CHEUNG WAH WAI v. CHEUNG PUI KING

HCAP 31/2023 and HCMP 1279/2024

(Heard Together)

[2025] HKCFI 4999

HCAP 31/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 31 OF 2023

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AND

HCMP 1279/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1279 OF 2024

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(Heard Together)

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D E C I S I O N

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Introduction

1.  The protagonists in these two actions are Madam Cheung Pui King (“King”) and Mr Cheung Chi Wai, her younger brother (“Wai”). The common dispute in these two actions concerns the estate of their late father (“the Father”).

2.  HCAP 31/2023 (“the Probate Action”) is a probate action brought by Wai to revoke the probate granted to King. The probate was based on a will executed by Father in 2001 (“the 2001 Will”), which appointed King as the sole executrix. Wai contends that the 2001 Will was revoked by subsequent wills executed by Father in 2014 (“the 2014 Will”) and a will executed in 2019 (“the 2019 Will”). Wai was appointed the sole executor by both the 2014 Will and the 2019 Will. King challenges the validity of both the 2014 Will and the 2019 Will in her Defence.

3.  HCMP 1279/2024 (“the Administration Action”) is an administration action commenced by King’s Originating Summons dated 22 July 2024 (“the OS”). King claims to be the sole beneficial owner of the property situated in Siu Lun Court, Tuen Mun albeit it is currently registered in the name of Father (“the Property”). King’s claim is based on her plea of promissory estoppel, common intention constructive trust and, alternatively, resulting trust. King seeks, among other things, a declaration that the Property does not form part of the estate of the Father (“the Estate”).

4.  In each of the Probate Action and the Administration Action, King took out a summons dated 5 August 2024 for her application for a stay of the Probate Action pending the determination of the Administration Action or in the alternative, the two actions be heard before the same judge at the same time or immediately after another with the Administration Action as the lead case (“the Stay/Heard Together Summonses”).

5.  In the Administration Action, Wai took out a summons dated 23 August 2024 (“the Striking-out Summons”) to strike out the OS pursuant to O.18 r.19, Rules of the High Court (“RHC”) on the grounds that (1) it discloses no reasonable cause of action; (2) it is scandalous, frivolous or vexatious; (3) it may prejudice, embarrass or delay the fair trial of the action; and/or (4) it is otherwise an abuse of the process of the court. Alternatively, Wai asks the OS be adjourned sine die with liberty to restore.

6.  This is the hearing of both the Stay/Heard Together Summonses and the Striking out Summons. Mr Yeung appears for King and Mr Wong appears for Wai.

Background facts

7.  I shall adopt a large part of Mr Yeung’s narrative of the background facts, which is as follows.

8.  The Father passed away in August 2022. He and Madam Ho (“the Mother”) had three children, namely, in order of seniority, King, Wai and Mr Cheung Chi Kin (“Kin”). Kin takes no part in the two actions.

9.  There is no dispute that the main asset of the Estate is the Property. The Property was acquired by the Father and the Mother in January 1993 as joint tenants. The Mother passed away in November 2000 and thereafter the Father became the sole owner of the Property.

10.  King makes the following allegations to claim beneficial ownership of the Property.

11.  In or around 2000, the Father was of advanced age and the Mother was suffering from cancer. They represented to King that she would acquire full ownership of the Property upon the death of the Father if (1) she moved into the Property to live with the Father and (2) she contributed to the repayment of the mortgage on the Property.

12.  King relied on the representations and in or around February to March 2001, she moved into the Property and began paying the mortgage.

13.  Further, in accordance with the representations, the Father executed the 2001 Will bequeathing his entire estate including the Property to King and appointed her as the sole executrix of the Estate.

14.  On 14 November 2022, King obtained grant of probate on the strength of the 2001 Will (“the Probate”). By an assent dated 28 April 2023 executed by King as the sole executrix of the Estate (“the Assent”), the remaining interest in the Property was vested in King.

15.  However, subsequent to the making of the 2001 Will, the Father executed the 2014 Will and the 2019 Will. There is no allegation that King knew their existence before her application for the Probate.

16.  Under the 2014 Will, Wai was named as the sole executor and both King and Wai were named as the only beneficiaries in equal shares.

17.  Under the 2019 Will, Wai was named as the sole executor and sole beneficiary.

Striking-out Summons

18.  It is only logical to dispose of the Striking-out Summons first and my determination will have a bearing on the Stay/Heard Together Summonses.

19.  The general principles relating to a striking out application are trite and it is sufficient to note that an order for striking out is only granted in a plain and obvious case and the burden rests on Wai to demonstrate that King’s claim is evidently unsustainable.

20.  First, Mr Yeung complains about Wai’s omission to state the precise ground in O.18 r.19, RHC relied by him to strike out the Administration Action.

21.  I am unable to understand this complaint. All the four grounds under O.18 r.19 are set out in the Striking-out Summons. Mr Yeung may be complaining that the precise sub-rule(s) are not spelled out in the margin note of the Striking-out Summons but I do not find that the omission is of any significance and causes any prejudice to King.

22.  The sole ground advanced by Mr Wong is that there is no proper contradictor to declaratory reliefs sought in the OS. His argument is as follows.

23.  Mr Wong first refers to Koo Ming Kown v Rev. Mr Mok Kong Ting (President of the Baptist Convention of Hong Kong) and Others[2018] HKCFI 967. At §20, DHCJ To held that any declaratory reliefs sought against a defendant who is not a proper contradictor are liable to be struck out. The learned deputy judge found that the 2^nd defendant in that case had no interest in opposing the plaintiff’s claim and was not in a position to give effect to the declaration sought. Hence, the 2^nd defendant could not be a proper contradictor and the claim against him must be struck out.

24.  In the present case, the Father’s interest in the Property has been vested in King being the sole executrix of the Estate on record upon the passing of the Father: Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (22^nd ed.) §5-05. Mr Wong submits that unless the Probate is revoked, King cannot be a proper contradictor to herself.

25.  On the other hand, Wai cannot be a proper contradictor unless and until he succeeds in the Probate Action and becomes the sole executor of the Estate.

26.  Mr Wong further submits that Wai has already confirmed his position that he has no standalone claims over interests in the Property apart from the interests flowing from his capacity as the sole beneficiary of the 2019 Will. Whether Wai has such interests, however, is dependent upon the outcome of the Probate Action.

27.  Mr Wong highlights the well-established principle that a beneficiary under a will has no beneficial interest in the assets of the estate and he merely has an interest in having the estate duty administered: Williams, Mortimer and Sunnucks §31-05.

28.  Thus, Mr Wong submits that unless and until Wai succeeds in the Probate Action, he is not an adverse party and has no interest in opposing King’s claim for declaratory reliefs in the Administration Action. It follows that the OS as against Wai is liable to be struck out.

29.  Mr Yeung urges this court to take a practical and commercial approach in determining who a proper contradictor is.

30.  First, he refers to Convoy Global Holdings Ltd v Kwok Hiu Kwan [2022] 1 HKC 551. At §29, Kwan VP set out the three requirements to invoke the jurisdiction of the court to grant declaratory relief: (1) that the applicant has a real interest in the subject matter of the declaration, (2) that the applicant has a real interest in obtaining a declaration against the adverse party and (3) that the adverse party is a proper contradictor.

31.  Mr Yeung then submits that where a declaration is sought based on a claim of legal right, provided that the legal right in question is contested by the parties and that each of them would be affected by the determination of the issue, there is no further requirement that the legal right needs to be vested in the defendant himself before a declaration could be made: Hong Kong Civil Procedure 2025, §15/16/1 citing In re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1 at p.22B-C per Millett LJ (as he then was).

32.  Next, he emphasizes that all that matters is the parties have a manifest and real commercial interest in the declaration sought. In Fujifilm Kyowa Kirin Biologics Co Ltd v AbbVie Biotechnology Ltd [2018] Bus LR 228 at §61, Floyd LJ said this,

“Older cases suggested that there had to be “a claim of right” by the defendant before a declaration could be made against him. The modern rule is not interpreted so rigidly, although if no claim of right has been made (or is likely to be made) this may show why a declaration would not be useful.”

33.  On these authorities, Mr Yeung submits that Wai, being the sole beneficiary of the Estate under the 2019 Will purportedly, must have a manifest and real commercial interest in the determination regarding the beneficial ownership in the Property in the Administration Action, regardless of whether he has a claim of a standalone legal right in the Property outside of the 2019 Will.

34.  Mr Yeung also points out that Wai has all along taken serious objection to the position of King regarding her allegations of promissory estoppel, common intention constructive trust and resulting trust. In light of his opposition and the effect on him by the determination of the issue of the beneficial ownership in the Property, Wai must be a proper contradictor.

35.  Lastly, Mr Yeung relies on the agreement of Wai shown in a letter of his solicitors, Messrs Leung Ki Hin & Co, dated 3 January 2024 (“the 3/1 Letter”) to be named as a defendant in the Administration Action. However, Wai agreed to be named as a defendant primarily for the purpose of striking out the Administration Action, which, in his view, is fundamentally defective.

36.  Wai’s position on the beneficial ownership in the Property is very clear. In the Administration Action, Wai does not accept the claim of King based on promissory estoppel, common intention constructive trust and/or resulting trust. In the Probate Action, Wai also seeks to revoke the Probate and set aside the Assent.

37.  In the Administration Action, King asks a declaration regarding the beneficial ownership in the Property. Despite Wai’s present lack of any beneficial interest in the Property, if his claim in the Probate Action prevails, it is likely if not inevitable that he would make a claim for beneficial interest in the Property as the sole beneficiary under the 2019 Will. In any view, Wai must have a manifest and real commercial interest in the determination regarding the beneficial ownership in the Property in the Administration Action.

38.  In the circumstances, it is prudent and indeed appropriate for King to join Wai as a defendant in the Administration Action so that Wai can be afforded a chance to put forth his case regarding the beneficial interest in the Property.

39.  Wai has failed to meet the high threshold to show that it is plain and obvious that he cannot be a proper contradictor in the Administration Action. Indeed, he is. This ground must fail. There is no fundamental defect in the Administration Action and I find no merit in the striking out application.

The Stay/Heard Together Summonses

40.  Mr Wong argues that King’s applications by the Stay/Heard Together Summonses is an attempt to circumvent the two distinct jurisdictions and functions of the courts in probate actions and administration proceedings via backdoor.

41.  Mr Wong makes a detailed submission on the differences between probate actions and administration actions. The differences are well-known and Mr Yeung does not have any argument about such differences. I do not agree that they have anything to do with King’s applications, which to me, appear to serve case management purposes primarily.

42.  I have rejected the striking out application. I should then decide on how the two actions should be determined. The fall-back position of Wai is that the Administration Action should be adjourned sine die with liberty to restore.

43.  Mr Yeung submits that the Probate Action should be stayed pending resolution of the Administration Action or alternatively the two actions should be tried together. He helpfully refers to Poon Ka Man Jason v Cheng Wai Tao [2018] HKCFI 771 at §§36-39 for the legal principles relating to stay applications explained by Au Yeung J:

“The court has discretion, as a matter of case management, to grant a stay of proceedings generally or until a specified date or event: High Court Ordinance, Section 16(3); Order 1B, rule 1(2)(e) of the Rules of the High Court (“RHC”).

Where, as here, the action was commenced as of right, the court should only grant a stay when there are “very good reasons” and in “rare and compelling circumstances”. The stay must not cause injustice to the Plaintiff, and the Defendants must show that continuing the proceedings would be unjust to them. See: Zhang Xiuhong v Liu Wenchen & ors (HCA 2118/2012, 20 July 2017), §34, per Au-Yeung J, citing Ng J’s judgment in AIG Europe Ltd & ors v Fast-Link Express Ltd & ors (HCAJ 114/2014, 10 January 2017), §§9-13. The ultimate question is what would serve the ends of justice.

Exercise of discretion would involve balancing between (1) possible wastage of Court’s time and resources and also parties’ time and costs (if there is no stay) on the one hand and (2) possible delay of the proceedings for a short period of time (if there is a stay) on the other hand: see The Al Dhabiyyah [1999] 4 HKC 414, at p 420A-F.

The court must bear in mind that the underlying objectives of the court is to increase cost-effectiveness of court proceedings; ensure that a case is dealt with as expeditiously as is reasonably practicable; promote reasonable proportion and procedural economy in the conduct of proceedings; and to facilitate settlement of disputes: Order lA, rule 1(a), (b), (c) and (e) of the RHC.”

44.  In her 2^nd Affirmation, King indicates that if her claim in the Administration Action fails, she would not contest the Probate Action.

45.  Mr Yeung highlights to this court that Wai has registered a sealed copy of the writ issued in the Probate Action in the Land Registry against the Property. The position of Wai is well protected.

46.  There are indeed some countervailing factors to be considered. In my view, it is only logical and reasonable that the Probate Action must be resolved first.

47.  First and foremost, I agree with Mr Wong that the validity of the 2001 Will and the 2019 Will must be determined first. Quite apart from the fact that it is a matter of principle, such a determination would resolve the question as to who the proper executor/executrix of the Estate and in turn who the proper contradictor to the Administration Action is.

48.  Mr Yeung argues that where a person is both the beneficiary under a will and an executor, he can defend claims adverse to the estate in his capacity as the beneficiary (and not necessarily as executor): Chan Man Pan v Fu Fung Yan Cafornia [2018] 2 HKC 335 (CA) at §§4.12, 4.22 per Cheung JA.

49.  However, this is not the situation here. In Chan Man Pan, there was no issue about the validity of the will and the appointment of the executor. It was common ground that the applicant asking for a Beddoe order in the administration action was both an executor and one of the beneficiaries. In the present case, the validity of the 2001 Will can only be determined in the Probate Action. Without such a determination, whether or not King is a beneficiary is a live issue and she cannot defend her own claim as a beneficiary in the Administration Action.

50.  There is no dispute that there are overlapping issues in the two actions. The Probate Action covers most if not all of the factual allegations in the Administration Action but not vice versa.

51.  I agree with Mr Wong that the outcome of the Probate Action may be dispositive of the Administration Action. If Wai fails in the Probate Action, it is doubtful whether King would have the incentive to proceed with the Administration Action and whether Wai would defend the same.

52.  I also take into account the fact that the progress of the Probate Action is ahead of the Administration Action. Instead of incurring more costs and using resources to expedite the Administration Action to keep it on par with the Probate Action, it makes more sense to stay the latter pending the determination of the former.

53.  In the premises, I come to the conclusion that the Administration Action should be stayed pending the determination of the Probate Action. The evidence in the Probate Action should be admissible in the Administration Action and the trial of the Administration Action should be heard by the same judge.

Conclusion and orders

54.  For the reasons given above, save the alternative relief in the Striking-out Summons, I dismiss the same.

55.  On the Stay/Heard Together Summonses, I order that the Administration Action should be stayed pending the determination of the Probate Action.

56.  For the Striking-out Summons, there is no reason why costs should not follow the event. The striking out application is unmeritorious and should not have been made. Though I accept that the Administration Action should be stayed, I believe that the stay only last until the determination of the Probate Action. In any event, it is unnecessary for Wai to take out the Striking-out Summons to make such a suggestion, which could be made at the hearing of the Stay/Heard Together Summonses.

57.  Thus, I make an order nisi that Wai should pay King her costs of and occasioned by the Striking-out Summons, to be taxed if not agreed.

58.  For the Stay/Heard Together Summonses, though I do not accept any of King’s suggestions, I opine that they have provided this court with the chance to make the necessary case management decision in the two actions. I believe that costs in the cause for both Summonses would be appropriate. Accordingly, I so order on a nisi basis for each of the Stay/Heard Together Summonses.

59.  Lastly, I thank Mr Wong and Mr Yeung for their helpful submissions.