CHOW LILY v. CHOW WAI WAI VIOLET AND OTHERS

HCAP 22/2019

[2019] HKCFI 2277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

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D E C I S I O N

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1.  This is the defendants’ appeal against the order of Master K H Hui made at the three-minute hearing on 1 August 2019.

2.  As the matter only involves a case-management decision and my decision on the appeal has to be delivered on an urgent basis ahead of the hearing on 15 August 2019, I shall only give brief reasons. 

3.  I note that one day before the hearing before the Master, on 31 July 2019, the plaintiff lodged her skeleton submissions attaching a draft order, in which the plaintiff sought representatives of Deloitte to be appointed as Administrators Pendente Lite (“APL”) only of the Chevalier Shares (as opposed to the entire estate), as well as directions in respect of the remainder of the APL Summons in line with the agreed timetable, namely:

(1)  The defendants shall file and serve their affirmation(s) in opposition to the summons on or before 5 September 2019.

(2)  The plaintiff shall file and serve her affirmation(s) in reply, if any, on or before 26 September 2019.

(3)  No further affirmation be filed without leave of the court.

(4)  The summons be adjourned to a date to be fixed in consultation with counsel’s diaries with one day reserved.

4.  In other words, the plaintiff did not propose that at the hearing on 15 August 2019, the entire APL Summons should be determined or that all the evidence has to be filed in August. 

5.  Contrast the order in fact made by Master K H Hui at the hearing, where the Master appeared to have ordered as follows.  I say “appeared” because before the court is only the draft order put forward by the defendants, as well as a note of the Master’s hearing made by the Master himself.

(1)  The defendants do file the affirmation(s) in opposition to the summons dated 15 July 2019 for appointment of APL to the estate (“the Summons”) on or before 7 August 2019 noon.

(2)  The plaintiff do file her affirmation(s) in reply, if any, on or before 13 August 2019 noon.

(3)  No further affirmation(s) to be filed without leave of the court.

(4)  The Summons be adjourned to 15 August 2019 at 2:30 pm (two hours reserved).

6.  Thus, on the face of the order, it is a possibility that the entire APL Summons will be determined at the two-hour hearing on 15 August 2019.

7.  It seems to me that the Master has either granted an order not sought by the plaintiff, or the plaintiff has pushed for and obtained an order way beyond what was proposed in her skeleton submissions and the draft order.  In my view, either way, the order made seems to be plainly wrong.

8.  Upon a hearing de novo of the matters before the Master, I am of the view that the appeal ought to be allowed for the following reasons.

9.  First, the defendants are entitled to a reasonable opportunity to file full evidence to address the issues in opposition to the APL Summons, as well as who should be appointed and the scope and limits of the APL should the court decide to appoint such.  It is extremely prejudicial to the defendants who are now deprived of a reasonable opportunity to properly put all evidence in opposition to the APL Summons before the court.  And in my view, the time permitted by the order of 1 August 2019 is not sufficient for that purpose. 

10.  Second, there is no urgency to deal with the entirety of the APL Summons on 15 August 2019.  As I have pointed out earlier, there is nothing in the plaintiff’s skeleton submissions dated 31 July 2019 for the hearing on 1 August 2019 asking for the entirety of the APL Summons to be dealt with on 15 August 2019.

11.  Third, the appointment of APL has far-reaching consequences to the administration of the estate and the interest of the parties involved and, in my view, the defendants as executors ought to be afforded a reasonable opportunity to address the court on all these implications. 

12.  Accordingly, I shall allow the appeal and should now hear the parties on the terms of the order to be made either with reference to the

notice of appeal or the draft order lodged with the court by the plaintiff.