WANG DIN SHIN v. NINA KUNG

CACV 17/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 17 OF 2004

(ON APPEAL FROM HCAP NO. 8 OF 1999)

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DECISION

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Hon. Stock JA:

1.  I have had the advantage of reading in draft the judgment of Yuen JA that follows and I respectfully agree with it. 

Hon. Yuen JA:

2. The history of the proceedings between the parties to this probate     action concerning the estate of Wang Teh Huei (“the Deceased”),     has been set out in the Reasons for Judgment of Stock JA in     CACV 275/2004 handed down on 21 January 2005.

Wife’s applications

3. Briefly, on 25 September 2003, the Defendant (“Mrs Wang”) had issued a summons seeking the removal of the Joint Administrators (“the Removal Application”).  In the same summons, she also sought an order that the application for removal of the Joint Administrators be heard by a judge other than Chu J and Chung J (“the Recusal Application”). 

Joint Administrators’ applications

4. On 7 November 2003, the Joint Administrators issued a summons for an order that the Removal Application be adjourned until after the determination of the probate appeal (“the Adjournment Application”).  In the same summons, they also sought directions on the capacity in which Mrs Wang should be allowed to advance the Removal Application (“the Capacity Application”).

Refusal of Recusal Application

5. The Recusal Application was heard first.  On 31 December 2003, Chu J dismissed the Recusal Application.

Costs order of Recusal Application

6. Chu J also gave an order nisi that: 

(a) Mrs Wang pay the costs of the Joint Administrators on an indemnity basis;

(b) Mrs Wang pay the costs of the Plaintiff on a party and party basis;

(c) the Joint Administrators’ own costs be taxed on a trustee basis and be paid out of the estate.

7. On 12 January 2004, Mrs Wang applied for a variation of the costs order nisi.  Written submissions were sent to Chu J.

8. On 8 September 2004, Chu J ordered that the costs order nisi be made absolute and further ordered that the costs of the application to vary the order nisi should be borne by Mrs Wang, also to be taxed on an indemnity basis.

Recusal Appeal

9. Prior to that, on 26 January 2004, Mrs Wang had lodged the present appeal - CACV 17/2004 - against the refusal of the Recusal Application (“the Recusal Appeal”).  Originally the appeal did not include an appeal from the order for indemnity costs as the application for variation had yet to be determined.  The appeal from the indemnity costs order was made the subject of a Supplementary Notice of Appeal filed on 22 September 2004.  The Recusal Appeal was fixed for hearing before this court on 30 November 2004.

Adjournment of Removal Application

10. Meanwhile, on 20 August 2004, Chu J ordered the adjournment of the Removal Application pending the determination of the probate appeal.  Although the judge expressed her views on the Capacity Application, she found it unnecessary to make any orders on it as she had ordered the Removal Application to be adjourned. 

11. Mrs Wang lodged an appeal against this order (“the Adjournment Appeal”).  This is the subject of CACV 275/2004.  It was fixed for hearing before this court on 17 March 2005.     

Hearing on 30 November 2004

12. On 30 November 2004, the parties appeared before us for the hearing of the Recusal Appeal.  However we considered (as did the parties) that it made better sense for the Adjournment Appeal to be heard before the Recusal Appeal.  Accordingly we directed that the Adjournment Appeal be heard on 11-12 January 2005.  We made no order for the costs of the adjournment of the Recusal Appeal on 30 November 2004, for reasons which appear in our Reasons for Decision On Costs handed down on 15 December  2004.

Re Chime Corp Ltd

13. On 13 December 2004, the Court of Final Appeal delivered its judgment in Re Chime Corp Ltd [2004] 3 HKLRD 922, an interlocutory appeal in a corporate dispute concerning a company controlled by the Deceased and Mrs Wang.  At the end of his judgment, Lord Scott NPJ made certain observations (para. 66-68) on the wisdom of putting back further proceedings between the estate and Mrs Wang until the Court of Final Appeal’s final determination of the probate appeal.

Hearing on 11-12 January 2005

14. The Adjournment Appeal was heard by this court (Stock and Yuen JJA and Sakhrani J) on 11-12 January 2005.  Partly by reason of Lord Scott’s observations and partly by reason of the fact that Kwan J had granted a stay of certain proceedings commenced by the Joint Administrators (which proceedings had been the cause of complaint by Mrs Wang in the Removal Application), the court dismissed the Adjournment Appeal.  However it allowed part of Mrs Wang’s appeal against Chu J’s order of costs of the Adjournment Application, and it set aside the order for taxation on an indemnity basis and replaced it with an order for taxation on the party and party basis.  Reasons for Judgment were handed down on 21 January 2005.

Consent orders for disposal of Recusal Appeal

15. The court also made an order by consent that the hearing date of 17 March 2005 for the Recusal Appeal be vacated and that that appeal be adjourned sine die. 

16. As mentioned in paras.8- 9 above, at the time the Recusal Appeal was lodged in January 2004, there was no appeal from Chu J’s order for costs of the Recusal Application, as the application for variation of the costs order nisi was not determined until 8 September 2004, and a Supplementary Notice of Appeal was filed on behalf of Mrs Wang on 22 September 2004 ("the Recusal Costs Appeal"). 

17. By consent on 12 January 2005, the court gave directions for the parties to lodge written submissions in respect of the Recusal Costs Appeal.  Directions were also given for written submissions in respect of the costs of the Recusal Appeal, other than the costs of the hearing on 30 November 2004 for which (as mentioned in para. 12 above) a decision had already been made that there be no order as to costs.

18. Written submissions were duly provided on 7 February 2005 by leading counsel for Mrs Wang and on 28 February 2005 by solicitors for the Joint Administrators.  The Plaintiff declined to lodge submissions as the issues on the Recusal Costs Appeal did not affect him directly.

Recusal Costs Appeal

19. It has been contended on behalf of Mrs Wang that

(1)	she should only be ordered to pay the costs of the Recusal Application to the Joint Administrators on a party and party basis, instead of on an indemnity basis;
(2)	the Joint Administrators’ own costs should be reserved to the judge hearing the Removal Application (although it has been adjourned pending determination of the probate appeal); and
(3)	the costs of the application to Chu J for variation of the order nisi and the costs of the Recusal Costs Appeal should be paid to Mrs Wang by the Joint Administrators personally, such costs to be taxed, if not agreed, on a party and party basis.

20. The Joint Administrators have submitted that

(1)	the order for costs on an indemnity basis was one made in the exercise of the judge’s discretion, and was justified as the Recusal Application was bound to fail and the estate should not be burdened with any shortfall in costs;
(2)	the Joint Administrators’ own costs should be paid out of the estate on a trustee basis, as had been ordered by this court (Stock, Yuen JJA and Sakhrani J) in the Adjournment Appeal; and
(3)	there is no ground for a personal order for costs against the Joint Administrators.

21. In para. 13 of her Decision on Costs dated 8 September 2004, Chu J identified the considerations relevant to her decision to award indemnity costs.  She said:

"	(1)	The recusal application is related to the defendant’s application to remove the Administrators pursuant to section 33(3) of the Probate and Administration Ordinance cap. 10 and/or the court’s inherent jurisdiction.  Both the recusal and the removal applications are applications made within the administration of the estate.
	(2)	Contrary to the defendant’s contention, the removal application is not a piece of hostile litigation between a beneficiary and a trustee.  It does not determine the rights between the defendant in her capacity as potential beneficiary and the Administrators as trustee of the Estate.
	(3)	To award the Administrators’ costs on party-and-party basis would result in the Estate having to bear those parts of the Administrators’ costs that are not recoverable inter partes.
	(4)	As explained in the Decision, the recusal application stems entirely from the defendant’s misconception of the nature and basis of her removal application.  It is not a necessary step in the removal application.
	(5)	In the circumstances, it will not be right to subject the Estate to the shortfall of the costs incurred for an unnecessary and misconceived application brought by the defendant".

Chu J also drew an analogy with the indemnity costs order made by the Court of Appeal (by a majority) in Chui Pak-ming Norman v Leung Sai-lun Robert [2001] 2 HKC 286 (an appeal from a Beddoe order).

22. I have reminded myself of the principle that an order for costs is in the discretion of the judge, and that an appellate court should be even more cautious when the issue before it relates to the basis of taxation of costs.  However, I do not consider that the matters considered by the judge justified an order on the indemnity basis. 

23. It is now established that for an award of indemnity costs to be made, there has to be some special and unusual features (Town Planning Board v Society for the Protection of the Harbour Ltd (No. 2) [2004] 7 HKCFAR 114).  With respect, I do not agree with the judge that there were any special or unusual features in this case meriting an indemnity order.   This court (Stock, Yuen JJA and Sakhrani J) has, in its Reasons for Judgment in the Adjournment Appeal handed down on 21 January 2005, explained (at para. 29) why it thought that there were no special and unusual features in those proceedings and that Chu J’s order for indemnity costs for the Adjournment Application could not be supported.  The same reasoning applies to the Recusal Application which stemmed from the Removal Application.

24. In her Decision on Costs in the Recusal Application, Chu J referred in para. 13(1) to the applications for removal and recusal as being "within the administration of the estate", and in para. 13(2) and para.14 to the applications not being "ordinary hostile litigation" between a beneficiary and a trustee.  Apparently these were relevant to her decision to make an indemnity costs order. 

25. However, the issue whether the proceedings were “ordinary hostile litigation” or were “within the administration of the estate”  is only relevant to a decision whether costs should be borne by an unsuccessful litigant-beneficiary or whether the costs of all parties should be borne by the estate (Alsop Wilkinson v Neary [1996] 1 WLR 1220, 1223H-4G).  In Mrs Wang’s application for variation of the costs order nisi, she had not contended that the costs of the Recusal Application should be borne by the estate (Chu J’s Decision on Costs, para.3). 

26. But even if it were relevant to consider whether the Removal and Recusal Applications were "ordinary hostile litigation", I think the answer must be that they were.  The Recusal Application and its source the Removal Application were (at least in part) a "beneficiaries dispute" in Lightman J’s classification of trust litigation in  Alsop Wilkinson.   A "beneficiaries dispute" means a dispute between the trustees and a beneficiary (including a potential beneficiary) as to the propriety of any action which the trustees have taken, and may take the form of an application to remove the administrators (Alsop Wilkinson, p.1224B-C) – exactly the situation in the present case.  A beneficiaries dispute is regarded as ordinary hostile litigation (Alsop Wilkinson, p.1224 G).   This view was adopted in Norman Chui v Robert Leung (at p.295). 

27. So, the Recusal Application having stemmed from the "ordinary hostile litigation" of a Removal Application, costs should follow the event, and Mrs Wang did not dispute her liability to pay the costs of the Recusal Application.  She only disputed the basis of taxation.  But as to the basis of taxation, the issue whether the proceedings were "ordinary hostile litigation" or "within the administration of the estate" is irrelevant.

28. It may be that what the judge meant was that since Mrs Wang’s counterclaim has been dismissed, she was simply no longer even a potential beneficiary.  But (as has been noted in para. 29 of the Reasons for Judgment in the Adjournment Appeal handed down on 21 January 2005), it was accepted that Mrs Wang was at the date of the Removal Application a contingent (or potential) beneficiary and to that end was entitled to pursue the application.

29. Further, the indemnity costs order made by the Court of Appeal (by a majority) in Norman Chui v Robert Leung did not establish any precedent that a successful estate party should be awarded costs on an indemnity basis in administration proceedings simply because it should not be burdened with a shortfall.  As Le Pichon JA noted in that judgment,  that was a case where the appeal had no apparent prospect of success from the outset. 

30. In the present case, Chu J considered the Recusal Application was misconceived as it “stems from the defendant’s misconception of the nature and basis of her removal application.  It is not a necessary step in the removal application”.  In my view, the Recusal Application was understandable given the confidential information that Chu J and Chung J had received in their capacity as administration judges.  Before any order had been made in the Capacity Application, I do not think it could be said that the Recusal Application had no apparent prospect of success from the outset.

31. In the circumstances, I take the view that the judge’s order for indemnity costs must be set aside and in its place I would order that the costs of the Recusal Application should be paid by Mrs Wang to the Joint Administrators on a party and party basis only.

32. However, as for the submission that the Joint Administrators’ own costs should be reserved to the judge hearing the Removal Application, I do not see any grounds for such an order.  First, the Removal Application may or may not proceed, depending on the judgment of the Court of Final Appeal in the probate appeal.  More importantly, as far as the Recusal Application is concerned, there is no evidence that the Joint Administrators have been acting for their personal benefit.  Accordingly, the Joint Administrators’ own costs should in the usual way be taxed on the trustee basis and be paid out of the estate. 

33. Finally, as for the costs of the application to Chu J for variation of the order nisi and the costs of the Recusal Costs Appeal, Mrs Wang has been successful in overturning the judge’s order on the basis of taxation of costs, but has failed in her application that the Joint Administrators’ own costs be reserved to the judge hearing the Removal Application.  In the circumstances, I think the most appropriate course is to make no order for costs save that the Joint Administrators’ own costs of the application for variation of the order nisi and their costs of the Recusal Costs Appeal be taxed on a trustee basis and be paid out of the estate.

Hon. Waung J:

34.      I agree.

Hon. Stock JA:

35. It follows that the appeal is allowed to the extent specified and that:

(1)	the order dated 31 December 2003 for indemnity costs of the Recusal Application is set aside and in place thereof there will be an order that the costs thereof be paid by the Defendant to the Joint Administrators on a party and party basis;
(2)	the appeal against the order of Chu J. on 31December  2003 that the Joint Administrators’ costs be taxed on the trustee basis and be paid out of the estate is dismissed;
(3)	the order of 8 September 2004 that the costs of the application to vary the costs order nisi be paid on an indemnity basis is set aside and in place thereof there will be no order as to costs, save that the Joint Administrators’ own costs of that application be taxed on a trustee basis and be paid out of the estate;
(4)	there will be a costs order nisi that there be no order as to the costs of the Recusal Costs Appeal save that the Joint Administrators’ own costs of the Appeal be taxed on a trustee basis and be paid out of the estate.