YE XIUXIA v. YE JINXIANG AND ANOTHER

HCMP 754/2019

[2021] HKCFI 115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 754 OF 2019

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D E C I S I O N

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1.  This is an application by the 1st and 2nd defendants for retrospective leave to file the 3rd affirmation of the 1st defendant made on 8 December 2020 on the ground, inter alia, that the same is required to reply to the new allegations made in the 3rd affirmation of the plaintiff.

2.  I should immediately point out that the 1st defendant has already filed and served his 2nd affirmation on 18 September 2019 (retrospective leave for which was given on 17 September 2020) in which it was expressly stated that the same was filed in reply to the plaintiff’s 3rd affirmation.  In fact, in the 2nd affirmation of the 1st defendant, there was a paragraph-by-paragraph response to the matters deposed to in the plaintiff’s 3rd affirmation.  In the circumstances, there is simply no basis for the defendants to put in yet another round of affidavit evidence in response to the plaintiff’s 3rd affirmation.

3.  Further, there is no satisfactory explanation for the delay in taking out the application only in December 2020, resulting in the hearing only taking place today, which is barely one month before the substantive hearing of the originating summons.  In particular, there is no explanation from the 1st defendant as to why the 1st defendant could not have applied earlier for special permission from the “Chinese authority”, to come to Hong Kong for the purpose of making the affirmation.

4.  For the foregoing reasons, and as a case management decision, I would dismiss paragraph 1 of the defendants’ summons dated 10 December 2020, and I rule expressly that the defendants shall not be entitled to rely on the 3rd affirmation of the 1st defendant made on 8 December 2020 at the hearing of the originating summons. 

5.  I would, however, grant leave to the defendants to file and serve an affidavit/affirmation by their solicitors limited to the sole purpose of exhibiting what the 1st defendant says is the Final Account of the Deceased’s Estate (namely, exhibit “YE3-3” to the 3rd affirmation of the 1st defendant), and the defendants’ solicitors should do so within 3 days from the date hereof.

6.  I further direct that the plaintiff do have leave to file and serve affidavit evidence in reply within 7 days thereafter. 

7.  There be no further affidavit evidence to be filed without leave of the court.

8.  I shall now hear the parties on the question of costs.

(Ruling on Costs)

9.  This is a case where the costs of the application should be borne by the defendants and on an indemnity basis.

10.  From my ruling, it is clear that the application is completely without merits. Worse still, it was taken out at the eleventh hour before the substantive hearing, listed only for three-minutes, giving the court no choice but to hear the application substantively today.

11.  Further, it is yet another application for retrospective leave for the filing of affidavit evidence, when the defendants ought to have applied for leave before the filing of the affirmation in question. 

12.  These are procedural manoeuvres that amount to abuse of process of the court, which should be visited by an adverse costs order made on the indemnity basis.

13.  Mr Yau submitted that the costs should be apportioned because the defendants obtained leave to file an affirmation limited to the exhibiting of the Final Account.  I do not agree.  The plaintiff is clearly the successful party today and the defendants had never offered to limit the additional evidence to only the Final Account at the hearing of the originating summons.

14.  For the above reasons, I order that:

1)  the defendants do personally pay forthwith to the plaintiff his costs of and occasioned by the summons on the indemnity basis, to be summarily assessed; and

2)  the defendants do personally bear their own costs of the summons and such costs are not to be borne by the Estate.