NINA KUNG v. TAN MAN KOU AND ANOTHER

FACV No. 6 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 FINAL APPEAL NO. 6 OF 2004 (CIVIL)

(ON APPEAL FROM CACV NO. 124 OF 2003)

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Date of Judgment: 18 February 2005

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JUDGMENT  ON  COSTS

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Mr Justice Bokhary PJ:

1.    When handing down judgment we substituted for the order as to costs made by the Court of Appeal an order nisi leaving the parties to bear their own costs here and in the courts below.  The petitioners, who are the administrators pendente lite of the late Mr TH Wang’s estate, ask us to vary the order nisi so as to include a direction that the administrators’ own costs here and in the courts below be paid out of Mr Wang’s estate and be taxed on a trustee basis.  This variation is opposed by the widow who asks that the order nisi be made absolute.  Each side has made written submissions.

2.    The question whether the petitioners/administrators are or are not entitled to have the costs of their application for leave to amend the petitions, and the costs of the appeals to which that application has given rise, paid out of Mr Wang’s estate is a question as between the administrators and the beneficiaries of the estate.  It is not a question as between the petitioners and the respondents to the petition.  So it does not arise in the petition proceedings.  It arises instead in the proceedings wherein the petitioners were appointed administrators pendente lite and can be resolved, if necessary, by an application made in those proceedings. 

3.    Accordingly, having considered the submissions made by the parties on costs, we order as follows: “The order nisi is made absolute without prejudice to any right that the petitioners/administrators may have to seek payment of their costs out of Mr Wang’s estate.”

Representation: written submissions were received from both sides