KWOK SHUK KUEN MARIA AND ANOTHER v. LI WUN AND ANOTHER

HCAP 8/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2011

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DECISION ON LEAVE TO APPEAL

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Introduction

1.  In a judgment handed down on 17 June 2014, judgment was entered in the plaintiffs’ favour; further, the defendants’ counterclaim was dismissed.  Later, in a decision on costs handed down on 19 September 2014, costs were awarded to the plaintiffs.  The abbreviations used in the judgment and decision on costs are also used below.

2.  The defendants have earlier lodged an appeal against the judgment.  Further, they opine that the decision on costs of the passing over summons is also wrong, and make this application seeking leave to appeal against it (the passing over summons was taken out on 16 March 2012).  Directions were given earlier for dealing with the latter, and for the same to be determined “on paper”.  Written submissions were later lodged with court concerning the subject.

Leave to appeal against costs

3.  The relevant legal principles are trite and undisputed: the defendants (as the applicants) have to show a real prospect of success that I have wrongly exercised my discretion as regards costs.

4.  As an overall observation, I agree with the plaintiffs that substantially the defendants’ arguments in this leave application are nothing much more than a “re-run” of the arguments raised earlier.  As such, they do not meet the threshold summarized above.

5.  It is only necessary to specifically mention several of the matters raised in this leave application.

6.  The first is that I have erred in placing undue weight on the letter of 3 September 2010 (para 46 to 50, judgment; para 8, decision on costs).  The defendants contend that they had been kept in the dark concerning the subject will until much later (July 2011): para 8, defendants’ submission for this leave application.

7.  As the plaintiffs correct point out, the above contention conveniently ignores D2’s own testimony (which has been rejected in the judgment) that the defendants had doubts arising from what they discovered “from early on” (which means from May 2010 onwards): para 50, judgment.  The defendants cannot “disown” their own case.

8.  Next is the defendants’ assertion that there is a need to determine the plaintiffs’ suitability as the executors as soon as possible.  This point has been raised earlier, and has been dealt with in the decision on costs (para 28 to 34 thereof (especially para 32)).

9.  There is a related assertion that the passing over summons:

“… would operate as some sort of stay on the powers of administration … ” (para 11(3), defendants’ submissions for this leave application).

Two points arise out of the above.  One, it is implicit in the above assertion the appointment of the administrators pendent lite (on 20 March 2012 (the related summons was taken out on 23 December 2011)) was sufficient to “hold the ring” until judgment.  Two, the lack of merit of an assertion to the effect that a “stay” application could properly be made even before the pronouncement of judgment needs no elaboration (it also needs no elaboration that any “urgency” arising out of a judgment unfavourable to the defendants could be dealt with by way of an urgent application).

10.  Para 10 of the defendants’ submissions for this leave application focuses on the conduct of P2 which is alleged to be inconsistent with his duties and obligations as an executor.  I do not consider them to be independent grounds in support of this leave application, but as matters give rise to the contention and assertion set out in para 8 and 9 above.

11.  Finally, reliance is placed on the plaintiffs’ “concession” to the passing over summons.  At the beginning of the trial herein, the plaintiffs indicated they would no longer oppose the appointment of the administrators pendent lite to continue after the trial, and irrespective of its outcome.  The stance was adopted expressly as a pragmatic solution. 

12.  Whether that stance was properly a “concession” has to be judged in the historical context of the passing over summons, and what it intended to achieve.  Both have been summarized in para 8 and 9 above; this part of the defendants’ case has in effect been rejected as misconceived and/or premature.  Alternatively, insofar as the argument is based on “costs should follow the event”, the last-mentioned matters justified a departure from the usual “rule”.

Conclusion

13.  This leave application is accordingly refused.

Other matters

14.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision on leave to appeal and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order nisi

15.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will therefore be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this leave application be paid by the defendants to the plaintiffs, to be taxed if not agreed on party-and-party basis.