CHEN QUNYING v. YEUNG WING YAN

HCMP 555/2023

[2024] HKCFI 2513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 555 OF 2023

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BETWEEN

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DECISION ON COSTS

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INTRODUCTION

1.  This action was commenced by the surviving wife of the Deceased by Originating Summons filed on 11 April 2023 (“the Originating Summons”) against the Deceased’s eldest daughter by his previous marriage, for an order that letters of administration of the Deceased’s estate be granted to the plaintiff. The action was contested by the defendant, who claimed that the plaintiff should be passed over, and that the defendant should be appointed as the administratrix instead. The defendant further claimed, as an alternative, that a professional administrator be appointed.

2.  At the substantive hearing of the Originating Summons, the parties agreed that Mr Wong Tak Shing (a solicitor) be appointed as professional administrator. I therefore made, inter alia, an order that Letters of Administration of the estate of Yeung Woon Ping (楊煥炳), late of Flat J, 3/F., Block 8, Yuet Wu Villa, No.2 Wu Sau Street, Tuen Mun, New Territories, be granted to Mr Wong Tak Shing of Messrs. Wong Shum & Co as professional administrator.

3.  However, the parties could not agree on the costs order to be made. The plaintiff contended that the defendant should bear costs on indemnity basis. The defendant disagreed, and submitted that the plaintiff should be liable to pay costs instead. As parties could not reach argument, the question on costs has to be adjudicated on, which is the purpose of this Decision.

LEGAL PRINCIPLES

Costs order to be made where the case is settled

4.  It is trite that if a case is settled save as to costs, the court has a wide discretion regarding costs. The established principles have been summarized by Au-Yeung J in Famous Marvel Co Ltd and Others v Conversant Group Ltd and Others (HCA 2153/2009, unreported, 29 October 2012) as follows:

“22. There is no dispute that even if a case is settled except as to costs, the Court still has power to determine which party should be liable for costs. There is no tradition for there to be ‘no order as to costs’ in such a scenario. I am guided by the following principles in deciding costs:

(i) The Court is to decide if the party seeking costs has substantially obtained the reliefs sought in the litigation: Re Chinese United Establishment Ltd, HCCW 291/1994, 5 October 1995, Rogers J (as he then was), approved in CACV 214/1995; Lai Yuet Chun v Super Deluxe International Limited & ors, HCCW 186/2001, 3 June 2003 Kwan J (as she then was).

(ii) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the Court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. Brawley v Marcynski (No.1) [2003] 1 WLR 813.

(iii) The Court will first consider if it is in a position to say what the likely outcome after trial would have been. If it is not in a position to do so, the order may well be no order as to costs: Brawley v Marcynski (No.1), at para 18, Longmore LJ; followed in BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] FSR 150.

(iv) The Court may permit parties to adduce evidence on the question of costs: Ta Tung China & Arts Ltd v Fontana Restaurant Ltd [1999] 1 HKLRD 404; Lai Yuet Chun v Super Deluxe International Limited & ors, at para 12. However, to say that the parties must go to trial in order to resolve any outstanding questions of costs would be contrary to the underlying objectives enshrined in RHC Order 1A rules 1 and 2: Graham M Morley v Kwan Wo Wan & others, HCA 4366/2003, 30 December 2009, Recorder Jat SC.

(v) A broad brush can be taken by referring to all matters already laid before the Court, eg pleadings, correspondence, witness statements, transcripts of evidence and the terms of the settlement order: c.f. BCT Software Solutions Ltd v C Brewer & Sons Ltd, at para 9; Graham M Morley v Kwan Wo Wan & others.

(vi) The objective is to do justice between the parties without incurring unnecessary Court time and consequently additional cost: Brawley v Marcynski (No.1).”

5.  In Glory Empire Global Ltd v Bateson Investment Ltd (HCA 866/2017, unreported, 17 August 2017), Chow J (as Chow JA then was) also had the following to say:

“44. […] I consider the following principles to be applicable where a judge is asked to determine the issue of costs in a situation where the issue of liability has become academic:-

(1) The judge has a wide discretion not only as to the manner by which the issue of costs is to be determined, but also what evidence should be received and what findings to make.

(2) In a simple case where the issue of liability is clear on the face of the pleadings or existing affidavit evidence already filed, it would be open to the judge to determine the issue of costs without receiving any further evidence.

(3) Where the issue of liability is not so clear, the judge may direct evidence to be filed and the witnesses to be cross examined. The judge may also confine the evidence to be filed, and cross examination of the witnesses, to a particular issue or some particular issues.

(4) In determining the issue of liability for the purpose of deciding costs, the court may adopt a broad brush approach and does not necessarily have to conduct a trial to determine the substantive issues.

(5) Where it is impossible for the court, on the existing materials, to say what the likely outcome would be, the court may, in appropriate circumstances, decide to make no order as to costs.

(6) Ultimately, the objective is to do justice between the parties without incurring unnecessary court time and consequently additional costs.”

Indemnity costs

6.  The general principles as to when the court may order costs on an indemnity basis are well established. In Overseas Trust Bank Ltd v Coopers & Lybrand (a firm) and Others [1991] 1 HKLR 177, Godfrey J (as his Lordship then was) explained that:

“ […] In order to justify a taxation on the indemnity basis, the successful party has to show, either that the case is one of a type already recognised in the practice of the court as warranting a taxation on that basis (such as, for example, the contempt cases to which I have already referred) or that there is some feature in the case even more special or unusual than one which would justify a taxation on the common fund basis. A case in which the successful party has demonstrated that the proceedings were initiated or prosecuted by the unsuccessful party in a manner which constitutes that party’s proceedings an abuse of the process of the court might well be a candidate for an award of taxation of costs on an indemnity basis. A taxation of the successful party’s costs on an indemnity basis could properly be ordered, in my opinion, where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for taxation of the successful party’s costs on an indemnity basis.” (at 182G – 183C)

7.  In Choy Yee Chun (The representative of the estate of Chan Pui Yiu) v Bond Star Development Ltd [1997] HKLRD 1327, Stock J (as his Lordship then was), having referred to the Judgment quoted above, stated:

“It has since been held that, though there must still be shown special and unusual features, even the circumstances particularised by Godfrey J. are not to be taken as exhaustive of the conditions in which it might be appropriate to make such an award, and that the power to award taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. (See Macmillan Inc. v. Bishopsgate Investment Trust Ltd., 10 December 1993 (unreported) cited in Sung Foo Kee Ltd. v. Pak Lik Co. [1996]3 HKC 570).

In Sung Foo Kee Ltd a litigant had been repeatedly in contempt of court orders and the trial judge had found that the defendant had deployed defences which he termed “hocus pocus” and had used the legal process to prevent the plaintiff obtaining its just payment. The Court of Appeal said that it would have awarded costs on an indemnity basis. It remarked (at page 575) that the circumstances in which an indemnity award might properly be made were not restricted to circumstances such as those described by Godfrey J. in Overseas Trust Bank (supra). At p.575B - E of Sung Foo Kee Ltd. (supra), Godfrey J.A. said -

‘Here, as in England and Wales, the judge has a discretion, in a case which does fall outside the general rule, to direct the taxation of the receiving party’s costs on the basis which he considers to be appropriate to that case. This is not a discretion limited by indications in previous cases, such as, eg the observations of Godfrey J in Overseas Trust Bank Ltd v Coopers & Lybrand [1991] 1 HKLR 177 (in which he declined to order the successful party’s costs to be taxed on the indemnity basis), as to the sort of special or unusual feature (there does have to be some special or unusual feature) which could justify an award of indemnity costs. Although the examples given in the judgment of Godfrey J at 182J-183C may be of assistance in other cases in which indemnity costs are claimed, his judgment does not purport to be and is not to be taken as determinative of the sort of case in which indemnity costs may be ordered.’

The Court of Appeal endorsed the view of the English courts that :

‘The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion as to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and have part of their costs disallowed if they win. Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be ‘appropriate’.’ (see Macmillan Inc. v. Bishopsgate Investment Trust Ltd. supra)

Further at p.576 -

‘… it is a pity that various courts have attempted to define in exactly what circumstances indemnity costs may be ordered.’ (see Munkenbeck & Marshall v. McAlpine (1995) 44 Con LR 30 per Hollis J, at page 33)

The Court of Appeal in Sung Foo Kee Ltd at page 576F added :

‘… Our rules do now expressly provide for the taxation of costs on an indemnity basis and when they consider it appropriate judges should not be slow to make orders for the receiving party’s costs to be taxed on that basis.’ ”

(at 1334G – 1335G)

8.  In Cheung Wei Man Vivien and Chan Kim Thiam v Centaline Property Agency Ltd & Others (HCA 286/2000, unreported, 15 December 2006), Lam J (as Lam PJ then was) also had the following to say:

“It is also useful to remind ourselves what Simon Brown LJ said in Liam v MGN Ltd (No.2) [2002] 1 WLR 2810 at Paras.11 and 12 in considering whether the conduct of a losing party is so unreasonable so as to warrant an award of indemnity costs. In particular, at Para.12, His Lordship observed,

‘I for my part understand the court there to have been deciding no more than that conduct, albeit falling short of misconduct deserving of moral condemnation, can be so unreasonable as to justify an order for indemnity costs. With that I respectfully agree. To my mind, however, such conduct would need to be unreasonable to a high degree; unreasonable in this context certainly does not mean merely wrong or misguided in hindsight.’ ”

BACKGROUND

9.  With the above principles in mind, I now turn to the background facts which I consider particularly relevant as far as the question of costs of this action is concerned. The background to be set out would be quite lengthy, so that readers may understand why the Court’s discretion would be exercised in the particular way it does.

10.  The Deceased was married to Madam Li Ngan Chau (“Madam Li”) and three children were born to them in the wedlock, namely, the defendant, Yeung Sai Kit (“the Deceased’s Elder Son”) and Yeung Wing Sum.

11.  The defendant had no contact with the Deceased since around 2003, when she graduated from university.

12.  The Deceased’s marriage with Madam Li was dissolved in April 2006.

13.  The plaintiff was previously married to a Mr Deng.

14.  Mr Deng passed away in November 2005.

15.  The plaintiff then married the Deceased in October 2006.

16.  During the plaintiff’s previous marriage, a boy Deng xxx xxx (“the Boy”) was born in May 2003. The plaintiff alleged that the Boy’s biological father was in fact the Deceased. By a Deed Poll dated 18 January 2012, the Boy’s surname was changed to “Yeung”.

17.  The Deceased died intestate on 14 February 2015. His last occupation was taxi driver.

18.  The plaintiff first applied for Letters of Administration of the Deceased’s estate on 8 May 2015 (HCAG 6215/2015) (“the plaintiff’s 1^st L/A Application”).

19.  She was then informed by the Probate Registry in June 2015 that two Caveats, namely, HCCA 1455/2015 and HCCA 2257/2015, had been entered. It is undisputed that they were entered by Madam Li and Dah Sing Bank, Limited on 26 March 2015 and 14 May 2015 respectively. The plaintiff did not file any warning in relation thereto.

20.  The plaintiff was further informed by the Probate Registry in November 2015 that another Caveat had been entered (HCCA 5196/2015). It was entered by Dah Sing Bank, Limited on 17 November 2015.

21.  It can be seen from the correspondence between the Probate Registry and the plaintiff that the Probate Registry was still following up on the plaintiff’s 1^st L/A Application in late 2018 up to mid-2019.

22.  The plaintiff’s 1^st L/A Application was subsequently withdrawn on 23 October 2019 by the plaintiff because any application for Letters of Administration should be made by two persons in the light of the fact that minority interest was involved (the Boy was around 16 years old in 2019).

23.  On the same day of withdrawal, the plaintiff made another application for Letters of Administration (HCAG 16965/2019) (“the plaintiff’s 2^nd L/A Joint Application”) together with her friend Mr Wong.

24.  The plaintiff was then informed by the Probate Registry that another application for Letters of Administration (HCAG 15503/2019) (“the defendant’s L/A Application”) was pending. This application was made by the defendant on 25 September 2019. It should be noted that the Boy was described as the Deceased’s “lawful and natural son” even though the defendant was unable to put down his age[1].

25.  On 13 February 2020, the defendant’s former solicitors wrote to the plaintiff and Mr Wong, and proposed that the plaintiff’s 2^nd L/A Joint Application be withdrawn, so that the defendant could obtain Letters of Administration together with her adult sibling. The defendant’s former solicitors assured the plaintiff that her right to share the Deceased’s estate would not be affected. The solicitors also stated that once the defendant and her sibling had obtained Letters of Administration, they would distribute the Deceased’s estate to the plaintiff and her son pursuant to the law.

26.  It should be particularly noted that, in the said letter, the defendant’s former solicitors did not put forward any ground in support of their suggestion that the plaintiff and Mr Wong should withdraw the plaintiff’s 2^nd L/A Joint Application apart from saying that it would save time and legal costs.

27.  The Boy reached the age of 18 in May 2021. The plaintiff then took out another application for Letters of Administration on 5 July 2021 (HCAG 10686/2021) under her sole name only (“the plaintiff’s 3^rd L/A Application”). However, this application was withdrawn in June 2022.

28.  At around the same time of withdrawal, the plaintiff made another application for Letters of Administration with the assistance of solicitors in June 2022 (“the plaintiff’s 4^th L/A Application”).

29.  On 21 July 2022, the plaintiff received a letter from the Probate Registry, which informed her that since there were two other pending applications in respect of the same estate (namely, the plaintiff’s 2^nd L/A Joint Application and the defendant’s L/A Application, no grant could be issued pursuant to the plaintiff’s 4^th L/A Application unless those other applications were either refused or withdrawn.

30.  The plaintiff then took the following steps:

(1) Her solicitors applied for leave to withdraw the plaintiff’s 2^nd L/A Joint Application which was granted in July 2022;

(2) Her solicitors wrote to the defendant’s former solicitors on 28 July 2022, and demanded the defendant to withdraw the defendant’s L/A Application within 14 days.

31.  The defendant’s former solicitors did not reply to the said letter at all.

32.  The plaintiff therefore asked the Probate Registry to refuse the defendant’s L/A Application since the plaintiff enjoyed a higher priority than the defendant. However, the Probate Registry did not accede to the plaintiff’s request.

33.  The plaintiff’s solicitors then wrote to the defendant’s former solicitors on 25 November 2022 and made the same demand again. The defendant’s former solicitors were also asked to confirm by 30 November 2022 whether they had instruction to accept service of the application to be taken out by the plaintiff to strike out or dismiss the defendant’s L/A Application.

34.  The defendant’s former solicitors then gave a holding reply on 30 November 2022, stating that they were taking the defendant’s instructions and that they could reply shortly. They also asked the plaintiff’s solicitors to withhold any further action in the meantime.

35.  On 31 March 2023, the plaintiff’s solicitors chased the defendant’s former solicitors for a reply.

36.  However, the defendant’s former solicitors did not reply at all.

37.  The plaintiff therefore commenced this action on 11 April 2023.

38.  In the defendant’s affirmation in opposition, she asked that the plaintiff be passed over, on the following grounds:

(1) The plaintiff has made false statements in her various affirmations seeking grant, which cast doubt on whether she would dutifully undertake investigations on the estate’s assets and distribute those assets;

(2) The Deceased’s estate has a number of potential claims against the plaintiff:

(a) Rental claim for the plaintiff’s occupation of the Deceased’s flat in Tuen Mun (“the Deceased’s Flat”);

(b) Property damage claim – the plaintiff has damaged the Deceased’s Flat and has been convicted of the charge of “criminal damage”;

(c) Intermeddling – for the disappearance of the Deceased’s personal belongings, including his substantial amount of cash;

(d) Potential future claims which may occur given the plaintiff’s consistency in causing damage to the Deceased’s estate;

(3) A number of matters require further investigation:

(a) Whether the Boy was the Deceased’s son;

(b) The extent of the Deceased’s assets – the various affirmations filed by the plaintiff in support of her application for Letters of Administration were self-contradictory and were at odds with the defendant’s understanding.

(4) The plaintiff has a bad character.

39.  The defendant also asserted that, given the small size of the Deceased’s estate, it is not economical to instruct a professional administrator. However, in the paragraph immediately after the aforesaid assertion, she concluded that:

“In those circumstances, P should be passed over from the administrator position as it is necessary or convenient to do so. Instead, myself or alternatively, professional administrators should be appointed.”[2]

40.  Further affirmations were then filed by both sides. Out of those affirmations, I should highlight the followings:

(1) The plaintiff stated in her 2^nd Affirmation (filed on 22 September 2023) that:

(a) since the Deceased’s Elder Son proposed to her a few days after the passing of the Deceased that he would pay her $300,000 – $400,000 and in return she and the Boy should never return to Hong Kong, she was worried that someone would dispute the Boy’s status as the Deceased’s natural son, and therefore she had caused a DNA test to be done and a copy of the test report was exhibited. That report shows that the Boy was indeed the Deceased’s natural son;

(b) there was no need to appoint a professional administrator;

(c) in any event, the defendant is not a suitable person to be appointed as the administratrix of the Deceased’s estate.

(2) The defendant stated in her 2^nd Affirmation (filed on 22 December 2023) that she proposed to appoint Mr Wong Tak Shing, Solicitor of Messrs Wong Shum & Co, to be the professional administrator.

41.  By a letter dated 8 March 2024, the plaintiff’s solicitors made an open offer to the defendant, namely:

(1) To appoint Mr Wong Tak Shing as the professional administrator;

(2) Parties do withdraw their respective probate applications;

(3) These proceedings be withdrawn;

(4) The costs of these proceedings be determined by an oral hearing or on paper.

(“the Open Offer”)

42.  The plaintiff’s Open Offer was rejected by the defendant on 13 March 2024. It was stated by the defendant’s solicitors, among other things, that:

“Your proposed open offer, which does not make sense and unreasonable, is hereby rejected without hesitation. You have obviously misinterpreted our client’s position and view. She has clearly stated that she will only propose to appoint Mr Wong Tak Shing as professional administrator in case she is not appointed as administrator. [emphasis added] Your attention is kindly drawn to paragraph 7 of our client’s 2^nd Affirmation filed on 22 December 2023.” (the words emphasis added were in the original text)

43.  The matter was then fixed for substantive hearing.

44.  At the outset of the hearing on 21 August 2024, the plaintiff’s counsel, upon this Court’s enquiry, informed the Court that the plaintiff was still open to the idea of appointing Mr Wong Tak Shing as the professional administrator.

45.  However, the defendant’s counsel informed the Court that the defendant insisted that she herself should be appointed. This Court then asked the defendant to re-consider the matter, and to take into account the fact that the parties were apparently not on good terms, and the possibility of them having further dispute (and hence further legal costs might have to be spent) in the event the defendant was appointed. The defendant subsequently gave instructions that she agreed to the appointment of Mr Wong Tak Shing.

DISCUSSION

The defendant’s application for costs

46.  I would firstly consider the defendant’s argument that she should be entitled to the costs of the action because she should be regarded as the party who has won the case, because the plaintiff was indeed passed over, and a professional administrator had been appointed which was her alternative case.

47.  I reject this argument. In my view, the plaintiff has not accepted defeat at all despite her agreement to appoint a professional administrator. She has only adopted a very reasonable stance in the present action: In the light of the disputes between the parties, there is no doubt that appointing a professional administrator is a reasonable way out.

48.  This is because even if this Court makes an order in terms of the Originating Summons and appoints the plaintiff as the administratrix of the Deceased’s estate, given the defendant has been very unreasonable in her attitude (see further below), it is very likely (to say the least) that she will continue to raise further issues and objections against the decisions to be made by the plaintiff in the course of her administration of the Deceased’s estate, and those issues and objections would probably be required to be resolved by the Court. Hence, it is unrealistic to expect that once the Court has appointed the plaintiff, that would be the end of the matter. It may just bring more disputes.

49.  For the sake of completeness, I should also say that even though the defendant had put forward an alternative claim that a professional administrator be appointed, she in fact had insisted that she herself be appointed: Although the plaintiff’s Open Offer was made, the defendant refused to accept it, and even described it as “not make sense and unreasonable”. Such insistence was maintained even up to the date of the substantive hearing. It was only changed after this Court reminded her to look at the matter in a practical way. In such circumstances, I am of the view that there is no way that the defendant should be considered the successful party in this action.

50.  Talking about the plaintiff’s Open Offer, that was made by letter dated 8 March 2024, and was rejected by the defendant’s solicitors on 13 March 2024. At the end of the day, the Court has made an order which is as same as the terms of the Open Offer with the consent of the defendant. If the defendant has accepted such an offer back then, parties would have been able to save much costs. Unfortunately, that was not what happened. In such circumstances, there is in fact no reason why the defendant should not bear the plaintiff’s costs at least from 13 March 2024. The defendant’s counsel explained that it was reasonable for the defendant to reject such an offer because it was said that, taking into account the value of the Deceased’s estate, the costs of professional administrator would be disproportionate, and my attention has been drawn to Mr Wong Tak Shing’s hourly rate. However, with respect, the defendant’s counsel has overlooked section 60 of the Probate and Administration Ordinance (Cap.10, Laws of Hong Kong), which provides that:

“(1) Subject to subsection (2), the court may allow to any executor or administrator, including an administrator appointed pendente lite under section 40 (or to a person acting under a power of attorney as attorney for an executor or administrator in the matter of the sealing of a probate or administration under Part IV or in the matter of the realization and administration of an estate under a probate or administration so sealed) such remuneration out of the estate of the deceased person as the court thinks fit.

(2) (a) […]

      (b) No such remuneration shall exceed five per cent on the first $1,000, two and a half per cent on the next $4,000 and one per cent on the balance of the gross value of all property of whatsoever nature administered.

51.  Indeed, such a provision has been expressly referred to in the letter containing the plaintiff’s Open Offer as well as in Mr Wong Tak Shing’s letter of quotation to the defendant’s solicitors dated 19 December 2023.

52.  Further, as I pointed out to the defendant’s counsel at the hearing, the allegation that the plaintiff’s Open Offer is unreasonable simply cannot hold water, because the fact is that the defendant had accepted such an offer eventually.

Indemnity costs order against the defendant

53.  When considering the matter of costs in the present case, two important matters should be borne in mind:

(1) There is no dispute that the plaintiff is the surviving wife of the Deceased, and therefore she has priority in applying for Letters of Administration of the Deceased’s estate. Hence, in order to oppose the Originating Summons, the defendant has the burden to put forward positive grounds so as to “pass over” the plaintiff.

(2) The defendant has not contacted the Deceased since around 2003 until he passed away in 2015. It can therefore be inferred that she knew very little (if any) about the last 12 years of the Deceased’s life. The defendant also admitted that she had “minimal contact”[3] with the Deceased’s Elder Son who lived with the Deceased before he passed away. There is no evidence that the defendant knew much about the Deceased’s household in the period between 2003 and 2015.

54.  Having considered the affirmations filed and the documents exhibited thereto, it is apparent to this Court that the defendant all along had no valid ground for resisting the plaintiff’s application for Letters of Administration, and that the defendant should know this fact better than anyone else. Yet, she has decided to stand in the way of the plaintiff for no good reason. She only wanted to take the matter upon her own hands without any legal basis. In the earlier part of this Decision, it has been mentioned that after she has lodged the defendant’s L/A Application, her former solicitors proposed to the plaintiff on 13 February 2020 that the plaintiff’s 2^nd L/A Joint Application should be withdrawn “to save time and legal costs”. However, no other reason (such as those which were subsequently relied on by the defendant in this action) had been provided. With respect, there is a strong indication that the defendant was only trying to use a solicitor letter to give the plaintiff pressure.

55.  Furthermore, the crucial point here is that, by that time (13 February 2020), the defendant’s solicitors were still assuring the plaintiff that the Boy would be entitled to have a share in the Deceased’s estate. I will come back to this matter later again.

56.  In 2022, it was apparent that no application for Letters of Administration could be proceeded with further without one of the parties withdrawing her previous application. The plaintiff’s solicitors therefore sent various demand letters to the defendant’s former solicitors, who simply failed to give any substantive reply, even though they had taken the defendant’s instructions[4]. As I will explain further, in my view, at that time, there was really nothing useful which the defendant’s solicitors could reply, because the defendant simply had no ground to dispute the plaintiff’s assertion that the plaintiff should be granted Letters of Administration, nor could she say why it would be “necessary or convenient”[5] for the plaintiff to be passed over.

57.  Furthermore, as I will demonstrate below, the defendant had decided to contest the Originating Summons without having any material in hand in support of her case that the plaintiff should be passed over. In the circumstances where the plaintiff has priority in obtaining Letters of Administration of the Deceased’s estate, such an approach adopted by the defendant is wholly unreasonable.

58.  The above conclusion can be reached by considering the grounds of opposition which the defendant has put forward in the present action – in my view, those grounds were either “found out” by the defendant after she has received the plaintiff’s supporting affirmation herein or were her after-thought. No matter which category did those grounds fall into, they share a common feature, namely, they have no merits at all. Some of the grounds relied on were totally unreasonable or defy logic. They only serve to reflect very badly on the defendant’s litigation conduct and her unreasonable attitude in the handling of this action. In a way, she has abused the process of the Court to attain her ulterior motive in standing in the way of the plaintiff.

59.  I now turn to the individual grounds relied on by the defendant.

Alleged false statement

60.  The defendant alleged that the plaintiff had made false statements in her various applications seeking grant in that the plaintiff did not include the defendant nor the defendant’s sister as the Deceased’s issues. It was said that the plaintiff was attempting to exclude them from sharing the Deceased’s estate.

61.  The defendant did not know about this argument until she has received the plaintiff’s exhibits served together with her supporting affirmation. In other words, when she decided to contest the Originating Summons on 22 May 2023 (when she lodged her Acknowledgement of Service), she had no knowledge about the alleged false statement.

62.  In any event, the defendant was trying to make a mountain out of a molehill, because it is undisputed that, when the plaintiff’s 4^th L/A Application was made (by solicitors on 23 June 2022), the names of the defendant and her sister had been included as the Deceased’s issues. Further, the defendant was described by the letter of the plaintiff’s solicitors dated 25 August 2022 to the Probate Registry as “lawful daughter of the Deceased”. These documents were prepared before the commencement of these proceedings. In other words, the plaintiff’s mistake in not including the defendant and her sister had been corrected herself before she knew that the defendant would make such a serious allegation against her.

Alleged claim of rental against the plaintiff

63.  It is the undisputed evidence of the plaintiff that:

(1) The Deceased lived in the Deceased’s Flat together with the Deceased’s Elder Son;

(2) The plaintiff resided in the Mainland while the Deceased was alive. Whenever she came to Hong Kong together with the Boy, she would stay at the Deceased’s Flat (which was their matrimonial home) together with the Deceased and the Deceased’s Elder Son.

64.  The defendant alleged that since the plaintiff has been occupying the Deceased’s Flat without paying any rent after the passing of the Deceased, the Deceased’s estate has a potential rental claim against her, and as a result, because of conflict of interest, the plaintiff should be passed over.

65.  It can be seen from the defendant’s Affirmation that this allegation was made on the basis of what the plaintiff stated in her affirmation (and the documents exhibited thereto) filed in support of the Originating Summons (for example, the plaintiff has put down the address of the Deceased’s Flat as where she was currently living when she made the plaintiff’s 1^st L/A Application on 8 May 2015). In other words, when the defendant decided to contest the Originating Summons, she knew nothing about the alleged occupation. This is not surprising, because she had not contacted the Deceased for a long time before he passed away in 2015, and she had only had minimal contact with the Deceased’s Elder Son during the last 12 years of the Deceased’s life.

66.  I am of the view that it is unreasonable for the defendant to maintain this rental claim in support of his allegation of conflict of interest:

(1) It was not disputed that the plaintiff had indeed damaged the iron gate to the Deceased’s Flat by injecting super glue into its key hole on around 3 July 2015[6]. Such a lock had to be replaced before the plaintiff could use her own key to enter into the Deceased’s Flat again, not to mention in fact it was the undisputed evidence of the plaintiff that the lock which she damaged was newly installed by the Deceased’s Elder Son without giving notice to her (in other words, she could not enter into the Deceased’s Flat on 3 July 2015), and as a result, she did not have the key thereof. In such circumstances, there is simply no way that the plaintiff could have resided in the Deceased’s Flat at least since 3 July 2015;

(2) Although the plaintiff eventually managed to obtain her Travel Records from the Immigration Department which show that she had never stayed overnight in Hong Kong in the period between 14 February 2015 and 4 August 2015, the defendant still maintained her claim. The defendant’s counsel submitted in Court that the plaintiff should still pay rent on the ground that her belongings were still left in the Deceased’s Flat. This suggestion is plainly unreasonable and vexatious, given the undisputed fact that the Deceased’s Flat was the matrimonial home of the plaintiff and the Deceased, not to mention it is the uncontradicted evidence of the plaintiff that she had been told by the Deceased’s Elder Son on 8 May 2015 that all her belongings in the Deceased’s Flat had already been thrown away.

67.  The truth of the matter is: The defendant simply did not know whether the plaintiff had ever resided in the Deceased’s Flat after the passing of the Deceased[7]. Hence, the defendant’s allegations were only based upon speculation.

68.  Worse still, she maintained her unreasonable stance throughout these proceedings, despite the plaintiff’s evidence. What is even more remarkable is that despite the plaintiff’s explanation that she had not resided at the Deceased’s Flat at all since the passing of the Deceased, the defendant has failed to cause the Deceased’s Elder Son to make any affirmation[8]. He must be the best person to say one way or another as to whether the plaintiff had lived in the Deceased’s Flat because he was living there himself.

Intermeddling

69.  The defendant alleged that a number of the Deceased’s personal belongings, including a substantial amount of cash, had disappeared.

70.  The defendant based this allegation upon her suspicion caused by her inability to find any cash in the Deceased’s Flat. She said this was highly suspicious because the Deceased “worked as a taxi driver such that he was used to keeping substantial amounts of cash”[9].

71.  As aforesaid, the defendant had not contacted the Deceased for 12 years before he passed away. There is no basis at all for the defendant to put forward the factual matters which she did, which was nothing but speculation.

72.  Further, if the defendant had really considered this to be a matter which rendered the plaintiff unsuitable to be appointed as administratrix of the Deceased’s estate, the defendant would have applied to the Court to pass over the plaintiff long time ago, however, she did not. Notably, the defendant had this to say when she explained in her Affirmation why she made the defendant’s L/A Application in 2019:

“17. I had been waiting for at least 4 years for P (being the surviving wife) to carry out her duty to administer [the Deceased]’s estate. As it appeared to me then, she did not appear to actively attempt to administer his estate. In fact, no Warning to Caveator in relation to all the above-mentioned caveats were made to me; nor had I heard of any actions taken by P to administer the estate.

18. For these reasons, I finally filed an application under HCAG015503/19 for a grant in 2019. […]”

73.  It can be seen that “inaction on the part of the plaintiff” was the only reason given to explain why the defendant decided to make her own application for Letters of Administration in 2019 (more than 4.5 years since the demise of the Deceased). This shows that the allegation of intermeddling (which should have been apparent to her in as early as 2015) is just an after-thought, otherwise she would not have waited for the plaintiff to apply for Letters of Administration.[10]

74.  It also goes without saying that such a ground is totally unsupported by evidence.

Biological relationship between the Deceased and the Boy

75.  The defendant alleged that the Boy’s entitlement is something which should be investigated and as a result the plaintiff should not be granted Letters of Administration by reason of conflict of interest.

76.  It is obvious that this was a matter which only appeared to the defendant that she could make use of in her opposition upon her receipt of the plaintiff’s supporting affirmation. She did not know about this point when she decided to contest the Originating Summons. Indeed, as mentioned earlier, her former solicitors assured the plaintiff on 13 February 2020 that the withdrawal of the plaintiff’s 2^nd L/A Joint Application would not affect the Boy’s share in the Deceased’s estate.

77.  What is even more unreasonable is that the defendant still maintained this argument despite the plaintiff’s production of a DNA Report of the Boy which proves that the Deceased was indeed his biological father.

78.  I should further mention that the defendant alleged that “the plaintiff only suddenly[11] alleged the Boy to be the Deceased’s natural son after the Deceased’s death”[12]. I do not know the basis of the defendant’s allegation. To me, this allegation is totally unreasonable, because the defendant had left the Deceased for 12 years. She did not even know that the Deceased had remarried until after the passing of the Deceased[13]. Her attempt to give the Court an impression that the plaintiff only suggested that the Boy was the Deceased’s natural son after the Deceased had passed away is not only unfair but also misleading.

79.  All in all, the defendant’s argument about the Boy is totally unmeritorious.

Conclusion

80.  Looking at all the matters above in the round, in my view, the defendant’s ulterior motive was simply to create difficulties on the part of the plaintiff in getting her share (and the Boy’s share) of the Deceased’s estate:

(1) Before these proceedings were commenced, the defendant was unable to state any ground to dispute the plaintiff’s entitlement to administer the Deceased’s estate;

(2) Upon receipt of the plaintiff’s affirmation filed in support of the Originating Summons, the defendant tried to look for materials so as to justify her oppositions, and had to resort to a number of complaints in relation to incidents which took place before 2019 which clearly were her after-thought;

(3) Despite numerous evidence produced by the plaintiff which the defendant could not dispute, the defendant insisted to maintain her allegations against the plaintiff even though it must be clear that her allegations were totally hopeless;

(4) The defendant even rejected the very reasonable Open Offer made by the plaintiff when it must be apparent that that was the best way to resolve the dispute between the parties.

81.  Such ulterior motive on the part of the defendant must not be condoned.

82.  The defendant’s aforementioned conduct, which this Court is entitled to consider pursuant to Order 62 rule 5(e) of the Rules of High Court, has unnecessarily and unreasonably led to these proceedings, lengthened the whole case after its commencement, and thereby unreasonably escalating costs.

83.  In such circumstances, I am of the view that the plaintiff should be granted indemnity costs for the whole action.

Reserved costs

84.  This action was fixed before DHCJ MK Liu for a call-over hearing on 24 November 2023 (“the Call-Over Hearing”).

85.  In Ms Tse’s skeleton argument lodged for the purpose of the Call-Over Hearing, she mentioned that the defendant was minded to take out a summons and ask for an order that certain parts of the plaintiff’s 2^nd Affirmation together with the exhibits referred thereto be expunged on the ground that those are “without prejudice” materials. She proposed that the Call-Over Hearing be adjourned and the call-over be brought up again upon determination of the defendant’s anticipated application.

86.  At the Call-Over Hearing, his Lordship decided to expunge parts of the plaintiff’s 2^nd Affirmation even though a formal application was yet to be made by summons. His Lordship has, on the same occasion, also given a number of standard directions for the purpose of the substantive hearing. Costs of the hearing was reserved.

87.  Ms Tse submitted before this Court that the defendant should be entitled to the reserved costs of the Call-Over Hearing because DHCJ M.K. Liu had expunged part of the plaintiff’s evidence in that hearing.

88.  Given the fact that:

(1) the Call-Over Hearing was a short one (it lasted for less than 30 minutes);

(2) the making of the expunge order (together with the oral submissions made thereon) did not take up much time;

(3) the expunge order was given as part of the case management directions;

(4) the learned Judge did give a number of other case management directions for the purpose of preparing the case for substantive hearing,

I am of the view that the Court should treat the “reserved costs” of the Call-Over Hearing in the usual way, that is, such costs should be dealt with in the same way as the overall costs of the action. I therefore reject Ms Tse’s submissions.

ORDER

89.  By reasons of the aforesaid, I make a costs order that the defendant shall bear the plaintiff’s costs of the Originating Summons (including all costs reserved), which shall be assessed on indemnity basis.

90.  Both parties asked for an order that the successful party’s costs be summarily assessed in lieu of taxation. I therefore further order that:

(1) The plaintiff shall lodge and serve her statement of costs within 14 days;

(2) The defendant shall lodge and serve her statement of objection within 7 days thereafter;

(3) Summary assessment of costs will be conducted on paper (no matter whether any statement of objection is lodged by the defendant) thereafter.

(4) The costs assessed shall be paid by the defendant within 14 days after assessment.