AU YEUNG YEE MAN, executrix of the estate of AU YEUNG WING HONG, deceased v. WAN PO JUN MARY PAULINE (a bankrupt)

HCMP 323/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 323 OF 2012

(ON AN INTENDED APPEAL FROM DCCJ NO. 3315 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Yeung VP (giving the judgment of the Court):

Introduction

1.  The plaintiff is the executrix of the estate of Au-Yeung Wing Hong (the deceased) who died on 11 April 2008, leaving a will appointing the plaintiff as the sole executrix and trustee with the plaintiff and her brother as the only beneficiaries.

2.  The defendant was the deceased’s co-habitee and had since 2003 been living with the deceased’s family at Flat A 42^nd Floor of Tower 1, Harbourfront Landmark in Kowloon (“the property”).

3.  After the deceased’s death, the plaintiff and the defendant have been in litigation on a number of issues.  The defendant’s challenge against the validity of the deceased’s will failed in HCAP 19/2008.  The defendant then commenced HCA 1478/2009 under the Inheritance (Provision for Family and Dependants) Ordinance, claiming half share of the deceased’s estate and the right to use and occupy “the property”.  The plaintiff defended the claim.

4.  There were other unsuccessful actions commenced by the defendant against the plaintiff and because of the adverse costs orders made against the defendant in those actions, she was adjudicated a bankrupt on 11 April 2011.

5.  On 27 August 2011, the plaintiff commenced the present action against the defendant for possession of “the property” on the basis that the licence to the defendant to occupy “the property” had been revoked.  The defendant defended the action on the basis that she, as the “de facto wife” of the deceased, had interest in the estate of the deceased, including the right to occupy “the property”.

6.  The plaintiff had taken out an Order 14 application, but as a result of counsel’s advice, took the view that her claim for possession of “the property” should be incorporated as part of her counterclaim in HCA 1478/2009.  The plaintiff sought an order to stay the present action.

7.  On 5 January 2012, HH Judge Leung (the judge) in the District Court stayed the present action so that the plaintiff could put forward her claim for possession of “the property” as a counterclaim in HCA 1478/2009.

8.  The defendant, not satisfied with the order, sought leave from the judge to appeal against the order.  The application was dismissed on 8 February 2012.  The defendant now renews her application.

9.  In addition to those matters argued before the judge, the defendant simply puts down the following in her application:

“The said case is a duplicate one. As per HCA 1478/2009 lodge on 25 June 2009.”

10.  Under Order 59 rule 2A(5) of the Rules of the High Court, the Court of Appeal may determine an application for leave to appeal without a hearing on the basis of the documents filed in court.  We consider it appropriate to adopt such a course in this application and in so doing, we have considered the history of the matter and all the documents as well as submissions by the parties.

11.  For leave to appeal to be granted, the defendant would need to satisfy this court that her appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard.

12.  The Chief Judge in 厦門新景地集團有限公司 v Eton Properties Limited & Others, HCMP 13, 15, 18 & 21/2012 reiterated the following principles for granting leave to appeal to the Court of Appeal:

“No leave to appeal should be granted unless the threshold test of reasonable prospect of success is satisfied, or (which is not relevant to the present case) there is some other reason in the interests of justice why the appeal should be heard : section 14AA(4), the High Court Ordinance (Cap 4). But the court still retains a discretion whether to grant leave even if the threshold test is satisfied. This is particularly so in relation to an intended appeal against a case management decision. In relation to such an intended appeal, this court rarely intervenes save in exceptional circumstances. As Kwan JA reiterated in the recent case of Mimi Kar Kee Wong Hung v Severn Villa Limited, HCMP 2192/2011, 12 January 2012, para 31, it need hardly be emphasized that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible. In relation to case management decisions, the intended appellant must show that the judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’, or if the judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’. It is of great importance that this court does not descend to micro‑managing cases pending before the court below.”

13.  The judge stayed the proceeding in order to avoid duplicity of actions.  The judge was clearly right to make the order in the proper management of the case.  The judge had examined the defendant’s proposed grounds of appeal and rejected each of them.

14.  We are in complete agreement with the judge.  Quite apart from the fact that the defendant, as an un-discharged bankrupt, no longer possesses an independent right to carry on with any legal proceeding as all her properties are now vested in the trustee-in-bankruptcy who had indicated that they had not been notified of the order of the judge and that in any event they would not be willing to prosecute the appeal for the defendant, the defendant’s proposed appeal is completely devoid of any merit.

15.  As the application is entirely without merit, it is dismissed with costs to be taxed. We also make an order under O 59 r 2A(8) that the defendant may not request this determination to be reconsidered at an oral hearing inter partes.