CHAN SIU MAN v. LAM JENNY AND OTHERS

CACV 186/2012 AND CACV 187/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 186 AND 187 OF 2012

(ON APPEAL FROM HCMP NO. 1282 OF 2010)

________________________

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan JA:

1.  The question raised in these appeals is whether an application under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the Inheritance Ordinance”) by a person claiming to be dependent on the deceased, is abated by the death of the applicant. In the decision of Deputy High Court Judge M Chan (as she then was) on 30 July 2012, she answered the question in the affirmative, and hence she struck out the application of the deceased plaintiff under the Inheritance Ordinance and dismissed the application of the personal representative of the deceased plaintiff for an order to carry on the proceedings.

2.  CACV 186/2012 is the appeal against the strike out order.  CACV 187/2012 is the appeal against the refusal of an order to carry on the proceedings; leave to appeal this decision was given by us at the outset of the hearing.

The background

3.  The relevant background matters, taken largely from the decision of the judge, may first be stated as follows.

4.  The deceased, Lam Kam Wai (“the deceased”), who died intestate on 8 September 2006, was survived by six children.  Four of them were born to him and his former wife.  The other two were born to the deceased and Madam Chan Siu Man (“Madam Chan”).  Madam Chan had cohabited with the deceased since 1988.  Their first child, a daughter named Lam Ka Wai Rebecca (“Rebecca”), was born in 1989.  The deceased and his former wife were divorced in 1993.  Letters of administration of the deceased’s estate were granted in November 2009.

5.  On 29 March 2010, Madam Chan issued an originating summons against the personal representatives of the deceased’s estate (later re-named as the 1^st defendants; “the 1^st defendants”) pursuant to section 3 of the Inheritance Ordinance, seeking financial provision out of the deceased’s estate.  She claimed that she and her two children had been maintained by the deceased throughout the 18 years of their cohabitation until his death, and that the deceased had provided for them in all respects of their lives.  She relied on section 3(1)(ix), claiming that she was a person who immediately before the death of the deceased was being maintained wholly or substantially by him.  She sought a declaration that she be entitled to exclusive occupation for life of the residence she shared with the deceased, interim periodical payments, periodical payments, lump sum payment, and an order for the transfer to her of property comprised in the deceased’s estate.

6.  On 25 October 2010, Madam Chan issued a summons for interim payment.  On 18 March 2011, she issued a summons seeking leave to accept the sanctioned offer made by the 1^st defendants by letter dated 10 January 2011[1] and to withdraw her summons of 25 October 2010 for interim payment.  Chung J made an order on 23 March 2011 giving leave to Madam Chan to accept the sanctioned offer, he made no order on paragraph 1 of Madam Chan’s summons of 25 October 2010 (for interim payment out of the deceased’s estate), and adjourned the question of costs of the summonses of 25 October 2010 and 18 March 2011 for argument to a date to be fixed.  The originating summons was adjourned sine die with liberty to restore.

7.  On 19 January 2012, Chung J ordered that the four children born to the deceased and his former wife be joined as the 2^nd defendants in the proceedings and the two children born to the deceased and Madam Chan be joined as the 3^rd defendants.

8.  Before the originating summons was heard, Madam Chan passed away on 19 May 2012.  She left a will appointing her daughter Rebecca as the executrix of her estate.  Probate was granted to her on 17 July 2013.

9.  On 1 June 2012, Rebecca issued an ex parte application for an order that the further proceedings in this action be carried on by her as the personal representative of Madam Chan against the defendants, and that she should cease to be the first-named 3^rd defendant.

10.  The 2^nd defendants countered with a summons on 8 June 2012 for an order that Madam Chan’s claim be struck out on the ground that she had passed away and that the cause of action under the Inheritance Ordinance does not survive her death.

11.  The judge gave directions on 22 June 2012 that the strike out application and the application for carrying on the proceedings be heard together on 3 July 2012.  As mentioned earlier, she gave judgment on 30 July 2012 ordering that Madam Chan’s application by originating summons be struck out and dismissing Rebecca’s application for an order that further proceedings in the action be carried on by her.

12.  On 9 October 2012, the judge varied the costs order nisi she made on 30 July 2012 and ordered there be no order as to the costs of this action, inclusive of the orders for costs reserved made prior to 22 June 2012, and that the costs of the application for a carry on order and of the strike out application be paid by Madam Chan’s estate to the 2^nd defendants.

The judgment below

13.  The judge considered the relevant provisions in the Inheritance Ordinance, and the meaning of “cause of action” as used in section 20(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”)[2], and as explained in Letang v Cooper [1956] 1 QB 232 at 242 to 243 and Sugden v Sugden [1956] P 120 at 135.

14.  She took into account two English authorities dealing with the question whether the right to apply for financial provision under the Inheritance (Provision for Family Dependents) Act 1975 (“the 1975 Act”), upon which the Inheritance Ordinance was based, was a cause of action that could survive the death of the applicant.

15.  In Whytte v Ticehurst [1986] Fam 64, Booth J held that the surviving widow, who applied under the 1975 Act but had died before the substantive hearing, had no enforceable right against the deceased’s estate and hence no cause of action that could survive her death and be enforced by her personal representative.  The reasoning of this case was followed in In re Collins, Deceased [1990] Fam 56, in which an application was made by a son of the deceased but he was adopted three months before the application was made.  Hollings J dismissed the son’s application holding that the right to apply for provision was not a cause of action and a fortiori not an “interest expectant” in the form of a vested right that would be preserved on the child’s adoption by the Adoption Act 1976, and as the son had ceased to qualify as a child of the deceased under the 1975 Act on the date of his adoption, the court had no jurisdiction to accede to his application.

16.  The judge also referred to Tam Mei Kam (bankrupt) [2012] 4 HKLRD 345, in which Barma J (as he then was) held that the maintenance payments made to the bankrupt under the Inheritance Ordinance are property personal to the bankrupt and do not form part of the bankruptcy estate.

17.  Having regard to the statutory provisions, in particular sections 3, 4 and 5 of the Inheritance Ordinance, and the authorities referred to above, the judge arrived at the conclusion that at most, what Madam Chan had at the time when she issued the proceedings and prior to her death was the right to make a claim under section 3. There was no “enforceable right” at the time of her death to any relief from the deceased’s estate, or to any of the orders for reasonable provision which the court can make under section 4, prior to her dependence and case for maintenance having been established to the satisfaction of the court, and prior to the exercise of the court’s discretion having regard to the relevant factors set out in section 5, and as known at the date of the hearing of the application[3].

18.  For this reason, the judge was not satisfied that proof of the existence of the factual situation of Madam Chan’s dependence on the deceased by virtue of her having been maintained by him immediately before his death would have “entitled” her to relief under section 4, or that there was any enforceable right or vested interest in her at the date of her death, which can be said to constitute a cause of action which can survive for the benefit of her estate under section 20(1) of LARCO[4].

19.  Rebecca, in her capacity as Madam Chan’s personal representative, brought these appeals against the judge’s decision.  The 1^st and 3^rd defendants have not taken part in the appeals.  Leading counsel for Rebecca and for the 2^nd defendants, neither of whom had appeared below, have given this court a much fuller citation of the relevant authorities, covering not just English cases, but cases in Commonwealth countries.

The arguments for Rebecca

20.  Mr Horace Wong, SC[5] advanced these arguments on appeal on behalf of Rebecca.

21.  The starting point is section 20(1) of LARCO, which made “comprehensive provision” for the survival of causes of action “over the whole field” to which the old common law maxim actio personalis moritur cum persona[6] had applied (Harris v Lewisham NHS Trust [2000] 3 All ER 769 at 776g to j, per Mummery LJ, quoting from Ronex Properties Ltd v John Liang Construction Ltd & Ors [1983] QB 398 at 405F to G).  It is “wrong to hark back” to the pre-LARCO position by asking whether the rights conferred by and actions under the Inheritance Ordinance are ‘personal actions’ and whether they are assignable by operation of law.  This approach is wrong because it disregards the change in the law made by LARCO.  “The point is not whether the action is ‘personal’ or whether it is assignable, but whether the person who has died had a ‘cause of action’.  If he had a cause of action, the benefit of it passed to his estate.”  So the question for this court is whether Madam Chan’s application under the Inheritance Ordinance was a “cause of action” within the meaning of section 20(1) of LARCO.

22.  A statutory cause of action is not any less a cause of action in the sense of Letang v Cooper, supra (“a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”) merely because the remedy or power is discretionary, see Sugden v Sugden, supra at 135 per Denning LJ and at 136 per Hodson LJ.

23.  The reasoning in Whytte v Ticehurst is flawed, in that the judge wrongly treated a claim for financial provision in matrimonial cases as analogous to a claim for financial relief under the 1975 Act.  Financial provisions under the Matrimonial Causes Act 1973 are ancillary reliefs in connection with divorce proceedings.  Ancillary relief cannot be described as a “separate and distinct cause of action” but is “subordinate to, connected with, and integrally related to” the divorce proceedings (Philp v Philp [1989] FJHC 23 at §§[11] and [12]).  So any claim for ancillary relief is abated with the cause of action for divorce on the death of either party to the marriage (Stanhope v Stanhope (1886) 11 PD 103 at 111; In re Seaford, deceased [1968] P 53 at 69E).  In contrast, financial provision under the Inheritance Ordinance is not in the nature of an ancillary relief, and the applicant need not have a marriage relationship with the deceased.

24.  In the present case, the basis of Madam Chan’s application was not as the spouse or former spouse of the deceased[7], but as a person who immediately before the deceased’s death was being maintained wholly or substantially by the deceased[8].  Her cause of action under the Inheritance Ordinance was founded upon the following elements being established: (a) the deceased died domiciled in Hong Kong or having been ordinarily resident in Hong Kong at any time in the three years immediately preceding his death[9]; (b) Madam Chan survived the deceased[10]; (c) she was being maintained wholly or substantially by the deceased immediately before the death of the deceased[11]; and (d) the disposition of the deceased’s estate effected by the law relating to intestacy was not such as to make reasonable financial provision for her[12].

25.  Similar observations were made by Bell J of the High Court of New Zealand in Moffat v Barrett, CIV-2010-404-7116, 12 September 2011, at §[51] regarding what elements are necessary to plead a cause of action under the Family Protection Act 1955[13].

26.  On a proper construction of sections 3 to 5, none of the conditions required to be proved for a claim depends on the life of the applicant.  The death of the applicant only affects the quantum of the financial provision that may be granted, as financial provision would then be confined to the period between the death of the deceased and the death of the applicant.  In the present case, it would be for a period of six years between the death of the deceased in September 2006 and Madam Chan’s death in May 2012.  It is incorrect to assume that the financial provision made under the Inheritance Ordinance is only to benefit an applicant personally during his lifetime, as the court is empowered to order a transfer of property or lump sum payment to the applicant[14].

27.  The cause of action under the Inheritance Ordinance arose on the date of the death of the deceased, that being the time by reference to which the court would determine whether “the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant”[15].  See Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508, per Dixon CJ; Dun v Dun [1959] AC 272 at 288 to 289, per Lord Cohen; White v Barron (1980) 144 CLR 431 at 441, per Mason J; Re Farrow [1987] 1 FLR 205 at 211, per Hollings J; and Bondelmonte v Blanckensee [1989] WAR 305 at 307, per Malcolm CJ.

28.  In cases decided in Queensland[16] (King v Condon [2009] 2 Qd R 143), New Zealand[17] (In Re Hawke (Deceased) [1957] NZLR 152; In re Shrimpton (Deceased) [1962] NZLR 1000) and Canada[18] (Re McCaffery [1931] 4 DLR 930), it was held that the cause of action for a statutory claim for the maintenance of dependants arose on the death of the deceased, and upon the death of the applicant, it survived for the benefit of the applicant’s estate and the personal representative of the applicant was allowed to be substituted as a party to the proceedings on the death of the applicant.

29.  For the above reasons, Madam Chan had vested in her a cause of action in respect of her claim under the Inheritance Ordinance that survived her death.  Her estate should be compensated for the expenses incurred for her maintenance at an adequate level between the deceased’s death and her own, insofar as those expenses exceeded the interim maintenance she had received by the sanctioned offer of the 1^st defendants.

The arguments for the 2^nd defendants

30.  The arguments of Mr Anthony Neoh, SC[19] for the 2^nd defendants may be stated as follows.

31.  The primary objective of the Inheritance Ordinance is the provision of reasonable maintenance to the dependants of the deceased, not to provide legacies or rewards for meritorious conduct (In re Coventry, Deceased [1980] Ch 461 at 474G; ACLS v HSB(T)L [2013] 2 HKLRD 444 at 450, §23).  It provides for nine classes of persons who may apply for financial provision[20].  The applicants have only a right to apply.  Whether this right to apply would subsequently be crystallised into an enforceable right is conditional upon proof of the relevant facts and matters at the date of the hearing[21] and the making of the order[22].

32.  On a proper construction of the combined effect of the material provisions[23], whilst an applicant may have a statutory right to apply for financial provision, to establish a right to receive maintenance, the applicant must prove at the date of the hearing, the disposition of the deceased’s estate is not such as to make reasonable financial provision for her.  Whether the applicant has a right to receive maintenance enforceable against the deceased’s estate is to be ascertained by the relevant facts and matters known to the court at the date of the hearing.

33.  The English courts have determined that on an application under the 1975 Act (upon which the Inheritance Ordinance was based and the relevant provisions of which are largely similar to our legislation[24]), until the court granted relief, the applicant had no cause of action within the meaning of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (equivalent to section 20(1) of LARCO) that could survive her death.  The statutory provisions were intended to relate to the present needs of the applicant at the time of the hearing and the Act did not anticipate there should be a cause of action enforceable by the applicant’s personal representatives.  See Re R [1986] Fam Law 58; Whytte v Ticehurst, supra; Re Bramwell (Deceased) [1988] 2 FLR 263; In re Collins, Deceased, supra.

34.  The same conclusion was reached in McEvoy v The Public Trustee (1989) 16 NSWLR 92 upon similar legislation in the New South Wales[25] at 101G.

35.  Cases decided in Queensland, New Zealand, Western Australia, which held that the applicant had an accrued right to receive maintenance as at the date of the death of the deceased are distinguishable, as a provision similar to section 5(7) of the Inheritance Ordinance is absent from the legislation in those jurisdictions.  They should not be followed in Hong Kong.

If there was an enforceable right – construction of the statute

36.  The answer to the question whether a cause of action survived the death of Madam Chan depends on the true construction of the relevant provisions in the Inheritance Ordinance.  There is no dispute that for there to be a cause of action vested in her at the time of her death within the meaning of section 20(1) of LARCO, her claim for financial provision must be an enforceable right, not “mere hopes or contingencies” (Sugden v Sugden, supra at 135), or that the whole question if she was entitled to anything out of the deceased’s estate was still “in the melting pot” (In re Ferrar’s Application [1966] P 126 at 140D).

37.  Section 3(1) provides for the elements that must be fulfilled for an application to be made.  They are the four elements submitted by Mr Wong as mentioned earlier.  The establishment of those elements gives a right to apply under the statute, on the ground that “the disposition of the deceased’s estate … is not such as to make reasonable financial provision for the applicant”.  It is pertinent to note the definition of “reasonable financial provision” in section 3(2).  For the purpose of an applicant under section 3(1)(ix) (being the case of Madam Chan), it means “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance” (section 3(2)(b)).

38.  Section 4(1) empowers the court to make various kinds of orders in its discretion, “if it is satisfied that the disposition of the deceased’s estate … is not such as to make reasonable financial provision for the applicant”.

39.  Section 5 provides for the matters to which the court should have regard in exercising its powers under section 4.  The material parts of this provision read as follows:

“(1) Where an application is made for an order under section 4, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters -

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 4 has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

…

(7) In considering the matters to which the court is required to have regard under this section, the court shall take into account the facts as known to the court at the date of the hearing.

(8) In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities.”

40.  A two-stage process is provided for in section 5(1).  In the first or triggering stage, the court is to “[determine] whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant”.  If the answer to that is in the negative, in the second stage, the court is to “[determine] whether and in what manner it shall exercise its powers under [section 4]”.  In both the first stage and the second stage, the court “shall … have regard to the following matters”, as provided in (a) to (g) of section 5(1).  And “[in] considering the matters to which the court is required to have regard under [section 5]”, i.e. the matters in sections 5(1) to (6), no matter whether this is in the first stage or the second stage, “the court shall take into account the facts as known to the court at the date of the hearing”, by virtue of section 5(7).

41.  Thus, the “financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance” (section 3(2)(b)) – namely, “reasonable financial provision” in the first or triggering stage – is to be determined by “[taking] into account the facts as known to the court at the date of the hearing” (section 5(7)).  Quite clearly, it is not the case that all the facts the existence of which would entitle a person to obtain relief under the statute are present at the time the application is made.  In that sense, there is no accrued right to relief and no cause of action vested in an applicant when the application is made.

42.  Other parts of section 5 make it even clearer that an applicant living at the time of the hearing is envisaged in the statute.  One of the matters to which the court is required to have regard, under section 5(1)(a), is “the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future”.  The court is to have regard to this in determining whether the disposition of the deceased’s estate is such as to make reasonable financial provision for the applicant (the first stage), and in determining whether and in what manner it shall exercise its powers under section 4 (the second stage).  In considering the financial resources of the applicant, “the court shall take into account his earning capacity” (section 5(8)); this would be meaningless in the case of a deceased applicant.

43.  Further, as noted by Lam JA (as he then was) in ACLS v HSB(T)L at §§28 and 29, the statutory scheme “strives to balance the interests of all the parties” with a “theme of fairness between different beneficiaries”, as borne out by sections 4(4) and 5(1).  Thus, in balancing the interests of all relevant parties, under section 5(1), apart from having regard to “the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future” (section 5(1)(a)), the court is also to have regard to “the financial resources and financial needs which any other applicant for an order under section 4 has or is likely to have in the foreseeable future” (section 5(1)(b)), as well as “the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future” (section 5(1)(c)).  In each of these instances, the court is directed to consider the situation at present as at the time of the hearing and the foreseeable future.  It would be very odd if the balancing of interests were to be carried out as between a deceased applicant and other applicants and any beneficiary who are living.

44.  As noted by Booth J in Whytte v Ticehurst, supra at 70D to E, if the position were otherwise, it would lead to the “extraordinary result … of a contest between the beneficiaries of two estates in the determination of which the court would have the well-nigh impossible task of assessing the matters to which the statute requires it to have regard, many of which are clearly based upon the fundamental assumption that one of the parties to the marriage[26] survives at the date of the hearing.”  And Sheldon J in Re Bramwell (Deceased), supra at 268B was of the same view: “The opposite conclusion … would be likely to raise considerable difficulties as to the basis upon which such a claim was to be assessed, if not significantly to diminish its value.”

45.  Leaving aside any decided cases, purely on a proper construction of the statute, I would agree with the judge that Madam Chan did not have a cause of action vested in her in respect of her claim at the time of her death.

46.  I turn to consider some of the authorities cited to see whether they would cast a different light on this question.

If there was an enforceable right – the case law

47.  The obvious point must be made at the outset that cases decided in foreign jurisdictions in this context have to be considered with caution, as they were based on their own statutes.

48.  Mr Wong advanced these propositions to support his contention that there was a cause of action vested in Madam Chan at the time of her death:

(1) The relevant time to determine whether reasonable financial provision was made for the applicant was the date of death of the deceased.  The ultimate question must remain one of adequate provision for proper maintenance and support as at the date of the deceased’s death.  The position in England (Re Farrow, supra at 211) is no different from that in Australia (Coates v National Trustees Executors and Agency Co Ltd, supra at 508; Dun v Dun, supra at 288 to 289).

(2) This does not mean the court cannot take into account intervening events between the date of the deceased’s death and the date of the hearing, or contingent events which are certain or likely.  The court can do so, provided that such events are not outside the range of reasonable foresight, as the question what is proper maintenance involves the future of the applicant stretching forward from the date of the deceased’s death (Coates v National Trustees Executors and Agency Co Ltd, supra at 508).

(3) Thus, in determining the initial or triggering question of whether reasonable financial provision was made for the applicant, the court must look to what is necessary or appropriate prospectively from the date of the deceased’s death, including contingent events in the sense that they are certain or likely, and subsequent occurrences so long as they fall within the range of reasonable foresight (White v Barron, supra at 441).

(4) In respect of the first or triggering stage in section 5(1), by requiring the court to “take into account the facts as known to the court at the date of the hearing” in section 5(7) in determining if reasonable financial provision was made to the applicant, only those intervening events that fall within the range of reasonable foresight may be taken into account.  The first stage goes to the jurisdiction of the court.

(5) In respect of the second stage in section 5(1), by requiring the court to “take into account the facts as known to the court at the date of the hearing” in section 5(7) in determining whether and in what manner it shall exercise its powers under section 4, intervening events may be taken into account notwithstanding they fall outside the range of reasonable foresight.  The second stage goes to the exercise of discretionary power of the court, see Bondelmonte v Blanckensee, supra at 307, lines 14 to 22.

49.  It seems to me that Mr Wong is giving a strained interpretation to the statutory provisions to support his contention that an applicant would have an accrued right to apply for financial provision as at the date of the deceased’s death.  He sought to qualify the words “the facts as known to the court at the date of the hearing” by the additional requirement that they must be within the range of reasonable foresight, where the first stage is concerned.  I see no justification for reading this added requirement into the statutory provision.  I am not persuaded that the plain wording “take into account the facts as known to the court at the date of the hearing” in section 5(7) should receive a different interpretation as regards the first and second stages provided in section 5(1).

50.  The statement in Re Farrow, supra at 211 relied on by Mr Wong does not support his interpretation.  What Hollings J said was: “I am satisfied I must decide whether reasonable financial provision was made as at the date of the death, taking into account all the matters which are now known.”  The latter part of the statement cannot be ignored.  This is an English decision and sections 3(1)(a) and (5) of the 1975 Act are the same as our sections 5(1)(a) and (7).

51.  Mr Wong submitted there is nothing in the statute to support the argument that the financial needs of the applicant are to be confined to her present and future needs.  In support of this, he pointed to Re Farrow, supra at 215 to 216.  In that case, the applicant received a lump sum award in ancillary relief proceedings following her divorce and also obtained an order for periodical payments.  She did not however receive any periodical payment as her husband died shortly thereafter.  Hollings J awarded her a lump sum under the 1975 Act as compensation for having had to draw on her capital provision in the ancillary relief, to take into account she was without periodical payments for seven years.

52.  I do not think this decision supports Mr Wong’s contention.  The requirement that the court “shall take into account the facts as known to the court at the date of the hearing” does not mean that past liabilities and expenses incurred by the applicant as known to the court at the date of the hearing should not be taken into account, insofar as such liabilities and expenses might have an impact on “the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future”.

53.  I am inclined to think the approach and reasoning in the English cases cited by Mr Neoh (Re R; Whytte v Ticehurst; Re Bramwell (Deceased); In re Collins, Deceased) is to be preferred to the cases decided in Queensland, New Zealand and Canada cited by Mr Wong (King v Condon; In Re Hawke (Deceased); In re Shrimpton (Deceased); Re McCaffery). The Hong Kong legislation was based on the English legislation and there are material differences between our legislation and the statutes in Queensland, New Zealand and Western Australia, just as there are important differences between the New South Wales legislation and the Queensland legislation, as was recognised by the court in King v Condon, supra at §[18], in arriving at a very different outcome from McEvoy v The Public Trustee, supra.

54.  Nor do I agree with Mr Wong that the reasoning in Whytte v Ticehurst is flawed.  The ratio in that case (at 68B to C, 70A and F) was that the applicant was given no enforceable right against the deceased’s estate under the 1975 Act but merely the right to apply to the court for relief, and until the court granted relief, there was no cause of action that could survive the death of the applicant and be enforced by the applicant’s personal representative, applying the principles stated by Denning LJ in Sugden v Sugden.  Booth J dealt with maintenance under the matrimonial legislation in some detail to address the argument of counsel for the applicant’s personal representatives that the wider powers under the Matrimonial Causes Act 1973 have changed the nature of the claim for financial relief such that it could no longer be regarded as a “hope or contingency” as referred to in Sugden v Sugden under the old matrimonial legislation (at 68C to F).  She arrived at the view that the foundation of the matrimonial legislation has remained unchanged; the court is not concerned with assessing and enforcing proprietary interests but with doing justice as between the parties having regard to all the facts specified in section 25 of the Matrimonial Causes Act 1973 (at 69C to D).  It was in that sense that the foundation of the jurisdiction in the 1975 Act is the same as the matrimonial legislation (at 69F to G).

55.  Sheldon J in Re Bramwell (Deceased), supra, likewise rejected the submission that a claim under the 1975 Act contained not only a personal but also a proprietary element which is more than a mere hope or contingency and which survives the death of the applicant for the benefit of his estate (at 267D, F to 268A).

56.  It is unnecessary to address the additional argument whether a claim under the Inheritance Ordinance is personal to the applicant and not transmissible to his personal representative, as Madam Chan merely had a right to apply under the statute and not an accrued right vested in her as a cause of action that could survive her death.

Conclusion and orders

57.  By the order of Chung J on 23 March 2011, leave was granted to Madam Chan to accept the sanctioned offer for interim payment and he disposed of her application for interim payment by making no order.  By the order of M Chan J on 9 October 2012, it was ordered that there should be no order as to the costs of this action inclusive of the orders for costs reserved prior to 22 June 2012.  There is no further matter in these proceedings which would give rise to any rights to the estate of Madam Chan enforceable against the estate of the deceased.

58.  For all the above reasons, I would dismiss the appeals in CACV 186 and 187/2012.

59.  As canvassed at the conclusion of the hearing, costs in these appeals should follow the event.  I would order the estate of Madam Chan to pay the costs of the 2^nd defendants in these appeals, with a certificate for two counsel.

Hon Barma JA:

60.  I agree with the judgment of Kwan JA, and with the orders that she has proposed.

Hon Poon J:

61.  I also agree with the judgment of Kwan JA.