WAI YIN FEI v. CHAN SHUK KING also known as CHAN SHUK KING YVONNE (in her own capacity and in the capacity as the sole Administratrix of the Estate)

HCMP 1936/2025

[2026] HKCFI 5148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1936 OF 2025

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DECISION

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A. INTRODUCTION

1.  On 23 June 2026, the substantive hearing of the OS herein took place before me.  In that hearing, P sought leave to withdraw the OS.  Leave was granted.  The only outstanding issue between the parties was costs.  After hearing submissions, I handed down a decision on costs on 2 July 2026 (“the Costs Decision”), in which I ruled that costs of these proceedings should be paid by P personally to D forthwith, and those costs were summarily assessed at HK$200,000.

2.  On 16 July 2026, P took out a summons (“the Summons”) for leave to appeal against the Costs Decision.  I have directed that the Summons be determined on paper without an oral hearing.  The parties have lodged their respective written submissions[1], and I have considered the same, including the authorities cited therein.  For ease of reference, the abbreviations used in the Main Decision are adopted herein.

3.  In this application, P is represented by Ms Queenie WS Ng, together with Ms Teresa Yu.  D is represented by Mr Timothy Lam.

B.  THE PRINCIPLES

4.  Leave to appeal would only be granted if the appeal has a reasonable prospect of success (which means that the prospect of success is reasonable and more than fanciful, without having to be probable), or there is some other reason in the interests of justice why the appeal should be heard.[2] What is required is a reasonably arguable appeal.  Merely showing that an appeal is “arguable” and “not fanciful” is insufficient.[3]

5.  P is now seeking leave to appeal the Costs Decision.  It is trite that a decision on costs is a decision made as a result of an exercise of discretion of the court.  In order to succeed in the intended appeal, P has to overcome a high hurdle.[4]  The following matters would need to be borne in mind[5]:

(1)  The Court of Appeal would not interfere merely because it would have reached a different conclusion had it been hearing the application at first instance.  The Court of Appeal would only interfere where (a) the court below has misunderstood the law or the evidence, or (b) the exercise of discretion by the court below was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible. The Court of Appeal is not to exercise an independent discretion of its own – its initial function is one of review only.

(2)  An appeal from the judgment made by a judge of the Court of First Instance to the Court of Appeal is not a de novo hearing.  In the notice of appeal, the appellant has to identify a justifiable basis upon which the Court of Appeal may interfere in the decision of the judge below.  The appeal is not a retrial or a de novo rehearing of the application which has already been determined by the court below.

(3)  The mere fact that certain matters relied on by counsel were not mentioned in the judgment does not mean that the judge had not taken them into consideration.  Nor is the judge required to address all the points made by counsel, whether legal or factual.

C.  DISCUSSION

6.  Ms Ng on behalf of P has put forward 7 grounds of appeal.  I would address these grounds in the sequence presented in P’s written submissions dated 21 August 2026.

C1.  Ground 1 - Whether P’s claims were properly characterised as hostile litigation?

7.  P contends that:

(1)  P’s application by the OS is not hostile in nature.  The application is a statutory application under s.56 of the Probate and Administration Ordinance (“PAO”) against D, in her capacity as administratrix, to compel D to perform a duty to account owed to the Estate.  The application is a lawful means by which a beneficiary seeks information to which he/she is entitled and the right to an account is not contingent on proof of wrongdoing at the outset.  P’s application to compel an account was accordingly the vindication of an entitlement, not an allegation of wrongdoing against D, and ought not to have been characterised as hostile litigation for costs purposes.

(2)  If the Re Buckton framework is applied by analogy, the account application is at least capable of falling within, or being analogous to, the second class in Re Buckton.  Further, the Re Buckton categories are guidance rather than absolute rules, and that the correct classification depends on the circumstances in which the litigation was commenced and prosecuted.

(3)  If the costs of the account application are not to be borne by D personally by reason of her failure to account within a reasonable time, the proper alternative is that those costs, or such part of them as the court considers appropriate, should be borne by the Estate.

8.  With respect, I am unable to accept these submissions.

(1)  In §44 of the Costs Decision, I said:

“In my view, P’s claims against D in these proceedings are in substance adverse claims against D. The litigation is a hostile litigation. In fact, both P and D are saying that there should be an order requiring the other side to bear the costs of these proceedings personally. It is clear that both P and D are treating this litigation as a hostile litigation. Hence, the general rule of costs following the event should apply. In order to depart from the general rule, there must be sufficient reason(s) justifying the departure.” (Emphasis added)

(2)  It is an indisputable fact that in these proceedings, P has made various accusations against D.  In fact, at §5 of P’s written submissions dated 21 August 2026, P is still putting forward the accusation of “failure to account within a reasonable time” against D.

(3)  It is also an indisputable fact that at all times, the primary costs order sought by P is that costs of these proceedings be borne by D personally.  In fact, in the draft Notice of Appeal, the primarily costs order sought by P is also that costs of these proceedings be borne by D personally.

(4)  In these circumstances, there is no room to argue that this Court was plainly wrong in classifying this litigation as a hostile litigation. It is not reasonably arguable that the decision is outside the generous ambit within which a reasonable disagreement is possible.

C2.  Ground 3 – Whether withdrawal of the OS rendered P the unsuccessful party?

9.  P contends that even if the general rule of costs following the event applies, it should be borne in mind that: (a) on 21 November 2025, D provided a list or breakdown of expenses with supporting documents, which P contended remained deficient in that it did not distinguish between expenses relating to the Hong Kong Estate and those relating to the Canadian Estate; (b) on 19 January 2026, P made enquiries concerning rental income; and (c) at the substantive hearing, D confirmed that she would waive expenses. Accordingly, P’s withdrawal of the OS, without more, should not be treated as determinative of the “event” for costs purposes, or as rendering P the unsuccessful party.

10.  As submitted by Mr Lam for D, the general rule is that the starting point is that the party applying to discontinue or to withdraw a set of proceedings or an application should bear the costs.[6]  In order to depart from the general rule, it is necessary to show “exceptional circumstances” to justify such a departure[7].

11.  All the matters mentioned by P in her submissions are also mentioned in the Costs Decision.  Those matters had been considered by the court before the court made the Costs Decision.  At §45 of the Costs Decision, I said that “there is no sufficient reason justifying departure from the general rule of costs following the event in this case”. Reasons were given in §§46 to 50.  P has failed to identify any exceptional circumstances justifying a departure from the general rule, which have been glaringly overlooked by this court.

C3.  Ground 4 – Whether it was reasonable for P to commence and continue the OS?

12.  P challenges the conclusion of this court made at §45 of the Costs Decision that “[i]t is also unreasonable for P to commence and to continue these proceedings against D until the substantive hearing of the OS”.  P contends that:

(1)  D had, by letter dated 6 March 2024, advanced a distribution calculation and demanded payment or compensation of HK$971,760, with interest to be calculated later, without first providing any proper inventory and account to support that calculation. That demand itself demonstrated the need for P to seek a true and perfect inventory and account.

(2)  This court gave insufficient weight to the fact that valuation information may properly form part of a true and perfect inventory and account of estate property. The absence of estate cash and of a prior funding proposal by P did not, without more, render the request for updated valuation information unreasonable. If D genuinely considered there to be practical difficulty in providing the account because of cash flow constraints, the proper course was to seek the court’s directions, rather than simply to withhold the information and later contend that the application was unreasonable.  Nor did D in fact resist the application on that basis; rather, she resisted it more generally on the footing that P was not entitled to the updated account and inventory sought.

(3)  Nor did the absence of a separately pleaded request for rental income, without more, render that aspect of the application unreasonable, given that a proper estate account must set out the whereabouts of estate property and the relevant income and expenditure arising from it.  As D was throughout legally advised, she ought to have been aware of the scope of her duty to provide a proper account.

13.  I am unable to accept these submissions.

(1)  This court has never said that valuation information does not form part of a true and perfect inventory and account of estate property. What this court has said is whether it was reasonable for P to require D to provide updated reports of the HK Landed Properties.  See §46 of the Costs Decision.

(2)  As to why this court regarded P as having acted unreasonably, reasons have been given in §§46 to 50 of the Costs Decisions.  P has not identified any palpable errors in these reasons.

(3)  In particular, as submitted by Mr Lam, P has no answer to the following specific findings made in the Costs Decision:

(a)  In relation to P’s request for updated valuation reports of the HK Landed Properties of the Estate, D had already provided 3 Valuation Reports prepared by Citiland (who are the valuer suggested by P) to P on 6 March 2024.  The 2024 valuation reports became outdated was because of “P’s tardiness in giving response to TLC and P’s unwillingness in having further discussion with TLC” - §46(2)(a) of the Costs Decision.

(b)  The point made by this court in §46(2)(b)-(c) of the Costs Decision is that it was unreasonable for P to take out the OS to ask for a court order compelling D (in her capacity as the administratrix of the Estate) to obtain updated valuation reports in circumstances where there is no cash in the part of the Estate to which P is entitled to pay for such updated valuation reports, and there was never any proposal by P before the issuance of the OS that she would pay for the updated valuation reports. Also, if P would be willing to pay for the valuation costs herself, then P could simply instruct Citiland (or any valuer) to prepare the updated valuation reports directly without the need to involve D as a middleman.  P has not explained why this view should be regarded as plainly wrong.

(c)  In relation to P’s claim for an order requiring D to provide an account of the rental incomes of the HK Landed Properties:

(i)  Given that P had never raised any specific request for an account of the rental incomes from the HK Landed Properties, and withdrew the application for an account of the rental incomes on her own motion, it was doubtful whether P is indeed serious in the applications for an account of the rental incomes.  See §47(2) of the Costs Decision.

(ii)  D had clearly stated the matters concerning the rental income from the HK Landed Properties according to her own knowledge in her affirmation filed on 12 December 2025, and there is no reason why P would need to bring the application for an account to the rental incomes to the substantive hearing of the Withdrawn OS after seeing D’s affirmation.  See §47(3) and (4) of the Costs Decision.

(d)  The account sought in the OS covered all the assets in the Estate when (as P later accepted) P would only be entitled to have a share in a very specific part of the Estate (ie the HK Landed Properties).  The scope of the account sought in the OS is clearly unreasonably wide.  See §50 of the Costs Decision.

14.  In my view, it is not reasonably arguable that this court was plainly wrong in taking the view that it was unreasonable for P to commence and continue these proceedings until the substantive hearing of the OS.  It cannot be said that the view taken by this court is outside the generous ambit within which a reasonable disagreement is possible.

C4.  Grounds 5 and 6 – Without-prejudice global settlement correspondence and Pre-action discovery

15.  These two grounds can be dealt with together.  P proposes to challenge the weight placed by this court on D’s without-prejudice global settlement correspondence as set out in §§48 and 49 of the Costs Decision.  P contends that inappropriate weight had been placed on the said correspondence, which formed the basis for treating P as unreasonable for failing to accept, or to counter-propose acceptance of, alleged waivers contained in that correspondence.  P submits that:

(1)  The alleged waivers were made in the context of global settlement negotiations concerning distribution of the Estate before commencement of the OS. They were not offers to provide a true and perfect inventory and account under s.56 of PAO, nor did they displace D’s continuing duty as administratrix to administer the Estate in accordance with law.

(2)  The relevant offers had lapsed, been superseded and/or were not binding, and no unconditional offer to waive expenses was made until the substantive hearing.

(3)  P was not bound to counter-propose acceptance of one element of a package-deal global settlement proposal, nor to seek a waiver of expenses in lieu of a proper account.  This Court ought not to have treated P’s refusal to accept, or to counter-propose acceptance of, D’s global settlement position as unreasonable conduct for costs purposes.

16.  P also contends that:

(1)  Before commencement of the OS, D had disputed or denied the applicability of s.8A of IEO in a letter dated 1 April 2019, and by letter dated 6 March 2024 had asserted or relied upon the HK$1 million statutory net sum and interest.  That issue was directly connected to the relief sought by P: if s.8A of IEO applied, P was entitled to seek a reduction, and for that purpose was entitled to seek disclosure of the basis and extent of D’s alleged entitlement in Canada. Any alleged prior waiver of that claim was made only in the context of global settlement negotiations, and had lapsed and/or was not binding.  D confirmed only on 21 November 2025, after commencement of the OS, that she would not claim the HK$1 million statutory net sum and interest.

(2)  That concession was directed to the s.8A issue and materially rendered the pre-action discovery application academic. In those circumstances, the pre-action discovery application was not unreasonable when issued and, at the least, required separate treatment for costs purposes.

17.  Mr Lam has helpfully referred to the following principles, which have been repeatedly emphasized by the Court of Appeal:

(1)  In LLC v LMWA[8], Lam ACJHC (as he then was) said:

“52. … even in the context of general civil litigation, the courts expect litigants to explore settlement (with or without undergoing alternative dispute resolution process like mediation) in good faith. …… The Court has repeatedly deplored the nonsensical disproportionate litigation when other modes of dispute resolution were not explored ……

53. The conduct of a party in adopting an uncooperative stance can, and very often will, be taken into account under O.62 r.5(2). Even in a commercial context, the need to engage in constructive negotiations even in face of an unacceptable sanctioned offer was alluded to by this Court in Antwerp Diamond Bank NV v Brink's Inc (No 2) [2015] 4 HKLRD 628 at [21].” (Emphasis added)

(2) It is the court’s expectation that the parties in a litigation would explore settlement options in a constructive manner and that a party’s unreasonable and uncooperative attitude in the settlement negotiations may form a basis for the court to impose costs sanctions.[9]

18.  Plainly, in accordance with the principles set out by the Court of Appeal, it is not reasonably arguable that the reasoning concerning the without-prejudice correspondence and the pre-action discovery as set out in §§48 and 49 of the Costs Decision is plainly wrong.

C5.  Grounds 2 and 7 – Apportionment of costs and summary assessment

19.  These two grounds are dealt with together.  P contends that the OS comprised two distinct applications, (a) the application for an inventory and account, and (b) the application for pre-action discovery.  These two applications required separate treatment for costs purposes.  P submits that the account application remained the main live issue at the hearing, whereas the pre-action discovery application had been substantially overtaken by D’s confirmation on 21 November 2025 that she would not claim the HK$1 million statutory net sum and interest.  P accordingly indicated, as early as 9 December 2025, that she would not pursue that application, subject to her request for a formal undertaking and her position on costs.  The proper order was therefore not a single global order requiring P to bear all of D’s costs personally, but a differentiated order reflecting the distinct applications, issues and timing involved.

20.  There is no merit in these submissions.  This court has found that (a) the general rule of costs following the event should apply, (b) there is no sufficient reason justifying departure from the general rule of costs following the event, and (c) it is also unreasonable for P to commence and to continue these proceedings against D until the substantive hearing of the OS.  With these findings, it would not be necessary and there is no reason to make one costs order for the account application and another costs order for the pre-action discovery.

C6.  Conclusion

21.  I am of the view that P has failed to demonstrate a reasonable prospect of success in her intended appeal against the Costs Decision either by her grounds of appeal collectively, or by any of the grounds individually.  I also do not see any other reason why in the interests of justice the appeal should be heard.  Accordingly, the Summons must be dismissed.

22.  Costs should follow the event and would be summarily assessed on paper.

D.  DISPOSITION

23.  I dismiss the Summons with costs to D forthwith.  Those costs be summarily assessed at HK$70,000.

24.  Lastly, it remains for me to thank all counsel for the helpful assistance rendered to the Court.