CHOY PO CHUN AND ANOTHER v. AU WING LUN

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

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J U D G M E N T

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Introduction

1.  The main action is a probate action over, among other things, the validity of an alleged will in which the defendant (“D”) was appointed as one of the executors.  Before the court were three applications as follows:

(i)   A notice of appeal filed by the plaintiffs (collectively called “Ps”) on 26 November 2013 against Master Levy’s order allowing extension of time for  D to comply with O 76 r 5 of the Rules of the High Court (“RHC”)  in filing an affidavit of testamentary scripts (“Appeal”);

(ii)   Ps’ summons issued on 29 November 2013 to strike out D’s amended defence and counterclaim (“Striking Out Summons”);

(iii)   D’s summons issued on 25 March 2014 for retrospective leave for him to file his 7^th affirmation on 19 March 2014 (“Leave Summons”).

2.  The Appeal was in fact lodged earlier than the Striking Out Summons, but for some reasons, it was fixed for hearing before this court after the hearing for the Striking Out Summons.  I will deal with the Appeal first, then the Leave Summons and lastly the Striking Out Summons.

Brief Background

3.  The Deceased was a man of substantial wealth.  He passed away on 7 July 2009 at the age of 93, survived by his wife, 2 sons and a daughter, and 6 grandchildren (“Grandchildren”).  D is the elder son, and the younger son is called Au Yuk Lun, Anthony (“Anthony”).  Both Anthony and D are solicitors.

4.  The 1^st plaintiff (“P1”) is Anthony’s wife and they have 4 children, a son who is the  2^nd plaintiff (“P2”) herein, and 3 daughters, one of whom is called Charleen.

5.  D has 2 children, namely a son Wilson and a daughter Sarah.

6.  The Deceased  had executed at least 4 wills:

(i)   In 1976, the Deceased executed a will bequeathing all of his properties to Anthony and D only (“1^st Will”)[1];

(ii)   On 31 October 1977, the Deceased executed a will in English bequeathing all his real and personal property to his wife Madam Leung Sheut Hung, and appointing her the sole executrix of the will (“2^nd Will”)[2];

(iii)   On 19 July 2002, the Deceased executed a will in English (“3^rdWill”), in which  he appointed P1, P2 and Charleen as executors and trustees, and devised and bequeathed his residuary estate to the Grandchildren in equal shares[3];

(iv)   On 5 September 2008, the Deceased executed a will in Chinese  in which  he appointed Anthony and D as executors and trustees, and devised and bequeathed his residuary estate to his four male descendants, namely, Anthony and his son P2,  and  D and his son Wilson in equal shares (“4^th  Will”).

7.  There was no dispute that the 1^st Will was revoked by the 2^nd Will which was in turn revoked by the 3^rd Will, and that the 3^rd Will was duly executed in all respects.  Neither D nor Anthony was named as beneficiaries under the 3^rd Will, but under that will, Anthony’s family would have control of the Deceased’s estate as they would be entitled to two-thirds of the estate.

8.  D and Anthony were both named beneficiaries under the 4^th Will, and effectively under this will, D and Anthony would have joint control of the Deceased’s estate and each family would be entitled to one half share of the estate.

9.  On 24 September 2009, D applied for grant of probate under HCAG 10859 of 2009, claiming to be one of the executors under the 4^th Will (“Grant Application”).

10.  On 29 March 2010, Ps commenced the present probate action HCAP 7 of 2010 for the pronouncement of the validity of 3^rd Will and against the validity of the 4^th Will, alleging, among other things, that the Deceased’s signature on the 4^th Will was forged, or alternatively, the Deceased did not know or approve the contents of the 4^th Will, as he had been suffering from dementia since in or about 2007 (“Probate Action”).

11.  D filed his acknowledgment of service on 12 April 2010.   Ps filed their affidavit of testamentary scripts on 21 April 2010.  Under O 76 r 5 of the RHC, D’s affidavit of testamentary scripts should have been filed on or before 26 April 2010 but he failed to do so.

12.  On 14 June 2010, D filed the defence and counterclaim, seeking to pronounce for the validity of the 4^th Will.

13.  It was not until 12 November 2013 that D took out a summons for an extension of time to comply with O 76 r 5.  The hearing was heard on 14 November 2013, and Master Levy granted leave to D to comply with the rule within 7 days (“Order”).

14.  On 15 November 2013, D filed an affirmation purportedly to be in compliance with O 76 r 5 (“4^th Affirmation”).

15.  Ps lodged the Appeal on 26 November 2013, against the Order.

16.  It was further Ps’ case that the contents of the 4^th Affirmation did not meet the requirements, in that D only deposed to the existence of the 4^th Will and nothing else.  D had not deposed in the affirmation as to whether any other testamentary scripts (in the form of a draft or otherwise) existed or not, nor had he exhibited the original of the 4^th Will in the 4^th Affirmation nor lodged the same with the court for filing.

17.  Three days after Ps lodged the Appeal, Ps further took out a summons on 29 November 2013 to, among other things, strike out D’s amended defence and counterclaim, or alternatively seek an order that D should have the burden of proof in respect of the due execution of the 4^th Will and the physical and mental capacity of the Deceased at the time of the execution of the 4^th Will (“Striking Out Summons”).

18.  The day before the hearing of the Striking Out Summons, D filed his 7^th affirmation, said to be a supplemental affirmation of testamentary scripts (“7^th Affirmation”).  At that time, D had not sought leave to file his 7^th Affirmation.

19.  Notwithstanding the filing of the 7^thAffirmation, Ps proceeded with the Striking Out Summons, which was first heard before this court on 19 March 2014, and was adjourned part-heard to 2 May 2014.  In the meantime, the Appeal came up for hearing on 24 March 2014, during which D undertook to issue a summons seeking retrospective leave to file his 7^th Affirmation within 3 days.  D was accordingly directed to do so, and all matters were later adjourned to 2 May 2014.  D then issued his Leave Summons.

The Appeal

Generally

20.  An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  Further, a judge hearing such an appeal is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself, and by so doing, the judge does not fail to exercise the discretion conferred on him[4].

21.  There was no written decision of Master Levy, but her reasons could be seen from the transcript as follows[5]:

“Court : So you refuse to let the defendant comply? So that means they don’t need to comply with Order 76, rule 5.

[Ps’ Counsel] : No, no, no, Master … Our view is that there will be some serious consequences arising from them, even if they comply with filing the affirmation …

…

Court : I don’t understand what your objection is? Your objection is they are not allowed … they should not be given any opportunity to comply with Order 76, rule 5?

[Ps’ Counsel] : Without consequences

Court : I don’t understand what you mean by ‘without consequences’ …

Court :         … it is unfortunate that in this case the non-compliance by the defendant of Order 76, rule 5, has not been brought to the attention of the court and the plaintiff has not taken any step to compel the defendant to comply.  The obligations under Order 76 rule 5 are mandatory on both the Plaintiff and the defendant.  Plaintiff counsel, Mr Au, seemed to be objecting this application on the ground that the defendant’s compliance with this rule may bring to some consequences that may further delay the matter.  As I have said, since the obligations on both parties are mandatory, this must be done.  If there may be further issues arising from this compliance, the matter may be taken further.  However, so far as this summons is concerned, it is only a matter of time.  Therefore, I order the defendant to comply with Order 76, rule 5, within 7 days.”

22.  It was accepted by Ps’ Counsel Mr Kevin Li that Master Levy would have jurisdiction or power to grant an extension of time before the defence and the counterclaim had been filed under O 2 and O 3.  The issue was whether Master Levy should exercise such jurisdiction or power after the defence and counterclaim had been filed.

23.  Mr Li submitted that although a default in complying with time, being an irregularity, should not nullify any proceedings, where the irregularity was of fundamental nature and involving an application which might involve an order with drastic consequences, a court would be slow to overlook the irregularity and he had referred to paragraph 2/1/1 of the Hong Kong Civil Procedure 2014 Vol 1 (“HKCP”).

24.  It was Ps’ case that there had been a fundamental irregularity that was incurable and the Master had no power to grant an extension of time.  Alternatively, even if she did, an “unless order” should have been made in all the circumstances of this case.

Whether there is an unlimited power generally to grant extension of time for compliance with O 76 r 5 of RHC

25.  One of Ps’ grounds for the Appeal was that the Master had failed to have regard to whether the court had unlimited power to grant extension of time for compliance with O 76 r 4[6].

26.  This issue did not appear to have been raised at the hearing before the Master by the then Counsel acting for Ps, who in fact accepted that D would have to file the affidavit “sooner or later”[7] and he seemed to be only pointing out to the Master that there would be some “serious consequences” due to D’s non-compliance[8].

27.  O 76 r 5 of RHC provides that –

“(1) Unless the Court otherwise directs, the plaintiff and every defendant who has acknowledged service of the writ in a probate action must swear an affidavit-

(a) describing any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and

(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person.

(2) Any affidavit required by this rule must be filed, and an office copy thereof and any testamentary script referred to therein which is in the possession or under the control of the deponent, must be lodged in the Registry within 14 days after the acknowledgment of service by a defendant to the action or, if no defendant acknowledges service and the Court does not otherwise direct, before an order is made for the trial of the action.

(3) Where any testamentary script required by this rule to be lodged in the Registry or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be lodged in the Registry and the words which appear in pencil in the original must be underlined in red ink in the copy.

(4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed, or any testamentary script lodged, by any other party to the action under this rule, unless and until an affidavit sworn by him containing the information referred to in paragraph (1) has been filed.

(5) In this rule “testamentary script” (遺囑性質的文稿) means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.”

28.  Under the above rule, the filing of affidavits of scripts should precede the service of pleadings and this is also clearly contemplated by O 76 r 7 of RHC.  The purpose of this procedure is to ensure that all parties are well acquainted with all the testamentary scripts that they are dealing with, and to ensure that all scripts are identified at the earliest opportunity.  As stated in paragraph 76/5/1 of HKCP, it is impossible to plead properly until it is known what scripts exist[9].

29.  Mr Li had referred this court to Part 57.5 of the UK Civil Procedure Rules, and the UK Chancery Guide on Part 57 and the UK PD 57.  In UK, if the requirements for filing the testamentary documents are not complied with under their rules, it is likely that the claim will not be issued and, correspondingly, that the acknowledgment of service will not be permitted to be lodged.  Relying on the UK rules, Mr Li then submitted that in Hong Kong, the courts should have similar power to set aside a defence and counterclaim served prior to the filing of the affidavit of testamentary scripts under O 2 of RHC due to irregularity[10].

30.  The provisions in our O 76 r 5, however, are not exactly the same as the UK Rule 57.5 under Part 57.  Further the HK Practice Direction 20.2 which came into effect on 1 August 2012 also contained different provisions from the UK PD 57.

31.  One of the main differences between the rules in HK and those in UK lie in the time when their equivalent to our affidavit of testamentary scripts and the scripts are required to be filed.  Under UK Rule 57.5(3) and (4), unless the court directs otherwise, these have to be filed by the claimant at the time when the claim form is issued, and by a defendant at the time when he acknowledges service.  Para 24.1 of the UK Chancery Guide thus states that if the requirements are not complied with it is likely that the claim will not be issued and correspondingly, that the acknowledgment of service will not permitted to be lodged.

32.  In Hong Kong, the time for the plaintiff and the defendant who has acknowledged service to file the affidavit of testamentary script is within 14 days after the acknowledgment of service, or if no defendant acknowledges service and the court does not otherwise direct, before an order is made for the trial of the action.

33.  The UK rules are clearly drafted to ensure the required testamentary documents and the written evidence are being filed at the very outset of the probate proceedings.  We do not have such requirements in Hong Kong.  However, even under the UK provisions, Rules 57.5 (2) and (4) are both preceded by the words “unless the court directs otherwise”.

34.  Our O 76 r 5 (1) is also preceded by the words “Unless the Court otherwise directs...”. On my reading of this rule, there is clearly power generally for the court to direct any matters in relation to the filing of an affidavit of testamentary scripts, including extending the time for compliance with the requirement under r 5 (2).

35.  In Lam Ping v Zi Yen Lu HCAP 13/2004 (unrep, 31/03/10), as said by Lam J, as he then was, under O 76 r 5, all parties to a probate action are required to file an affidavit of testamentary scripts[11]. In that case, the plaintiff sought to propound a will of her late husband, which was challenged by the defendant.  It can be seen from the judgment of the case that at a direction hearing on 11 August 2009 Lam J noted that neither party had complied with O 76 r 5, and he therefore ordered the parties to do so.   At the time of the order, it was some 5 years after the commencement of the probate action, and the defence had already been filed[12].

36.  Although the issue of court’s power was not raised by either side in Lam Ping,Lam J did not consider that he had no power  to order the parties to file the affidavits of scripts, or that his power was in any way limited,  after the defence had been filed.

37.  It has been noted in paragraph 76/5/1 of HKCP that O 76 r 5 is frequently ignored in Hong Kong.  This is further noted in paragraph 7  in our Practice Direction 20.2 where practitioners are reminded of the requirements under O 76 r 5,  and it is stated therein that non-compliance may result in delay and the court may make an adverse costs order against the defaulting party.  Again, there is nothing there to indicate that the court has no power to grant any extension of time in case of non-compliance, or that its power is limited in any way after a defence has been filed or after close of pleadings.

38.  Further, this court generally has power to extend time under O 3 r 5 of RHC, and also under O 1B r 1(2) (a).

39.  Having considered the above, I am of the view that the Master, or this court has a general power to grant an extension of time for compliance with O 76 r 5 of RHC, which is not limited by the mere fact that a defence has already been filed, or the mere fact that pleadings have been closed.

Whether there was a fundamental irregularity in the present case

40.  Although Mr Li accepted that a default in complying with time is only an irregularity, and shall not nullify any proceedings, he submitted that in the present case the irregularity was of a fundamental nature and he had referred to O 2 r 1 of RHC.

41.  So far as I could see, this issue was not raised before Master Levy either.

42.  The purpose of O 2 r 1 of RHC is to abolish the distinction between non-compliance with procedural rules which renders proceedings a nullity and non-compliance which merely renders proceedings irregular[13].

43.  Paragraphs 2/1/1 and 2/1/2 of the HKCP set out a number of cases where the courts had considered whether there had been irregularity of a fundamental nature as to be incurable.  As stated therein, “The authorities, taken as a whole, show that O2 r1 should be applied liberally in order, so far as is reasonable and proper, to prevent injustice being caused to one party by mindless adherence to technicalities in the rules of procedure[14].”

44.  D’s Counsel Mr Lam submitted that whether a particular irregularity was curable or not is a fact-sensitive question.

45.  In the present case, at the time when the writ was issued and at the time when D acknowledged service and filed his defence, D was acting in person.  Once Ps filed their affidavit, under O 76 r 5(4) they became entitled to inspect and take copies of D’s affidavit.  This meant that from 21 April 2010 onwards, Ps could have asked for a copy of D’s affidavit should they feel they needed to have read that before finalizing their pleadings.

46.  Also, what Ps could have done was to seek an extension of time before filing their statement of claim.  This would be a similar situation as when a plaintiff in a probate action files a writ endorsed with a statement of claim but fails to file his affidavit of testamentary scripts, as stated in para 76/7/1 of HKCP, in such a case, the defendant should seek an extension of time for service of defence until r 5 has been complied with and such application, as further in paragraph 10 of Practice Direction 20.2, should be made as expeditiously as the circumstances of the case permits.

47.  Ps nevertheless went ahead to file their statement of claim on 12 May 2010, and even filed their Reply and Defence to Counterclaim on 22 November 2010, without raising the issue, or asking D for a copy of his affidavit of scripts.

48.  D’s failure to file his affidavit was raised for the first time by Ps in a letter dated 4 October 2013 from their solicitors to D’s solicitors[15].

49.  At the time of this letter, the main dispute between the parties was that the original of the 4^th Will should have been lodged under the Probate Action, but instead had remained with the Probate Registry under the Grant Application.

50.  Ps’ above letter went on to state, among other things, the following :

“Furthermore, pursuant to Order 76 rule 5, your client must file an affidavit and the testamentary script referred to therein must be lodged to the Registry. It was a mistake on the part of your client (who acted in person previously) in not complying with this particular order of the Rules of the High Court …

In the circumstances both your client and yourselves are requested to rectify the mistake without further delay.”

51.  Thus, at that time Ps were asking D to rectify the mistake. D’s solicitors responded by saying that they were instructed to prepare D’s affirmation to state that the original of the 4^th Will had been kept in the Probate Registry, but the proposal was not accepted by Ps who were of the view that D would not have complied with O 76 r 5 by this proposal.

52.  Ps’ solicitors then sent a letter dated 4 November 2013[16]. In this letter, what Ps’ solicitors had stated, among other things, was that both their clients and themselves believed that there was a good chance that the court would dismiss D’s entire case pursuant to O 2 of RHC when D applied for extension of time to file his affidavit of testamentary script.  What Ps did not make clear in this letter was whether Ps would consent to the extension of time.

53.  This resulted in D issuing a time summons and filing his 5^th affirmation in support thereof.  In D’s 5^th affirmation, he had exhibited a copy of the 4^th Affirmation affirmed on 25 October 2013.  Ps did not file any affirmation in opposition.  The hearing of D’s time summons was fixed for 3 minutes before Master Levy on 14 November 2013.

54.  Ps had instructed Counsel to attend this hearing.  Master Levy was fully aware that the Probate Action had been ongoing for at least 3 years and pleadings had all been filed. Ps’ grounds for opposition to D’s time summons was  that (i) a true copy of the 4^th Will had not been filed under the Probate Action (ii) delay and non-compliance of O 76 r 5  (iii) serious prejudice to Ps right to a fair trial (iv) matter should be referred to a judge for determination[17].

55.  The only evidence before the Master at the hearing in relation to D’s time summons was D’s 5^th affirmation exhibiting copies of the correspondence between solicitors and a copy of the sworn 4^th Affirmation.  There was no affirmation filed by Ps  to oppose D’s time summons prior to the hearing before the Master.  P2’s 4^th affirmation was filed after the Order and in support of Ps’ Striking Out Summons. 

56.  There was also no application from Ps, nor D, for leave to adduce any new evidence by way of their subsequent affirmations for the purpose of the Appeal, nor was there any such agreement.  The only relevant documents were those contained in the Appeal Bundle C placed before this court.  Even though the hearing of the Appeal before this court was a re-hearing, the re-hearing was thus based on the evidence then placed before Master Levy.

57.  To summarise, there was no sufficient evidence before Master Levy as to what effect the time extension would have on Ps, what prejudice Ps would suffer, or any evidence as to why they could not be compensated by a costs order, or what “serious consequences” there would be, as submitted by their then Counsel.

58.  It was pointed out by the Master that Ps themselves had not taken any step to compel D to comply with his obligations under O 76 r 5. What is clear to this court is that the Ps were able to plead their case and conduct this litigation for some 3 years without having read D’s affidavit of testamentary scripts.

59.  As mentioned earlier, there was no dispute about the validity and due execution of 3^rd Will or the earlier wills which had been superseded.  The main issue in the Probate Action was only in relation to the 4^th Will, its due execution, and the testamentary capacity of the Deceased at the time of execution.  Although a true copy or original of the 4^th Will was not filed under the Probate Action and was thus not stored with the Registrar in the Probate Action, it had in fact been filed into the Probate Registry on 24 September 2009 under the Grant Application, even before Ps had issued the Probate Action, and had been kept there since.

60.  One of Ps’ concerns was about new wills being discovered, but as pointed out by Mr Lam, even if D had complied with O 76 r 5(1) in full back in April 2010, the same issue could exist.  If D were to find a new will after the filing of his affidavit, he would be obliged to file a supplemental affidavit.  The same would also apply to Ps had they been able to find another will after their affidavit of testamentary scripts had been filed.

61.  As mentioned earlier, in Lam Ping, the non-compliance with O 76 r 5 had been in existence for 5 years or more, and yet the order for filing was given.

62.  Having considered all the above, I am of the view that the irregularity in the present case was not a fundamental irregularity which was incapable of being cured.

63.  Mr Li had also submitted that this court should set aside D’s defence and counterclaim as a result of irregularity under O 2 r 1(2).

64.  In fact, there was no summons issued by Ps before Master Levy to set aside D’s defence and counterclaim under O 2 r 2, nor was there any one before this court.  The Appeal was only in relation to the Order for extension of time.

65.  Mr Lam submitted that under O 2 r 2(1) an application to set aside anything for irregularity could only be made “within a reasonable time” and “before the party applying has taken any fresh step after becoming aware of the irregularity”, and in the present case, there had been “fresh steps” taken after Ps had become aware of the irregularity, in that witness statements had been exchanged.

66.  Mr Li responded by saying that the witness statements were exchanged pursuant to an earlier order of Master Lung made on 24 May 2013 and that performance of a court order could not be considered an unequivocal waiver of Ps’ right to raise objection.

67.  Ps had had a copy of D’s 4^th Affirmation for some time prior to the exchange of witness statements on 21 November 2013.  Mr Li had admitted that Ps knew that the 4^th Affirmation was not complete at the time of the exchange of the witness statements.  Although Master Lung’s order was made earlier, under paragraph 1h of that order, Ps could have applied for an extension of time to exchange witness statements, ie until such time D had complied with O 76 r 5, if they had thought that they would suffer prejudice and damage had the exchange.  Yet they chose not to.

68.  Ps’ decision to proceed to exchange witness statements was   clearly with knowledge that the 4^th Affirmation was not complete or insufficient.  As stated in paragraph 2/2/3 of HKCP, steps taken with knowledge of an irregularity with a view to defending the case on the merits will waive irregularities.  Mr Lam submitted that the exchange of witness statements by Ps was done with a view to defend D’s counterclaim on the merits, and would thus constitute a “fresh step”. I accept his submissions.

69.  In any event, the exchange of witness statement was in fact a matter which took place after the Order.

70.  As I have come to the view that the irregularity was not of a fundamental nature, nor incurable, nor of any serious or drastic consequences, I see no reason as to why D’s defence and counterclaim should be set aside.

Whether an extension of time should have been granted

71.  In relation to legal principles on time extension applications, Mr Lam had referred this court to the Court of Appeal decision in The Decurion [2012] HKLRD 1063, where Cheung JA had said :

“(1) It is clear that the applicable principle in deciding whether time should be extended is to look at all relevant matters and consider the overall justice of the case. A rigid mechanistic approach is not appropriate… There are two conflicting principles at play. First, a party being required to observe the procedural rules, the default of which may result in judgment being entered against it. Second, a party should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to the other party which cannot be compensated by costs. These two principles are not absolute. A rigid application of the first principle may lead to dismissal of actions without consideration of whether the defendant has been prejudiced by the default. But, the Court has treated the existence of such prejudice to be crucial and often decisive. Likewise a rigid application of the second principle without exception may enable a wealthy litigant to flout the rules. The resolution to these two conflicting principles is to consider all the circumstances of the case and not confine the decision to the application of a universally applicable rule of thumb: see Costellow v Somerset County Council [1993] 1 WLR 256, 263 (Sir Thomas Bingham MR).

(2) I do not consider this approach has been drastically changed by the introduction of the Civil Justice Reform in Hong Kong since 2 April 2009. An expeditious disposal of a case has to be considered together with the equally salutary objective of ensuring fairness between the parties[18].”

72.  D had explained his reasons for the delay in his 5^th affirmation.  D said at the time when he lodged the acknowledgment of service of the writ, and at all material times, he was acting in person.  He said he was not aware at the time that he had to make affirmation of testamentary script within 14 days after he lodged his acknowledgment of service.  He was only made aware of the requirement under O 76 r 5 when his solicitors received Ps’ letter dated 4 October 2013.  He then said he had proposed through his solicitors that the parties should jointly apply for an order from Master Levy for the release of the original of the 4^th Will from the Probate Registry to Ps’ solicitors for examination by their handwriting expert[19], but his proposal was not accepted by Ps.

73.  D had further stated in his 5^th affirmation that the late filing of his affirmation of testamentary script did not prejudice Ps’ position.  As mentioned earlier, there was no sufficient evidence from Ps at the hearing before the Master as to what prejudice they would suffer.  There was also no sufficient evidence of any damage caused to the Ps.

74.  Further, as mentioned earlier, the main dispute between the parties in the Probate Action was over the validity and due execution of the 4^th Will, and the matter which led to Ps raising the issue of D’s failure to file the Rule 5 Affidavit at that time was the inspection of the original of the 4^th Will by Ps’ handwriting expert.  In accordance with an earlier order of Master Levy made on 25 July 2013, the original was to be released to Ps’ solicitors for the expert’s inspection, and the parties subsequently jointly attended the Probate Registry to collect the original, when it was then discovered that the original was not filed under the Probate Action, but under the Grant Application instead.  One thing then led to another.

75.  So far as delay in the Probate Action was concerned, although D’s proposal in his solicitors’ letter of 23 October 2013 would not have relieved D from all his obligations under O 75 r 5, it would have at least solved the then immediate problem of inspection by expert, and, after inspection, would have resulted in the original 4^th Will being returned to the court and filed under the Probate Action.  It seems to me D’s then proposal was a practical one and should have been accepted by Ps.

76.  Anyway, there was no sufficient evidence before Master Levy, or before this court, that D’s failure to comply with O 76 r 5 was intentional.  I have also said earlier that there was no sufficient evidence before Master Levy as to prejudice or any serious consequences.

77.  Having considered all the above, I see no reason to make a different order from Master Levy.  I would just add, that even if new evidence, namely all the subsequent affirmations filed by the parties in connection with the Striking Out Summons and the Leave Summons were to be adduced for the Appeal, in light of what I have said hereinafter in this judgment, such  would not have affected my decision for the Appeal.

Unless Order

78.  As to whether Master Levy should have made an “Unless Order”, Mr Li admitted that Ps never sought an “Unless Order” at the time of the hearing before the Master. Having said this, it was not disputed that the Master had a discretion to make such an order had she thought appropriate.  Further, Mr Li submitted that as the hearing before this court was a re-hearing, this court could make such an order on the Appeal.

79.  Whether to allow the extension of time was a matter within the discretion of the Master.  I see no reason to interfere with her decision now.  Further, this seems to be now academic as D’s 4th Affirmation, and 7^th Affirmation, had both been filed.

Conclusion

80.  For all the above reasons, I dismiss Ps’ Appeal.

Leave Summons

81.  One day prior to the hearing of Ps’ Striking Out Summons, D filed his 7^th affirmation, said to be a supplemental affidavit of testamentary scripts (“7^th Affirmation”).

82.  At the time of the hearing, Ps and Mr Li had read the 7^th Affirmation. There was no specific objection taken by Mr Li to D’s filing of the 7^th Affirmation, his objection being a general one that the court had no power to extend time for the filing of any affidavit of testamentary scripts. In fact, Mr Li pointed out that all along D had denied he was still in breach of O 76 r 5 after filing the 4^th Affirmation, and submitted that notwithstanding the filing of the 7^th Affirmation, the defect was still not cured.   Mr Li then said it was only after filing of the 7^th Affirmation that Ps learnt of the existence of there being instructions and drafts in relation to the 4^th Will.

83.  It was during the hearing on 24 March 2014 for the Appeal that the question of whether D should have applied for leave before filing the 7^th Affirmation came up. Mr Li then objected to D’s filing of the 7^th Affirmation, and one of his grounds was that D had not issued a proper summons for extension of time. This then led to the Leave Summons being issued by D before the resumed hearing on 2 May 2014.

84.  D filed his 8^th affirmation in support of his Leave Summons.  He explained that it was only on 14 March 2014 that he realized there was a standard form prescribed in the UK PD 57 which he could have used.  He said although he had for some years been a solicitor in Hong Kong until his recent retirement, he had never practised in UK.  Further, his solicitor had informed him that he was also unaware of the UK form.

85.  P2 responded in his 6^th affirmation by pointing out that D was a practicing solicitor from 1978 to 2012 when he retired.  Further, as D had chosen to act in person in the beginning of these proceedings, he must have confidence that he had sufficient legal knowledge to have conduct of these proceedings without the assistance of others, and it was also surprising that his solicitor also did not have enough legal knowledge to remind D what should be done.

86.  The form initially referred to by Mr Li in his 1^st skeleton submissions was the Chancery Masters’ Practice Form No 37, The Supreme Court Practice 1999 Vol 1B-238[20].  In fact, there is a similar specified form in the UK PD 57 (“UK Specified Form”).  The UK Specified Form has never been adopted in Hong Kong.  There is further no requirement or provision in our Practice Direction 20.2 that the UK Specified Form is to be adopted.  It is thus not mandatory for Hong Kong practitioners to use that form although it serves as a good guidance as to what an affidavit of testamentary scripts should contain.

87.  As earlier mentioned, in Hong Kong the requirements in O 76 r 5 are often ignored.  There is no sufficient evidence that the UK Specified Form is commonly used by probate practitioners here.  Further, there is no evidence as to what area/s of practice D was involved in before he retired.  Anyway, I accept D’s explanation that neither he nor his solicitor was aware of the UK Specified Form until they read Mr Li’s submissions.

88.  It has however been stated in paragraph 76/5/1 of the HKCP that unlike an affidavit of documents under O 24, the affidavit of scripts should not merely specify the scripts in the possession, custody, or power of the deponent, but all scripts of which he has knowledge (even if he does not accept that they constitute valid wills), and the deponent must lodge in the Registry all the scripts in his possession or under his control. Scripts which are not in the possession or control of any party will have to be the subject of an order or a subpoena to bring in scripts under O 76 r 13, unless arrangements can be made for them to be brought in voluntarily.  The scripts then remain in the relevant office until the final conclusion of the action.

89.  It is further clear from O 76 r 5(5) that “testamentary script” includes not simply the will, but a draft thereof and also all written instructions for a will made by or at the request of under the instructions of the testator and any document purporting to be evidence of the contents thereof.

90.  Leaving aside the issue of  the original 4^th Will being filed under the Grant Application instead of the Probate Action, in my view, the 4^th Affirmation was still insufficient as D did not depose to all testamentary scripts of which he had knowledge of.

91.  D explained that he had understood that he could file a supplemental affidavit of testamentary scripts voluntarily, and his aim, in making the Leave Summons to file the 7^th Affirmation was to have all potential rooms for arguments on any peripheral or technical matters removed.  He apologized for his delay and was willing to pay Ps’ costs.

92.  That D could file a supplemental affidavit was based on what was stated in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20^th Ed, 2013)[21] referred to this court by Mr Lam.

93.  Mr Li had submitted that what was said by Williams, Mortimer and Sunnucks was taken out of context as it was referring to the UK position where such affidavits would have to be filed at the outset, and a party could then later file a supplemental affidavit voluntarily if this prerequisite had not been complied with.

94.  As it was Ps who were relying and referring to the UK practice in support of their submissions, I do not see why D could not similarly do so.

95.  Having said this, in the present case, the Order stated clearly that D had to comply with O 76 r 5 within 7 days.  The matters deposed in the 7^th Affirmation were not new matters after the Order.  D should have included those matters in the 4^th Affirmation.  As the 7^th Affirmation was filed by D to comply with O 76 r 5, he should have filed it within 7 days of the Order.  I am therefore of the view that D ought to have sought leave for the filing of the same out of time.

96.  In opposition to the Leave Summons, Mr Li adopted generally his submissions in relation to the Appeal, namely that D’s Leave Summons should be dismissed as (i) the default was so fundamental that it could not be cured (ii) the prejudice and damage caused to Ps could not be compensated by costs.

97.  The case The Decurion has set out a useful summary of the court’s approach to balancing on the one hand the need for parties to observe procedural time limits and on the other, consideration of whether a party’s default could be compensated by an order for costs.

98.  A copy of the 4^th Affirmation was exhibited and produced during the hearing before the Master, and there was no complaint from Ps’ then Counsel at the hearing before the Master that the 4^th Affirmation was not in accordance with the UK Specified Form or insufficient in any way.

99.  P2 filed his 6^th affidavit in opposition to D’s 8^th affirmation to object to the Leave Summons.  So far from what I could gather, the main prejudice and damage alleged by  Ps seemed to be:

(i)   D’s case had been tainted with the risk of “tailoring” his own evidence after having seen the pleadings, Ps’ evidence and the witness statements of the 2 solicitors, Mr Yeung and Mr Lau, who were involved in the drafting of the 4^th Will and who were witnesses to the Deceased’s execution of the 4^th Will.  

(ii)   The case had to be adjourned and delayed for a substantial period.

100.  The witness statements of the two solicitors were in fact dated 13 November 2012.  I understand that those witness statements were sent to the parties at the time by the two solicitors,  although the formal exchange of P1’s and D’s witness statements only took place on about 21 November 2013.

101.  In any event, as I have said earlier, it was open to Ps to apply for extension of time for the exchange since by that time, Ps had had sight of the 4^th Affirmation for some time, and they knew at that time that the 4^th Affirmation was not a complete or a sufficient affidavit of testamentary scripts.  They had also read the 7^th Affirmation prior to the hearing for the Striking Out Summons, and Mr Li took the view that the 7^th Affirmation would not affect Ps’ Striking Out Summons.

102.  Ps would have seen the two solicitors’ witness statements and would have known from those witness statements that there had been faxed instructions and drafts in relation to the 4^th Will.  The 7^th Affirmation did not reveal anything new or surprising in relation to the 4^th Will, as Mr Li seemed to be submitting.

103.  As for adjournment or delay, this action was commenced over 4 years ago.  There had been numerous applications including an application by Ps for O 14 judgment, which ended with an appeal to the Court of Appeal.  Ps only took out a case management summons on 28 September 2012, about 2½ years after the issue of the writ.  The 1^st CMC eventually took place on 24 May 2013, more than 3 years after the commencement of the action.  At this time, D’s failure to comply with O 76 r 5 had not yet been discovered by P.  Thus, the adjournment of the 1^st CMC hearing to the 2^nd CMC on 25 November 2013 was due to other matters, such as the inspection by the handwriting expect rather then D’s failure to comply with O 76 r 5.

104.  Subsequently, the 2^nd CMC was further adjourned to the 3^rd CMC on 2 December 2013, and later to the 4^th CMC on 23 December 2013, which was then adjourned due to Ps’ Appeal and the Striking Out Summons.  Any delay caused by the filing of the 7^th Affirmation, or any prejudice resulting thereof has to be viewed against the background of how this litigation had been conducted since commencement, which in my view, seemed to be due more to the litigious and uncompromising attitude of both sides

105.  Having considered P2’s 6^th affirmation, I find there was no sufficient evidence therein that there was prejudice or damage to Ps which could not be compensated by costs.  On the other hand, one of the grounds for Ps’ Striking Out Summons was  D’s  alleged “contumelious failure” to observe the requirements set out in O 76 r 5, and not allowing him to file the 7^th Affirmation could cause serious prejudice to him.  Having considered the interests of the administration of justice, the effect which the failure to comply would have on each party and the effect which the granting relief would have on each party, I am prepared to grant D retrospective leave to file the 7^th Affirmation.

The Striking Out Summons

106.  The Striking Out Summons was issued by Ps under O 2 r 1, O 18 r 19, O 33 r 3 & 4, O 76 of RHC and the inherent jurisdiction of the court.  In brief, it sought , among other things, the following:

(i)   The amended defence and counterclaim dated 27 June 2013 (“ADC”) be struck out either wholly or in part;

(ii)   Alternatively, the ADC be dismissed for want of prosecution;

(iii)   Alternatively, if the court decides not to strike out or dismiss the ADC, an order that D has the burden of proof in respect of the due execution of the 4^th Will, and both physical and mental capacity of the Deceased at the time of the execution of the 4^th Will.

107.  The grounds Ps relied on for striking out the ADC  were:

(i)   It would prejudice, embarrass or delay the fair trial of the action;

(ii)   It was an abuse of the process of the court;

(iii)   For want of prosecution;

(iv)   Contumelious default.

108.  In particular, Ps relied on the following defaults and inactions of D :

(i)   D’s contumelious failure to observe the requirements set down in O 76 r 5 of RHC;

(ii)   D had failed to prosecute his case with due dispatch, in that D had failed to produce any evidence to prove the due execution by the Deceased of the 4^th Will and the physical and mental capacity of the Deceased at the time of execution.

109.  Further, Mr Li submitted D’s “contumelious failure” was :

(i)   D’s failure to file his affidavit of testamentary scripts on or before 26 April 2010;

(ii)   Notwithstanding obtaining leave, the 4^th Affirmation did not meet the requirements under O 76 r 5 in that (i) D did not depose as to whether any other testamentary scripts existed or not, and (ii) he had not exhibited the original of the 4^th Will in his affirmation or lodged the same with the court for filing;

(iii)   Although the original of 4^th Will had been transferred directly to the present Probate Action from the Grant Application on 12 December 2013, D still had  failed to (i) disclose other testamentary scripts, if any ; and (ii) rectify his affirmation by exhibiting the original of the 4^th Will.

110.  Mr Li further submitted that D’s deliberate and wilful disregard of the rules and the Order was clearly intentional and contumelious, and his conduct had further caused embarrassment, prejudice and/or delay the fair trial of the action or otherwise an abuse of the court.

111.  P2’s 4^th affirmation filed in support of the Striking Out Summons referred to roughly two periods of time, namely:

(i)   From commencement of action in March 2010 until close of pleadings deemed to be on 22 November 2010;

(ii)   From joint attendance of solicitors for both parties at the Registry on 17 September 2013 to try and carry out the order of Master Levy of 25 July 2013 until 23 December 2013.

112.  There was no sufficient evidence in P2’s above affirmation of any conduct or inaction on D’s part, if any, during the period of almost 3 years between November 2010 and September 2013, save that generally D had failed to file his affidavit of testamentary scripts during all that period.  In fact, as I had mentioned earlier, during that period, there had been numerous interlocutory applications and also an appeal to the Court of Appeal.

113.  It was only in P2’s 5^th affirmation in reply to D’s 6^th affirmation in opposition that P2 made some further allegations.

114.  P2 had continued to question in his 5^th affirmation whether D had complied with O 76 r 5 as the original 4^th Will had not been exhibited in the 4^th Affirmation[22].

115.  In fact, O 76 r 5(2) only provides that any testamentary script referred to in the affidavit in the possession or under the control of the deponent must be lodged in the Registry.  There is no requirement that the original of the 4^th Will had to be exhibited or annexed to the affidavit. Paragraph 76/5/2 of HKCP in fact states that “It must be noted that the scripts are to be described in the affidavit and not exhibited.  They should not be marked in any way.”  Ps’ interpretation of this rule was clearly not correct.

116.  What had been exhibited in the 4^th Affirmation by D was a copy of the 4^th Will and D had explained therein the whereabouts of the original, namely with the Probate Registry under the Grant Application.  Anyway, this issue should have been closed latest by 12 December 2013 when the original had been ordered by Master Levy to be transferred from the Grant Application to the Probate Action instead.

117.  Ps took out the Striking Out Summons about two weeks after the Order.  As I have said, the main area of complaint in P2’s supporting affirmation seemed to be over D’s failure to exhibit or lodge the original under the Probate Action.  Anyway, it was only when Mr Li lodged his skeleton submissions that it became clearer that Ps were also complaining of other areas of insufficiencies of the 4^th Affirmation and reference was  made to the UK Specified Form.

118.  D had explained as to why the 4^th Affirmation and the 7^th Affirmation had been filed late.  I find his explanations reasonable. Although as mentioned earlier, I accept that there were insufficiencies in the 4^th Affirmation, I am unable to find sufficient evidence to support Ps’ allegations of D’s “intentional” or “contumelious” failure of comply with the Order.  There was further no evidence of any of D’s intentional or contumelious non-compliance of  any other court orders.

119.  It is trite that a pleading should only be struck out “in plain and obvious cases” and that “if the court does not think the matter to be clear beyond doubt… there should be no striking out”[23].  Further, in striking out applications, disputed facts are to be taken in favour of the party whose pleading is sought to be struck out[24].

120.  Having considered the evidence, I am not satisfied that there had been contumelious failure on D’s part to observe the requirements in O 76 r 5, or any contumelious default or non-compliance of the Order or any other orders.

121.  There was no sufficient evidence that the ADC might prejudice, embarrass or delay the fair trial of the action, or otherwise an abuse of the process of the court.

122.  Ps had further sought an order that the ADC be dismissed for want of prosecution.  Their complaints of D’s inactions or delays or failure to prosecute his case were :

(i)   D’s delay in producing any medical evidence in relation to the testamentary capacity (physical and/or mental) of the Deceased;

(ii)   D had delayed in procuring evidence from his own hand writing expert;

(iii)   D had delayed in filing his witness statement;

(iv)   D issued  unmeritorious applications, including striking out Ps’ claim on 21 August 2012, and an application for maintenance;

(v)   D brought actions on behalf of his daughter Sarah and his son Wilson for maintenance and distribution of the estate against the administrator pendente lite, by acting as their solicitors.

123.  In D’s 6^th affirmation, D had in fact said the present action was “derailed” by Ps’ application for summary judgment and the subsequent appeal to the Court of Appeal, and pointed out Ps only took out the case management summons only at end of September 2012. Ps took out their application for summary judgment at end of January 2011 and the hearing before To J took place on 5 May 2011, and the decision was handed down on 14 July 2011.  The appeal to the Court of Appeal was on 14 February 2012, and the judgment was handed down on 28 February 2012. Thus, the delay to the progress of the action for that year would be due mainly to this application and the appeal, although it seemed later in August 2012, D also seemed to have issued an application to strike out Ps’ claim.

124.  The delay, if any, caused by D’s striking out application did not seem to be as long as P’s application for summary judgment, since, as mentioned earlier, Ps took out the case management summons on 28 September 2012.  Leave for the parties to adduce handwriting expert was later made at the 1^st CMC hearing on 24 May 2013 by Master Lung.

125.  D had explained that the main difficulty with his not having sent off his instructions to his medical expert and his handwriting expert earlier was that he did not have a lot of cash.

126.  As for any delay in exchanging witness statements, Master Lung’s order  stated that this should take place within 60 days of his order, which meant around 24 July 2013.  I note that P1’s statement was dated 8 August 2013, which meant that hers was a bit late as well, although I accept D’s was dated 20 November 2013.  This was the period when the parties were arguing about the release of the original of the 4^th Will for inspection, which led to D’s time summons to comply with O 76 r 5.  The exchange eventually took place on 21 November 2013 and the delay was not serious in light of the background.   

127.  In any event, there had been no applications by Ps for any “Unless Order” for the compliance of any part/s of Master Lung’s order.

128.  As for other “unmeritorious applications”, I am not clear as to how these would cause delay to the present action.

129.  Ps were also seeking an order summarily pronouncing, without any trial, (a) in favour of the 3^rd Will; and (b) against the 4^th Will.   As pointed out by Mr Lam, Ps seemed to be in substance again asking for a summary judgment against D.  In this respect, although To J only granted D conditional leave to defend, on  appeal, this was overturned by the Court of Appeal and D was granted unconditional leave to defend on 28 February 2012[25].

130.  As stated in paragraph 76/8/1 of HKCP, and also by Cheung JA in the above appeal:

“16. Order 76 sets out the procedure for a contentious probate action. The defendant had served a counterclaim as required by Order 76, rule 8 propounding the 2008 will. A probate action being of the nature of an action in rem and the court’s function being inquisitorial (Re Fuld (No. 2) [1965] 2 All E.R. 657) the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (Order 62, rule 4) but in other cases he must set up a positive case by way of counterclaim. For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim. It would rarely be appropriate for a probate action to be dismissed for want of prosecution[26].”

131.  D’s 6^th affirmation showed that he had been prosecuting his counterclaim, and was keen to push this matter forward to a speedy trial as soon as possible[27].

132.  I do not find that there had been sufficient evidence of inactions, delays or failure to prosecute the case on D’s part as alleged by Ps, and I see no reason as to why the ADC should be dismissed for want of prosecution.

133.  In the Striking Out Summons, Ps also sought alternatively, an order that D has the burden of proof in respect of (i) due execution of the 4^th Will; and (ii) both physical and mental capacity of the Deceased at the time of the execution of the 4^th Will, in the event this court decides not to strike out or dismiss the D & C.

134.  In relation to this matter, Mr Lam had referred this court to the following passage in Williams, Mortimer and Sunnuckson Executors, Administrators and Probate (20^th Edition, 2013):

“Although those propounding the will must satisfy the court that the testator was of sound disposing mind, yet if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent. Slight evidence of mental incapacity will not disturb this presumption…

It has therefore, been said that the burden of proving unsoundness of mind lies on those who allege it…  The burden of proof may shift from one party to another in the course of a case…  it is not the law that in all cases of doubtful capacity there has to be positive proof of capacity before the court can pronounce for the will[28].”

135.  Mr Li had on the other hand referred this court to Nina Kung v Wang Din Shin FACV 12/2004 (CFA).  As said by Ribeiro PJ therein, a propounder of a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased. The standard of proof is the balance of probabilities, and this means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that (a) there was due execution of the will; (b) the testator was of testamentary capacity; and (c) the testator knew and approved of the contents of the will[29].  Further, when someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue[30] .

136.  What Ribeiro LJ said in Nina Kung is clearly binding on this court, and no doubt D, and his legal team, should be aware of the principles set out in that case.  I am of the view that it is not necessary for this court to make any such order as sought by Ps.

137.  Mr Li had referred to what was said by To J in his decision in relation to Ps’ application for summary judgment and submitted that To J had already made a finding that Ps had already discharged their evidential burden of proof in relation to the lack of mental capacity of the Deceased[31] and that this finding had not been disturbed by the subsequent Court of Appeal decision.

138.  However, Cheung JA had said that it was necessary to examine the quality of those medical reports produced by Ps.  Cheung JA further went on to say that in order to properly adjudicate the issue of testamentary capacity, the court must satisfy itself with the severity of the dementia and the Deceased’s mind when he executed the 4^th Will[32].

139.  In my view, whether D will be able to discharge the legal burden on him is a matter for the trial judge.  I do not consider that at this stage this court should make any direction or order as sought by Ps.

Orders

140.  In view of what I have said above, I order as follows:

(i) Ps’ Appeal be dismissed;

(ii) D’s Leave Summons be allowed;

(iii) Ps’ Striking Out Summons be dismissed;

141.  As for costs, I order Ps to pay D’s costs of the Appeal and the Striking Out Summons.  As for D’s Leave Summons, I order D to pay Ps’ costs of that summons.  All costs to be taxed and paid forthwith. These are costs order nisi which shall be final after 21 days.

[1] Paras 65-66, D’s witness statement, B:232; see also para 7, D:90

[2] Para 5, D: 89; see also D:121-122

[3] D:116-119

[4] Para 58/1/2, pg 1024, Hong Kong Civil Procedure 2014, Vol 1

[5] From C:74 line E to C:76 Line O

[6] Para 32, Ps’ skeleton submissions 29.04.14

[7] Line R, C:75

[8] Line F, C:74

[9] at pg 1348,  Hong Kong Civil Procedure 2014, Vol 1

[10] Para 32, Ps’ skeleton submissions dd 29.04.14

[11] per Lam J, as he then was, at para 7, pg 3

[12] See para 23, pg 8

[13]  See para 2/1/1, pg 48, and also at para 2/1/2, pg 49, Hong Kong Civil Procedure

[14] At pg 50, para 2/1/2, Hong Kong Civil Procedure

[15] A: 166

[16] A: 162

[17] Ps’ Submissions dd 14.11.13, C: 79-81

[18] At para 11, pgs 1067-1068

[19] C:64

[20] Para 17, P’s skeleton submissions 14.03.14

[21] Paras 35-05 at pg 522

[22] Para 11, A:142

[23] Para 18/19/4, Hong Kong Civil Procedure

[24] Para 18/19/4, Hong Kong Civil Procedure

[25] A:8299

[26] Para 16, at pg 156

[27] At para 41, A:138

[28] At pg 200

[29] At paras171-173

[30] At para 176

[31] Para 33, A:55

[32] Paras 34-36, A:92-94