CHIU MEI CHERRY v. YIP NGAN YUK AND ANOTHER

CACV 468/2024, [2025] HKCA 677

On Appeal from [2024] HKCFI 2824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 468 OF 2024

(ON APPEAL FROM HCAP NO 36 OF 2023)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Defendants’ appeal against the summary judgment entered by H Au-Yeung J dated 14 October 2024 in favour of the Plaintiff pronouncing for the force and validity of a will dated 26 July 2022 as the last will and testament of Li Lam Cheung (李臨祥), deceased (“the Deceased”).

BACKGROUND FACTS

2.  The Deceased was born in 1954.

3.  The Deceased and the 1^st Defendant married in January 1981. The 2^nd Defendant is their only son, born in December 1981. They used to reside in a flat in Harmony Garden, Tsuen Wan, New Territories (“the Tsuen Wan Property”), which was held in the joint names of the Deceased and the 1^st Defendant, as the matrimonial home. The 1^st and 2^nd Defendants have continued to live in the Tsuen Wan Property after the passing away of the Deceased.

4.  The Deceased also owned or purchased the following properties prior to his death:

(1)  a unit in Gold King Industrial Building, Kwai Chung, New Territories (“the Gold King Property”);

(2)  a flat in Kiu Yu Mansion, Lok Shan Road, Kowloon (“the Kiu Yu Property”); and

(3)  a property in Lai Chi Kok Road, Kowloon (“the Lai Chi Kok Property”), which was purchased in 2018 and registered in the sole name of the 2^nd Defendant.

5.  In around 2019, the Deceased began an extra-marital relationship with the Plaintiff, who subsequently gave birth to a son of theirs in November 2021 (“the Younger Son”).

6.  In around February 2022, the Deceased was diagnosed to be suffering from pancreatic cancer.

7.  During his lifetime, the Deceased made the following wills:

(1)  a will dated 6 October 2021 (“the October 2021 Will”), in which the Deceased (i) named 1^st and 2^nd Defendants as the executors, (ii) bequeathed the Gold King Property to the 1^st Defendant; and (iii) bequeathed his residuary estate to the 1^st and 2^nd Defendants in equal shares;

(2)  a will dated 15 June 2022 (“the June 2022 Will”), in which the Deceased (i) named the 2^nd Defendant as the executor, (ii) bequeathed the Gold King Property to the 1^st Defendant, (iii) bequeathed the Kiu Yu Property to the Younger Son, and (iv) bequeathed his residuary estate to the 1^st and 2^nd Defendants in equal shares; and

(3)  a will dated 26 July 2022 (“the July 2022 Will”), in which the Deceased –

(a)  named the Plaintiff as the executrix;

(b)  bequeathed all his interest and benefit in the Gold King Property, the Kiu Yu Property, the Tsuen Wan Property, and his shares and interests in a company set up by him called Wing Sing Cheung Engineering Company Limited to the Plaintiff;

(c)  stated that –

(i)  he was the beneficial owner of the Lai Chi Kok Property, which he claimed to have been purchased with his funds, and gave the Plaintiff the full power to decide whether to commence proceedings to recover that property from the 2^nd Defendant;

(ii)  in the event the Plaintiff should successfully recover the Lai Chi Kok Property from the 2^nd Defendant, the Deceased bequeathed all his interest in that property to the Plaintiff; and

(iii)  he decided not to give anything to the 1^st and 2^nd Defendants out of his estate because, after he was diagnosed to be suffering from cancer and hospitalised, they neglected to take care of him and refused to give assistance in respect of his medical and living expenses.

8.  The July 2022 Will was executed by the Deceased in the presence of Mr Lin Hoi Bun Alan (“Mr Lin”), a partner of Messrs. Wong Poon Chan Law & Co (“WPCL”), and a clerk of WPCL. Immediately prior to the execution of the July 2022 Will:

(1)  The Deceased had been examined by Dr Tam Ka Lok (“Dr Tam”), a psychiatrist, who issued a medical certificate and a psychiatric report both dated 26 July 2022 stating that the Deceased had a sound mind and understanding ability, and was mentally fit to make a valid will.

(2)  Mr Lin had gone through a “Checklist for Execution of Will” (“the Checklist”) and a letter of consent (“the Consent Letter”) both dated 26 July 2022 with the Deceased –

(a)  The Checklist, which was signed by Mr Lin, covered, inter alia, the following matters: (i) previous will(s) which might have been made by the Deceased, their differences with the proposed will, and an explanation of why the Deceased decided to revoke the previous will(s), (ii) the testamentary capacity of the Deceased, including the nature of the act of making a will, the effects of making a will, and the claim of others, and (iii) the Deceased’s knowledge and approval of the proposed will.

(b)  In the Consent Letter, the Deceased explained why he decided not to leave anything to the Defendants, and confirmed that he had been explained by WPCL about the possibility that the Defendants might apply to the court for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481. The Consent Letter was signed by the Deceased.

9.  Also on 26 July 2022, the Deceased executed a Notice of Severance, addressed to the 1^st Defendant, to sever their joint tenancy in the Tsuen Wan Property.

10.  The Deceased passed away on 8 September 2022. By the time of his death, the Deceased and the 1^st Defendant had been married for some 41 years.

11.  On 31 July 2023, the Plaintiff commenced the present probate action to propound for the force and validity of the July 2022 Will.

12.  In their Defence and Counterclaim dated 4 October 2023, the Defendants challenge the July 2022 Will on, inter alia, the following grounds:

(1)  lack of testamentary capacity on the part of the Deceased;

(2)  want of knowledge and approval by the Deceased of the July 2022 Will;

(3)  undue influence by the Plaintiff; and

(4)  the July 2022 Will did not express the true intentions of the Deceased as regards the distribution of his assets, properties or estate.

The matters relied upon by the Defendants in support of the above contentions are particularised at §§5, 6, 9 and 10 of the Defence.

13.  The Defendants also counterclaim for probate in solemn form of the October 2021 Will or, alternatively, the June 2022 Will.

14.  In passing, it may be noted that the Defendants contend, at §6(8) and (9) of the Defence, that the 2^nd Defendant is the rightful owner of the Lai Chi Kok Property (it all along being the Deceased’s intention to make a gift of that property to the 2^nd Defendant), and the Deceased had no interest in the Lai Chi Kok Property.

THE DECISION

15.  By a written decision dated 14 October 2024 (“the Decision”), the Judge gave summary judgment in favour of the Plaintiff, pronouncing for the force and validity of the July 2022 Will. In the Decision, the Judge rejected:

(1)  the lack of testamentary capacity defence (§§27-49);

(2)  the want of knowledge and approval defence (§§50-62);

(3)  the undue influence defence (§§63-70); and

(4)  the true intention defence (§§71-79).

The Judge found that the Plaintiff had established all the constituent elements of her cause of action, and the Defendants had failed to show any issue in dispute that ought to be tried, or that for some other reason there ought to be a trial.

THE NOTICE OF APPEAL

16.  In the Notice of Appeal dated 8 November 2024, the Defendants raise 3 substantive grounds of appeal, contending that the Judge was plainly wrong in holding that the Defendants had failed to raise any triable issue in relation to:

(1)  the testamentary capacity of the Deceased when he executed the July 2022 Will;

(2)  the Deceased’s knowledge and approval of the contents of the July 2022 Will; and

(3)  the defence of undue influence.

Thus, it is argued, the Judge was wrong in holding that the July 2022 Will represented the true intentions of the Deceased, and the Defendants ought to be given unconditional leave to defend the Plaintiff’s action.

17.  The detailed matters relied upon by the Defendants in support of the above contentions are fully set out in the Notice of Appeal, which it is not necessary to repeat in this judgment.

DISCUSSION

(i)  Applicable principles

18.  It is not in dispute that summary judgment may be given in a probate action to propound a will in solemn form. However, it has been emphasized that such an application must be approached with caution or care, in view of the special nature and features of a probate action, the role of the court in such an action, and the effect of an order of the court pronouncing for the force and validity of a will in solemn form (Re Estate of Chan Fook Lai (Deceased) [2024] 1 HKLRD 29, at §2).

19.  The reasons for this approach were explained by Cheung JA (with whom Yuen JA agreed) in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148:

“[15] … The distinction between grants of representation in common form and those in solemn form are as follows. A will is proved in ‘common form’ where its validity is not contested or questioned. On the other hand, a will is proved in ‘solemn form’ by the executor, or a person interested under the will, propounding it in a claim to which the persons prejudiced by it have been made parties, and by the court, upon hearing evidence, pronouncing for the validity of the will and ordering the issue of a grant. The difference in effect between a probate which has been granted in common form, and a probate which has been granted in solemn form, is that the former is revocable, and the latter, provided proper notice has been given to all persons interested, is, subject to two exceptions, irrevocable. See: Tristram and Coote’s Probate Practice, 30^th edition, paragraph 26.03.

[16] … A probate action being of the nature of an action in rem and the court’s function being inquisitorial (Re Fuld (No. 2) [1965] 2 All E.R. 657) the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (Order 62, rule [6(1)]) but in other cases he must set up a positive case by way of counterclaim. For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim. It would rarely be appropriate for a probate action to be dismissed for want of prosecution, see: paragraph 76/8/1 of the Hong Kong Civil Procedure 2012.”

20.  From the above discussion, it can be seen that the special nature and features of a probate action include: (i) a probate action is an action in rem, (ii) the court’s function in a probate action is inquisitorial (and thus the court will, at the trial, endeavour to make a positive finding as to which is the valid will, or whether the deceased died intestate, and, in the case of an interest action, who is entitled to representation, and generally will not, except in the case of a revocation action, merely dismiss the action without more), (iii) a defendant is entitled to insist upon a will being proved in solemn form of law and attend the trial to cross-examine the attesting witnesses, and will not be ordered to pay costs unless the court is of the opinion that there was no reasonable ground for opposing the will, and (iv) a will proved in solemn form is, subject to two recognised exceptions (namely, discovery of a later will, and judgment obtained by fraud), generally irrevocable. For these reasons, it would only rarely be appropriate, or seldom be likely, for summary judgment to be given in a contentious probate action. In Choy Po Chun, ante, Cheung JA went on to state the following:

“[17] Given the nature of a contentious probate action, the court raised with the parties whether Order 14 summary judgment proceedings is applicable to such an action. On the face of it, Order 14 does not exclude its application to a contentious probate action. In Re Lau Siu Wah [2005] 1 H.K.C. 364, it was held that Order 14 applies to probate actions. This was followed in Sum Wan Piu Paul v. Lau Siu Hong HCAP 3/2004 and in Lisa Poncet v. Kho Sin Tek Henry (unrep., HCAP 19 of 2003) [2007] H.K.E.C. 446 an action for the grant of letters of administration.

[18] To complete the picture, the commentary at paragraph 14/12 of the English Supreme Court Practice 1999 is also relevant. It stated the position prior to the introduction of the new rule for summary judgment in rule 24 of the Civil Procedure Rules:

‘Formerly O.14 did not apply to probate actions, which were tried in the Probate Divorce and Admiralty Division. Now that such actions are tried in the Chancery Division, there is no longer any reason in principle why summary judgment should not be given in such an action. It will, however, only rarely be appropriate, given that any person whose interest in the estate of a deceased person is prejudiced by a testamentary document may compel the executor or other person seeking to propound it to establish it by the examination of the attesting witnesses.’

[19] Tristram and Coote’s at paragraph 38.08 commented that

‘Summary judgment under CPR Pt 24 is available but seldom likely to be appropriate in a probate claim.’

[20] It should be noted that none of the Hong Kong cases I have referred to were concerned with the raising of a counterclaim in the probate action. While I am not prepared to say that the mere existence of a counterclaim will preclude the application of the summary judgment procedure, the court must tread carefully before giving effect to this procedure. Ultimately the question is whether credible triable issues have been raised in a contentious probate action.”

21.  The need for caution before giving summary judgment in a probate action was reiterated by Chu VP (with whom Cheung JA agreed) in Re Estate of Cha Mou Sing Payson (Deceased) [2024] 2 HKLRD 1411, at §§34-37.

22.  Such caution for granting summary judgment in a probate action operates in addition to the general principle that summary judgment is reserved for clear cases only. In particular, summary judgment would not be appropriate in cases involving serious factual disputes. Further, the court, on the hearing of an application for summary judgment, may refuse to give judgment for the plaintiff where the defendant satisfies the court that there ought “for some other reason” to be a trial of the plaintiff’s claim or part of a claim under Order 14 rule 3(1) of the Rules of the High Court, Cap 4A.

(ii)  Special features in the present case

23.  There are a number of special features in the present case which have led us to the conclusion that the Defendants ought to be given a full opportunity to challenge and cross-examine the evidence of various witnesses (including Mr Lin and Dr Tam) relied upon by the Plaintiff to prove the validity of the July 2022 Will in a trial.

24.  First, the July 2022 Will was executed by the Deceased barely a month after he had executed the June 2022 Will, and involved a fundamental change of the disposition of his estate. Under the June 2022 Will, save and except that the Kiu Yu Property which the Deceased purchased on 6 May 2022[1] and bequeathed to the Younger Son, the Deceased gave the whole of his remaining estate to 1^st and 2^nd Defendants and nothing to the Plaintiff. However, under the July 2022 Will, the Deceased gave effectively the whole of his estate to the Plaintiff, disinheriting not only the 1^st and 2^nd Defendants but also the Younger Son. The making of the June 2022 Will, revoking and replacing the earlier October 2021 Will and making specific provisions for the Younger Son, was readily explicable in view of the birth of the Younger Son in November 2021. However, the Deceased’s rationale for making the July 2022 Will is more controversial. Even if one accepts at face value the Deceased’s reason for disinheriting the Defendants (namely, that they had failed to look after him and/or pay his living/medical expenses), there was no obvious reason why the Deceased would disinherit the Younger Son as well. The Judge took the view that there was nothing suspicious at all given the Plaintiff would become the sole beneficiary under the July 2022 Will[2]. However, as pointed out by Mr Chan, SC (for the Defendants), in the June 2022 Will, the Deceased was careful in making appropriate provisions for the Younger Son, including:

(1)  bequeathing the Kiu Yu Property, which the Deceased purchased in May 2022 soon after the birth of the Younger Son, to him for his absolute use and benefit when he attained the age of 18;

(2)  directing the executor (ie the 2^nd Defendant) to pay a reasonable sum from the income generated from the Kiu Yu Property each month for the support of the Younger Son until he attained the age of 18; and

(3)  in the event the Kiu Yu Property should be acquired by the Urban Renewal Authority or other property developer(s) before the Younger Son shall attain the age of 18, directing the executor to deposit the proceeds of sale of the property into a trust account maintained with HSBC or the Bank of China (Hong Kong) Limited for the use or benefit of the Younger Son.

Plainly, at the time of the making of the June 2022 Will, the Deceased decided to entrust the 2^nd Defendant, instead of the Plaintiff, to hold the Kiu Yu Property for the interest of the Younger Son prior to his reaching the age of majority. Even if the Deceased considered that the Plaintiff would look after the Younger Son, there is still the question of why an arrangement similar to that found in the June 2022 Will was not included in the July 2022 Will insofar as the Kiu Yu Property, which appeared to be a specific property purchased by the Deceased for the benefit of the Younger Son, was concerned.

25.  Second, the complete disinheritance of the 1^st Defendant (who had been the Deceased’s wife for over 40 years) and the 2^nd Defendant (who was the Deceased’s eldest son) is something which we consider the Defendants should be allowed a full and proper opportunity to challenge in a trial, particularly when the allegation that the Defendants failed to look after the Deceased or refused to pay his medical/living expenses is seriously disputed by them[3]. The Judge noted the 1^st Defendant’s evidence that she paid the Deceased’s medical expenses up to 17 July 2022. However, he rejected the suggestion that the Defendants could not pay further hospital bills for the Deceased because they were not allowed to visit the Deceased anymore, on the basis that according to the Defendants’ pleaded case, they had not been allowed to visit the Deceased after 12 July 2022, and yet the 1^st Defendant could still pay the Deceased’s hospital expenses on 17 July 2022[4]. It was not, however, the 1^st Defendant’s evidence that she could not pay the Deceased’s hospital expenses as a result of her being not allowed to visit the Deceased after 12 July 2022. The mere fact the 1^st Defendant missed a payment on 19 July 2022 is no proof that she refused or was not willing to pay the Deceased’s hospital expenses. It is also of note that, by around May 2022, the Deceased’s health had deteriorated drastically and he was in and out of hospital from that time onwards[5]. The fact that the 1^st Defendant continued to pay the Deceased’s hospital expenses up to 17 July 2022 is at odds with the Deceased’s statement in the July 2022 Will that the Defendants had refused to pay his living/medical expenses after he was diagnosed to be suffering from cancer and hospitalized.

26.  Third, Ms Cho Mei Ting (“Ms Cho”) of Messrs. Cho Mei Ting & Co, who was responsible for preparing the October 2021 Will and June 2022 Will for the Deceased, apparently refused to prepare a new will for the Deceased because (i) the request to make a new will was made shortly after the execution of the June 2022 Will, and (ii) the contents of the proposed will represented a radical departure from the previous 2 wills. It was the 1^st Defendant’s evidence that she believed Ms Cho was worried about the Deceased’s state of mind. The Judge did not give weight to this matter because: (i) he read the 1^st Defendant’s evidence to mean that it was only the 1^st Defendant’s belief that Ms Cho had worry about the Deceased’s mental state (but not that Ms Cho had any such worry), (ii) Ms Cho had not made any affirmation to support the 1^st Defendant’s defence, and (iii) in any event, Ms Cho’s doubt on the Deceased’s testamentary capacity was irrelevant because she did not try to find out why the Deceased had a wholesale change of mind as regards the beneficiaries of his estate, and the Deceased’s testamentary capacity was strongly supported by the evidence of Dr Tam and Mr Lin[6].

(1)  In respect of (i), the 1^st Defendant stated the following in her 1^st Affirmation dated 4 June 2023:

“[50] In or around June 2023, D2 and I were informed by Ms. Cho of Messrs. CMT (‘Ms. Cho’), that prior to the drafting of the July 2022 Will, the Deceased had requested Ms. Cho to prepare another will. However, Ms. Cho refused the Deceased’s request because this request was made within a very short period after the drafting of the June 2022 Will (which was also prepared by Ms. Cho).

[51] Further, Ms. Cho had refused the Deceased’s request, because the contents of the proposed will included radical departures from the previous wills which were both prepared by Ms. Cho of Messrs. CMT. At that time, I believe that even Ms. Cho was worried about the state of mind that the Deceased was in.”

(2)  While the Judge’s reading of the 1^st Defendant’s evidence may be literally correct, it is, we consider, also a possible reading of her evidence that her belief or understanding was based on what Ms Cho had told her and the 2^nd Defendant in June 2023.

(3)  In respect of (ii), the Judge was told that the Defendants had been liaising with Ms Cho to see if she could testify for the Defendants at the trial. The fact that the Defendants had not produced an affirmation from Ms Cho for the purpose of the hearing before the Judge should be viewed in light of the fact that the Defendants were at that stage faced only with a summary judgment application. In such an application, they only needed to satisfy a low threshold in order to obtain leave to defend, and might not have seen or appreciated the necessity to obtain an affirmation from Ms Cho at that time.

(4)  In respect of both (i) and (ii), while the strict evidential approach adopted by the Judge may be appropriate in an ordinary, adversarial, commercial litigation, it seems to us that a less rigid approach ought to be adopted in a probate action where the court’s function, as stated by Cheung JA in Choy Po Chun (at §16), is inquisitorial.

(5)  In respect of (iii), we consider that the matters mentioned by the Judge are more appropriate to be assessed or evaluated in a trial, instead of in a summary judgment application.

27.  On the other hand, Ms Cho was someone who was familiar with the Deceased, and had handled most of the Deceased’s property transactions for many years[7]. She had previously prepared 2 wills for the Deceased, and plainly would have gained some insight into the thinking of the Deceased. She was independent of the disputes between the Plaintiff and the Defendants. As a professional, one would not normally expect Ms Cho to turn down her client’s request to make a new will save for some very good reasons. In our view, the refusal of Ms Cho to prepare a new will on behalf of the Deceased is a matter which should not have been dismissed summarily without further consideration or investigation.

28.  Fourth, the circumstances in which Mr Lin came to be instructed by the Deceased to make the July 2022 Will are far from clear. Apparently, Mr Lin was first told by the Plaintiff’s present solicitors (Mr Alfred Leung of YTL LLP) on or around 20 July 2022 that the Deceased wished to engage a solicitor to prepare a will[8], and he went with Mr Leung to meet the Deceased on 22 July 2022 at the Gleneagles Hospital. There is no evidence that either Mr Leung or Mr Lin had previously acted for the Deceased. The circumstances in which Mr Leung came into the picture have not been explained. On the other hand, according to Mr Lin, WPCL is in association with YTL LLP. In these circumstances, whether the Plaintiff was instrumental in the engagement of Mr Lin to prepare the July 2022 Will for the Deceased, and whether the second rule in Barry v Butlin has any application in the present case, ought to be determined in a trial instead of summarily.

29.  Finally, there is, we consider, some substance in Mr Chan’s complaint that there were, or might be, errors in Dr Tam’s assessment of the Deceased’s testamentary capacity using the “Montreal cognitive assessment Hong Kong version”. For example, the Deceased was required to complete a chain of numbered circles from 1 to 10. It is clear that the Deceased did not complete the chain, but he was nevertheless awarded one point for carrying out the task. Mr Chan also argues that the Deceased failed to correctly follow the instructions to draw a cube, and a clock face showing the time of 11:10, but he was nevertheless awarded one point and three points respectively for carrying out those tasks. The Judge dismissed these criticisms on the basis that the Defendants and their counsel were not medical expert and they did not have the relevant marking scheme for the assessment, and thus they were simply not in a position to challenge Dr Tam’s assessment[9]. However, the errors or possible errors made by the Deceased were apparent on the face of the assessment sheet completed by the Deceased, and were matters which it would not be improper for the Defendants to raise with Dr Tam for an explanation. It may be that, with the benefit of the relevant marking scheme and/or other literature, Dr Tam could satisfactorily explain why it was correct to award points to the Deceased notwithstanding the errors or possible errors made by the Deceased. However, such matters ought properly to be explored at the trial, instead of being disposed of summarily without the benefit of all relevant materials.

30.  It is unnecessary to consider all the detailed points raised by the Defendants in the Notice of Appeal. There are also other matters of concern, including the Plaintiff’s erratic behaviour in throwing the Deceased’s items, including his clothes, documents, debit card and other personal items, to the hallway outside the Plaintiff’s flat in which the Deceased was then living, and the “Car Incident” on 8 July 2022[10] referred to by the Judge at §64(5) of the Decision, which would show the sort of pressure that the Deceased was being subjected to at that time[11]. We are satisfied, on the basis of the above matters, and taking into account the Deceased’s age and health conditions at the time of the making of the July 2022 Will as well as its serious impact on the 1^st and/or 2^nd Defendants, that there are issues or questions in dispute (including, inter alia, the issue of the Deceased’s testamentary capacity and the issue of the Deceased’s knowledge and approval of the contents of the July 2022 Will) which ought to be tried, and/or there ought for some other reason to be a trial of the Plaintiff’s action. We are mindful of the fact that the giving of summary judgment by the Judge involved an exercise of discretion, and the Court of Appeal would not lightly interfere with a decision of this nature by a judge at first instance. We are, nevertheless, persuaded that is an exceptional case which justifies our interference with the Judge’s decision on the ground that he has, effectively, engaged in a mini-trial on affidavit evidence, failed to pay sufficient regard to the court’s inquisitorial function in a contentious probate action, and failed to pay sufficient heed to the principle that extra caution is required before exercising the jurisdiction to give summary judgment in a probate action. In our view, the present case is not one of those rare cases where it would be appropriate for the probate action to be disposed of summarily.

DISPOSITION

31.  The Defendants’ appeal is allowed, the judgment dated 14 October 2024 is set aside, and the Defendants are granted unconditional leave to defend the Plaintiff’s action.

32.  The costs of the application below shall be in the cause of the action, while the costs of the appeal shall be to the Defendants, to be summarily assessed. The Defendants shall have leave to file and serve a costs statement within 14 days from the date of this judgment, and the Plaintiff shall have leave to file and serve a statement of objections within 14 days thereafter. The above costs order is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.