MARIE FONG YEE v. LILLY FONG YEE AND OTHERS

IN THE COURT OF APPEAL

1996, No. 161
(Civil)

-------------------

----------------------

J U D G M E N T

-----------------------

Liu, J.A.:

1. I do not believe I need call upon you, Mr Barlow.

2. The appellant is a daughter of a family to which the applicant for security for costs belongs.

3. The parties to these proceedings sought construction of a will before Mr Justice Patrick Chan. The point is relatively simple but the questions involved are fraught with difficulty. This view was expressed by the judge in his judgment and is not sought to be differed from by counsel for the applicant. The judge decided against the applicant on the point as to whether the power of appointment could be validly exercised by the appellant's mother in her will.

4. The appellant feels aggrieved and she has a right to appeal. Indeed, she has filed her notice of motion. The appellant is resident outside Hong Kong. I am told to-day that she is residing, for part of the year, in Jamaica and the rest of the year in Canada. The appellant had been asked to provide security for costs but she refused the request made on behalf of the applicant. It is not seriously doubted that parties, the applicant and the appellant are both persons of means. Counsel for the applicant strongly urges upon this Court that there is no justification for the appellant to refuse to pay in security for costs to ensure prompt and successful execution of any costs that may be awarded against her in the appeal. I have read counsel's written submissions and to both counsel I am greatly indebted.

5. First of all, construction sought from the judge and will be canvassed before the Court of Appeal is not without difficulties. It is also common ground that the estate is large. The houses in Hong Kong must be exceedingly valuable in the property market to-day. The parties are all members of the same family. To all, those who won and those who failed before Mr Justice Patrick Chan, it is, at least, morally desirable that the interpretation given by the Judge should receive a second confirmatory opinion. They are members of the same family, who are not persons without means. Whether or not costs are recoverable seems to be a matter of no great moment. I would say no more than this: the application and the resistance seem to be unusual. The point is within a very short compass, and costs for the appeal is not expected to be unduly heavy. The appellant's own share of the estate, in her claim, is one half. It is a very important and serious matter, both morally and financially, for every member of the family. In the bottom of their heart, even the presently victorious parties must wish to satisfy themselves that their sister has not been wrongly ousted. The situation is such that if security for costs were ordered, this Court would be left with an uncomfortable feeling that justice may not have been done. It is not so much a question of dollars and cents nor a question of ability to pay. The case seems to be highly charged with emotions. The parties should proceed without more antagonism. A second confirmatory opinion is clearly justified and that would benefit all. Also there would seem to be little real need for costs to be secured.

6. It is a small consideration to be taken into consideration in this application but, nevertheless, a consideration that cost before Mr Justice Patrick Chan were agreed on all hands to be paid out of the estate and on virtually an indemnity basis, trustee basis for the trustee and a comparable basis for the parties who were not trustees. Mr Chan has been very persistent in advancing his client's case, but in the end in the exercise of my discretion, I would not be prepared in these circumstances to accede to counsel's application. The application is, therefore, dismissed and cost of the application, subject to what counsel have to say, be costs in the coming appeal.

(Discussion on costs)

7. Very well, I order (1) that the application be dismissed and (2) that costs of the application to-day be reserved for the Court of Appeal.