CHEN, CHERYL DEANNA v. CHEN PAK YIN STELLA

HCMP 256/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 256OF 2015

(ON AN INTENDED APPEAL FROM HCAP NO. 16 of 2008)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  By this application, the Plaintiff seeks leave to appeal against the decision of DHCJ Chu on 18 November 2014 in respect of her summons dated 13 June 2014 for re-amendment of her Statement of Claim in HCAP 16/2008, a probate action. The learned judge refused to grant leave to appeal on 26 January 2015.

2.  The application for leave is opposed and Mr Miu, counsel for the Defendant, has prepared a statement of opposition dated 12 February 2015 pursuant to Order 59 Rule 2A(4).  

3.  The Plaintiff told the court at the hearing of 24 March 2015 that she had not been given a copy of the statement of opposition. After we heard submissions from her (the Defendant, who had filed a Notice in Act in Person on 17 March, did not attend the hearing), we granted her leave to lodge her submissions in reply to the statement of opposition within 7 days. The Plaintiff lodged her reply submissions on 30 March 2015, which we have duly considered.

4.  Without leave from the court, she also filed 2 further sets of documents on 8 and 15 April 2015 respectively. In the documents she lodged on 8 April, she sought leave to adduce further evidence. In the documents lodged on 15 April, she again sought to adduce yet further documents by way of “insertions”. We are not minded to allow her to do so. The short and direct answer to these applications are that they do not satisfy the requirement of Ladd v Marshall [1954] 1 WLR 1489. We do not see any justification to allow the Plaintiff to have further materials placed before this court after she had been given ample opportunity to do so prior to the hearing of 24 March 2015.     

5.  We shall not repeat the background of the case and the nature of the application which have been adequately set out in the judgment of 18 November 2014.

6.  It is clear from the judgment of 18 November 2014 that the judge refused to grant leave to re-amend on the grounds that the proposed re-amendments were either unnecessary (as they are matters of evidence), unarguable in the context of a probate action (as opposed to an administration action which HCAP 16/2008 is not) or hopeless (in respect of the allegations of Lost Handwritten Will).  She also took account of case management considerations at paragraphs 70 to 72.  

7.  In the draft Notice of Appeal attached to the affirmation of the Plaintiff of 2 February 2015, as far as we can comprehend, the Plaintiff challenged the judge’s decision on the following bases:

(a) Tainted illegality;

(b) Rejection of the Lost Handwritten Will without a trial;

(c) Timing of the application;

(d) Misapprehension of facts; and

(e) Plaintiff has to plead the Nomination to support her interest in the probate action.

8.  The judge dealt with these complaints and explained why leave of appeal should not be granted in her Decision of 26 January 2015.

9.  On the whole, we agree with the judge and, subject to what is said below, we do not find it necessary to repeat what the judge had said in her judgment which, in our view, has adequately explained why leave to amend should not be allowed at this stage.  It has to be remembered that in so doing, the judge exercised a case management discretion with which this court will not interfere unless it is clearly wrong. 

10.  We would say a few words in respect of the Lost Handwritten Will.  The judge had considered at paragraphs 37 to 69 whether such a new claim should be allowed to be raised in light of all the relevant circumstances, including the relevant evidence pertaining to such claim and the progress of the action so far.  The judge reviewed the relevant evidence at some length and concluded at paragraph 63 of the judgment that the Plaintiff made a conscious decision of withholding this allegation of Lost Handwritten Will in 2008. 

11.  This case has a chequered history.  It is a probate action in respect of a deceased who died in 2005.  The action was commenced in 2008.  There have been various periods of hiatus.  Various rounds of evidence had already been filed. The latest round of evidence was filed in 2013 and as the judge pointed out the action was ready for trial.  The allegations in respect of the Lost Handwritten Will did raise an entirely new case and we do not think the judge should be criticised for taking the view that they should have been raised much earlier. The judge was also correct in reaching the conclusion that it must have been the Plaintiff’s deliberate choice in not putting forward such a case after she had the benefit of legal advice. We do not think the matters raised in the Plaintiff’s reply submissions can cast any doubt on these conclusions.   

12.  Against such unusual background, in light of the requirement under s5(2) of the Wills Ordinance, the judge was entitled to examine the Plaintiff’s evidence in support of these allegations even in the context of a late application for leave to amend.  We do not think the judge can be faulted in coming to the conclusion that the evidence on the Lost Handwritten Will was vague, lacking in particulars, confusing and unsatisfactory.  In our judgment, the Plaintiff’s claim based on the Lost Handwritten Will has no reasonable prospect of success.  In light of the special circumstances and the history of the matter, we agree with the judge that the application for leave to add such a claim at such a late stage on the basis of such weak and inconsistent evidence of the Plaintiff should be refused.

13.  As regards the Nomination of 1991, we cannot see any reasonably arguable basis for contending that it could operate as a codicil to the 2005 Will. The 2005 Will begins with a revocation of all former wills, codicils and testamentary dispositions. Thus, irrespective of the effect the 1991 Nomination prior to the making of 2005 Will, it could not have further effect after 2005 if the 2005 Will were held to be valid. Further, the Nomination only operated in respect of the entitlement to an underlease of the Lung Cheung Court unit for the purpose of clause 4(3) of the underlease of 12 May 1990. As the judge stated at para 34 of her judgment, the underlease of 12 May 1990 had ceased to have effect upon the assignment of the property into the name of the deceased on 19 July 2003.  Thus, even in the event that the 2005 Will were held to be invalid, the Nomination cannot operate, as a matter of law, as a testamentary disposition of the interest of the deceased in the Lung Cheung Court unit which at the time of his death was no longer an interest under the underlease of 1990.     

14.  We have also read the documents filed by the Plaintiff on 25 February 2015.  In our view, none of them is of any avail to the Plaintiff.

15.  We do not think the proposed appeal has any reasonable prospect of success and there is no other reason why leave should be granted in the interest of justice.  We refuse to grant leave to appeal with costs.

16.  We would also fix the costs of the Defendant in this application at $30,000.