CHANG YUNG MAY ESTHER v. TSUI YUEN YING

HCAP 3 & 4/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS. HCAP3 & 4 OF 2001

HCAP3 of 2001

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D E C I S I O N

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1. Today, I have two applications, under two related probate actions, to withdraw two practically identical summonses for stay of the two probate actions on the ground of forum non conveniens.

2. Mr Chiu, on behalf of the 1st defendant in Probate Action No. 3, and the defendant in Probate Action No. 4, i.e. the applicant of the stay, is now asking for leave to withdraw the stay applications: He told me that there was, in fact, a third application for stay in a related High Court action, which was heard by Chu J in October. The application failed and, therefore, the High Court action will have to be tried and heard in Hong Kong, and his client therefore considers that there is really no point in proceeding with the applications for stay in the present probabe actions; thus today's applications for leave to withdraw the summonses for stay. Originally, the summonses were fixed to be heard by Yam J later this month.

3. These two applications for withdrawal of summonses are opposed by the plaintiffs on the ground that they want costs to be paid forthwith by the applicant. And in the absence of such an offer for costs, they oppose these applications for withdrawal, and my attention has been drawn to a passage in the Hong Kong Civil Procedures 2001, paragraph 21/6/1, to the effect that "if the consent of the other party is not obtained or is refused, leave to withdraw [a summons] may be sought only at the hearing of the summons, when the master" - or, perhaps, I can add, the court, "will deal with the costs occasioned thereby."

4. The rationale behind is said to be that at a substantive hearing of the summons, the court can go into the full merits of the case and decide the question of costs.

5. So, Mr Woo, on behalf of the plaintiffs, opposed these applications today. As I said, the summonses have been fixed to be heard later this month by a judge.

6. An additional difficulty facing me today is this. Mr Chiu, on behalf of the applicant, argued that his case falls within Order 62 rule 6(2) because his client is involved in these proceedings as a purported executor under a purported will of the deceased person involved, and is, in any event, a potential administrator of the estates involved in the two probate actions. Therefore, pursuant to the provisions in Order 62 rule 6(2), unless the court is of the view that his client has acted unreasonably or has, in substance, acted for his own benefit rather than for the benefit of the two estates in taking out the applications for stay, costs should not be ordered against his client; rather, costs should be ordered to be paid out of the estates in question.

7. In other words, in order for Mr Woo's clients to get costs against the applicant, whether to be paid forthwith or otherwise, the court has to be satisfied that the applicant did not act reasonably, or only took out the applications in question for his own benefit rather than for the benefit of the estates.

8. Today's hearing is only fixed for 30 minutes and there is no way I can decide at this hearing whether that was or was not the situation. In fact, Mr Woo, on behalf of the plaintiffs, told me that his side is not really ready to argue this point, it being remembered that his primary point is that the court should not deal with the question of granting leave to withdraw at all at this hearing but should only deal with it at the substantive hearing.

9. So marrying the two points respectively raised by Mr Woo and Mr Chiu together, in my judgment, there is indeed some substance in the argument of Mr Woo that the court should not deal with these applications for leave to withdraw the two summonses at this stage.

10. The matter, both from the point of view of principle as well as the point of view of practical consideration, should really be dealt with at the substantive hearing fixed for the two summonses, although at that hearing, the main question or the only question would be the question of costs. So although it is open to me to grant leave to withdraw the two summonses now and reserve the question of costs to another date to be fixed, I do not see any real advantage for my doing so, which would be contrary to the commentary set out in the White Book relating to the withdrawal of summons. I see no good reason for departing from the practice set out in the White Book in the present case.

11. So I will adjourn the two summonses to the date fixed for the hearing of the summonses, and leave it to the court hearing the two summonses to decide on this question of leave to withdraw and, perhaps more importantly, to decide on the question of costs arising from the applications to withdraw.

12. Under Probate Action No. 3, I order that the hearing of the 1st defendant's summons dated 3 December 2001 be adjourned to 20 December 2001 at 10 am. Costs reserved.

13. And under Probate Action No. 4, I order that the hearing of the defendant's summons dated 3 December 2001 be adjourned to 20 December 2001 and the same be heard immediately after the hearing of the 1st defendant's summonses respectively dated 16 July 2001 and 3 December 2001, in High Court Probate Action No. 3 of 2001. Costs reserved.