XCHRX CHAN WAI WAH, LILY ANN v. CHAN SAI LUN, HENRY AND OTHERS

HCMP 2921/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2921 OF 2001

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D E C I S I O N

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1. I have before me two summonses taken out by the 1st, 4th and 6th defendants seeking the following relief:

(1) the automatic stay of proceedings arising from the plaintiff's application for legal aid be lifted;

(2) the Originating Summons herein against the 1st, 4th and 6th defendants be struck out and/or dismissed as disclosing no reasonable cause of action or is scandalous, frivolous or vexatious or an abuse of the process of the court; and

(3) an order that no legal proceedings against the 1st, 4th and 6th defendants be brought without leave of the court by the plaintiff in any court in respect of the same claim or subject matter of High Court Action No. P2 of 1993 ("the Probate Action"), High Court Action No. A14052 of 1999 ("the Possession Action") or the Originating Summons herein and if notice of any such application be given without leave being obtained, the 1st, 4th and 6th defendants shall not be required to appear upon such application and it shall be dismissed without being heard.

2. The plaintiff is the sister of the 1st defendant. The 1st defendant is the executor and only beneficiary of their father's estate under a will made on 9 January 1990. The 4th defendant is a firm of solicitors who had submitted a probate application for the 1st defendant. The 6th defendant is a firm of solicitors who have acted for the 1st defendant in the Probate Action and the Possession Action.

3. In the Probate Action, the plaintiff challenged the validity of the will on various grounds including forgery and lack of testamentary capacity. After a trial which lasted for 28 days, Barnett J gave judgment for the 1st defendant on 1 May 1998 and pronounced for the will in solemn form. It was ordered that subject to any requisition of the Probate Registry, probate was to be granted to the 1st defendant. Pursuant to that order and on 25 February 1999, probate of the will in solemn form was granted to the 1st defendant.

4. Between May 1998 and May 2000, the plaintiff made various applications to stay the judgment of Barnett J pending appeal to the trial judge, to a single judge of the Court of Appeal and to the Court of Appeal. Her applications for stay pending appeal were unsuccessful. On 20 March 2000, it was ordered by Ribeiro JA (as he then was) that the plaintiff was to give security for costs of the appeal. That order was not to take effect until a decision was given by a master in the plaintiff's appeal against refusal of her legal aid application. The plaintiff's appeal was dismissed by a master and as she did not provide security for costs as ordered, her appeal was dismissed pursuant to the order made on 20 March 2000. That remains the status in the Probate Action.

5. The Possession Action was brought by the 1st defendant against the plaintiff to recover possession of a property at Robinson Road ("the Property") which formed part of the father's estate. The writ was issued in August 1999 and on 23 March 2000 the 1st defendant obtained summary judgment against the plaintiff by an order made by Beeson J. Between May 2000 and November 2000, the plaintiff made a number of applications to set aside the judgment and to stay the execution of the judgment pending appeal. Her applications were unsuccessful. She was ordered to pay security for costs of the appeal by Woo JA. I understand that the plaintiff has not complied with this order.

6. When the matter came before Yam J on 10 November 2000 in one of the several applications of the plaintiff for a stay of execution, Yam J dismissed her application and he imposed an additional order that there should be no further application by the plaintiff without the leave of the master of the High Court and no appeal from the master without the leave from a judge of the Court of First Instance. As he took the view that there had been abuse of the process of the court on the part of the plaintiff, the judge further stated in his judgment that the Department of Justice should consider seriously whether to apply to the court to adjudge the plaintiff as a vexatious litigant under section 27 of the High Court Ordinance, Cap. 4.

7. The 1st defendant has experienced great difficulty in recovering possession of the Property notwithstanding that a writ of possession was issued in July 2000. The 1st defendant had to apply for a writ of restitution in January 2001 when the plaintiff sneaked back into the Property after possession had been recovered by the court bailiff. In March 2001, the plaintiff applied to set aside the orders for the writ of possession and the writ of restitution. That application was dismissed by Dep. J. Woolley on 8 March 2001. I gather that possession of the Property has been recovered on 23 May 2001 and that seems to be the present status in the Possession Action.

8. The Originating Summons herein was issued by the plaintiff on 25 May 2001. On 1 June 2001, she applied for legal aid to conduct the present proceedings. Legal aid was refused on 14 June 2001. When the 1st and 6th defendants issued a summons seeking to strike out the Originating Summons, the stay due to the legal aid application was in force. The statutory period of 42 days for the stay of proceedings due to the legal aid application has lapsed by now. It seems to me unnecessary to make any order lifting the stay as requested by the defendants.

9. On 18 July 2001, the defendants applied to a master for an order for substituted service of their summons and the supporting affidavit on the plaintiff by inserting an advertisement in two newspapers giving notice of the date, time and place of the hearing; the orders sought; and the date, time and place that the plaintiff may collect the necessary papers from the defendants' solicitors. An order for substituted service was made on 18 July 2001 and varied on 26 July 2001. It was necessary for the defendants to seek an order for substituted service because the plaintiff gave the Property as her address for service in the Originating Summons issued on 25 May 2001. That address could not be correct as the plaintiff had been evicted from the Property on 23 May 2001. The order for substituted service has been complied with by the defendants. The plaintiff has not appeared in the hearing today.

10. I turn to the reliefs sought against the defendants in the Originating Summons and they are as follows:

(1) damages in the sum of HK$10 million from each defendant with interest;

(2) the plaintiff's share of the estate of the father be paid by the 1st defendant to the plaintiff;

(3) the grant of probate to the 1st defendant or his solicitors be revoked;

(4) a grant of letters of administration of the estate of the father be made to the plaintiff, alternatively, the plaintiff is to be appointed as "trustee"; and

(5) the assent of the Property in favour of the 1st defendant be set aside.

11. The reliefs sought by the plaintiff against the 1st defendant and the bases of the reliefs sought were raised in the Probate Action and the Possession Action. These issues had been determined in favour of the 1st defendant. There is clearly an attempt to litigate matters which had been determined conclusively against the plaintiff. The Originating Summons against the 1st defendant discloses no reasonable cause of action and is frivolous, vexatious and/or an abuse of the process of the court. In my judgment, the Originating Summons against the 1st defendant should be struck out and dismissed on those grounds.

12. The 4th defendant was brought in on the basis that the solicitors had submitted a probate application for the 1st defendant and had sought estate duty clearance. It is alleged by the plaintiff that these actions were wrongful because of the caveat entered by the plaintiff and by another brother of the plaintiff who had challenged the validity of the will. It is clear that there is no cause of action against the 4th defendant. The plaintiff is mistaken as to the effect of the entry of a caveat. The Originating Summons against the 4th defendant should be struck out and dismissed on the grounds that no reasonable cause of action has been disclosed and the claim against the 4th defendant is frivolous and vexatious.

13. The 6th defendant is sued on the basis that the solicitors had prepared a perfected judgment of Barnett J in the Probate Action. It is alleged that the judgment drawn up was not what the judge had ordered. The plaintiff has alleged that in the judgment of Barnett J, there was no order pronouncing for the validity of the will, and that the 6th defendant had wrongfully drawn up the judgment which stated that the probate of the will was pronounced in solemn form. She was consequently misled into lodging an appeal against that judgment which was not drawn up correctly and it is alleged that the Possession Action was wrongfully brought by the 1st defendant. These allegations are entirely without merit or substance. There is no reasonable cause of action against the 6th defendant and the claim against the 6th defendant is frivolous and vexatious. I order that the Originating Summons against the 6th defendant be dismissed on those grounds.

14. I turn to the last of the reliefs sought by the 1st, 4th and 6th defendants which is an order of the type made in Grepe v Loam (1887) 37 Ch D 168; Ebert v Birch & Anr [1999] 149 NLJ 608; and Tse Jeekeen v HK Alliance in Support of Patriotic Democratic Movement of China & Ors [2000] 2 HKC 339, Chung J and CACV No. 246 of 2000, 27 October 2000, Court of Appeal. The effect of this type of order is to prohibit a litigant from initiating proceedings likely to constitute an abuse of the process of the court. The order is made under the inherent jurisdiction of the court and is narrower than an order made in respect of a vexatious litigant on the application of the Secretary for Justice under section 27 of the High Court Ordinance. A section 27 order applies to any legal proceedings brought by the vexatious litigant in that no proceedings may be brought or continued without leave of the court. A Grepe v Loam type of order is made in respect of existing proceedings or in relation to anticipated but unidentified proceedings of the same claim or subject matter.

15. I should mention that subsequent to the judgment of Yam J in the Probate Action and the Possession Action on 10 November 2000, the Department of Justice had been reviewing the court files for the various actions involving the plaintiff. The Department of Justice is aware of the present application by the 1st, 4th and 6th defendants and has written to the court informing the court that no decision has yet been made whether the Secretary for Justice would apply for a section 27 order as the review of the relevant court files has not been completed.

16. Whether an application is to be made by the Secretary for Justice for a section 27 order should not affect my discretion to make a limited form of order today if I see the need and justification for it. I am satisfied that a case has been made out by the defendants for protection under a limited form of order against further anticipated abuse of process by the plaintiff in bringing unmeritorious proceedings or applications. I make an order in the form as ordered by the Court of Appeal in Tse Jeekeen and it is in the following terms:

"The plaintiff is prohibited from commencing any further new legal proceedings in respect of the same claim or subject matter in High Court Action No. P2 of 1993, High Court Action No. A14052 of 1999 or the Originating Summons herein and if notice of any such proceedings shall be given to the 1st, 4th and 6th defendants without such leave being obtained, these defendants shall not be required to appear in such proceedings which shall be dismissed without being heard."

17. I also order that the costs of this action including the costs of and incidental to the present applications be to the 1st, 4th and 6th defendants, to be taxed if not agreed.