KWAN CHI PUN in his personal capacity and the executor of the estate of Kwan Sui Lin, deceased v. LAI HOI YEE AND ANOTHER

HCA 557/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 557 OF 2014

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HCMP 2078/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2078 OF 2015

(TRANSFERRED FROM FCMP 225 OF 2012)

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D E C I S I O N

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1.  This is an application by Hoi Yee and Lai[1] to vary the costs order nisi made in the Judgment in these actions dated 5 August 2016.  It is contended by them that there should be no order as to costs.

2.  I am unable to accede to this application for the following reasons :

(i)   These are not probate action (the Will was never disputed), and I do not believe that the principles applied to a testamentary suit (see Mitchell v Gard 164 ER 1280), which are heavily relied upon by Hoi Yee and Lai, should be applied in this case.  I note the observation made by Briggs J in Pearson v Lehman Brothers Finance SA [2010] EWHC 3044 (Ch), para 13.

(ii)   I take into account the observation of Ormrod J made in Re Fullard (deceased) [1981] 2 All ER 796 at 799b-c concerning a small estate.  The Estate is not substantial and the unfairness of depriving Kwan, who has lost his earning capacity, of the costs of the trial cannot be ignored.

(iii)   I agree with Mr Wong, appearing for Kwan, that Hoi Yee and Lai had a weak case in HCA 557/2014, which they pursued with full knowledge of the Will.  It is said that the circumstances under which the Will was made are suspicious.  However, one must not overlook the fact that the Will was made with the help of HAL and the Mother had ample opportunity to make a fresh will if she wanted to do so.  As regards HCMP 2078/2015, the request that the Property be transferred to Hoi Yee was unrealistic.

(iv)   I do not agree that there was any conduct on Kwan’s part which justifies depriving him of the costs of these actions.  On the contrary, he made on open offer to Hoi Yee before the trial started.  That offer was improved upon.  Yet the actions proceeded to the end.

(v)   I should not overlook the fact that the trial of these actions involved Lai speaking ill of his ex-wife, who was unable to defend the allegations.  That was specifically brought to the attention of the parties at the start of the trial.

3.  In the premises, this application is dismissed with costs to Kwan.