1. In the judgment dated 17 June 2009 Master Levy ordered that the Defence and Counterclaim of the Defendant be struck out; that the Caveat entered by the Defendant should cease to have effect, and that the Plaintiff was entitled to apply for a grant of probate of the deceased’s estate.
2. The Defendant’s appeal was heard by Yam J on 19 August 2009. On the same day, Yam J dismissed the appeal. The Defendant then appealed to us and her appeal was dismissed by our judgment of 6 October 2010.
3. Now the Defendant applies for leave to appeal to the Court of Final Appeal against our judgment.
4. The Defendant’s case is that the deceased had cohabited with her for many years. She contended that she is entitled to administer and share the deceased’s estate as compensation for breach of promise to marry on the part of the Deceased.
5. The Defendant submitted that a question of great general or public importance may be involved because section 23 of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 (“LARCO”) could be amended with retrospective effect. Section 23 of LARCO provides that:
“(1) An agreement between 2 persons to marry one another shall not have effect as a contract giving rise to legal rights and no action shall lie for breach of such an agreement.
(2) This section shall have effect in relation to agreements entered into before 7 October 1971, except that it shall not affect any action begun before that date.”
6. Whether section 23 of LARCO should be amended is not a matter for adjudication by the court. There is no basis upon which leave to appeal could be granted.
7. So we refuse leave to appeal with costs to be taxed unless agreed.
(Robert Tang)
Ag Chief Judge, High Court |
(Wally Yeung)
Justice of Appeal |
(Maria Yuen)
Justice of Appeal |
The Defendant, in person, present
Mr. Paul H. M. Leung, instructed by Messrs Liu, Chan & Lam, for the Plaintiff
|