SO YEE MUI AND OTHERS v. LAM PUI CHI

HCAP 7/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2008

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BETWEEN

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JUDGMENT ON COSTS

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1.  This is an application to vary my costs order nisi which I set out in paragraph 132 of my judgment handed down on 1 December this year. In that paragraph I make an order nisi that the Defendant shall pay the costs of the Plaintiff on party to party basis.

2.  The Defendant now comes to this court to seek a variation and asks for an order that the Plaintiff’s costs be paid out of the estate, and in the alternative, that there shall be no order as to costs in this action.

3.  There is no major difference between the parties as to the basic approach in how the discretion as to costs should be exercised in a probate action.  As in all costs matters, these are matters in the court’s discretion.  But in hostile litigation, the general rule in probate action is that costs should follow the event.  There are some exceptions to this general rule.  I do not think I need to go through all of them.

4.  The two particular exceptions relied upon by the Defendant in the present case are: first, that the litigation has been caused by the conduct of the deceased; and second, it is said that there are circumstances affording reasonable grounds for investigation as to the Plaintiffs’ claim for grants.

5.  I will now deal with the first exception: that the testator was, to some extent, responsible for causing the present litigation.

6.  It is submitted on behalf of the Defendant that the deceased was responsible in that he had chosen to go through a marriage ceremony with the Defendant notwithstanding his marriage to the 1st Plaintiff. Further he was said to be responsible in terms of not making a will governing the distribution of his estate after his death.  These are said to be matters that the court should take into account as factors giving rise to the present litigation.  Ms Lau also placed emphasis on the fact that the Defendant had worked hand in hand with the deceased in building up the estate.

7.  I do not think I have made any finding as to how much the Defendant had contributed to the wealth of the company which formed part of the estate.  The Defendant has worked in the company as an accountant, but it does not follow from such finding that she worked hand in hand with the deceased in building up the estate.

8.  In any event, since this is a probate court, the court is only tasked to decide to whom representation of the estate should be granted.  In respect of how the estate should be distributed, it is not a matter to be decided at this stage.  I think the focus should be on the status of each of these claimants who said they were entitled to a grant to see whether there had been anything done by the deceased which can be said to be causative in terms of causing the litigation.

9.  In this connection, it has to be remembered that in my judgment, one of the main grounds for my holding against the Defendant’s claim was that her so-called marriage with the deceased took place some time after 1971.  This is something which must have been known to her personally. This is not something that requires any investigation on her part.  So in terms of her locus or her claim of her alleged status as a wife, if she had been truthful from the very beginning, she would be advised by those advising her that she has no locus at all by reason of the change in the law in 1971.

10.  It cannot be said, in my judgment, that any conduct of the deceased has contributed to her mistaken view as to the date of this marriage ceremony.  On such analysis, I do not think the Defendant has any valid argument on costs based on the fact that the deceased underwent this second marriage ceremony.  The fact that there was this second marriage ceremony by itself was not a sufficient ground to support her claim.  In addition to that, she had to consider what was the date of her so-called marriage with the deceased, and this is not something that she has been misled by the deceased. Before she decided to file a caveat to prevent representation of the estate being granted to the Plaintiffs, no doubt she had the benefit of legal advice. I have no doubt that she would have to consider with her lawyers the implications of the fact that the so-called marriage was undergone at a time after 1971, had she been truthful with her lawyers.

11.  In such circumstances, looking at the matter from this angle, the litigation was actually occasioned by her false claim that her marriage with the deceased was undertaken before 1971. 

12.  With respect to counsel, I do not think one can say because the deceased made no provision for the distribution of his estate by way of making a will, this is a kind of conduct which can justify the Defendant to lodge her caveat causing the present probate action.

13.  For these reasons, I reject counsel’s submission that the case falls within the first kind of exception, namely that the litigation was occasioned by the conduct of the deceased. 

14.  In terms of the second exception, Ms Lau submitted that because of the lack of documentary evidence with regard to the marriage of Madam So with the deceased, it was reasonable therefore for the Defendant to ask the court to investigate into the matter.  But before we come to the validity of Madam So’s marriage, one has to ask what locus does the Defendant have, or what is the status relied upon by the Defendant.  On this question again we go back to the point that she actually would have no ground to support her claim as a lawful wife in her caveat had she been truthful from the beginning in terms of the date of her so‑called marriage with the deceased.

15.  It would be a matter of no concern to her whether Madam So had been validly married to the deceased had she realised, as I found she should have, that because of the fact that her so-called marriage with the deceased was contracted after 1971, she herself cannot claim to be a lawful wife of the deceased.  But for her filing of a caveat, given the indisputable fact that the 2nd to 5th Plaintiffs were the children of the deceased, even if there is any doubt as to Madam So’s status at some stage due to the lack of documentary evidence, there cannot be any doubt that the 2nd to 5th Plaintiffs or any one of them would be entitled to the grant of letters of administration.

16.  Therefore, but for the filing of the caveat by the Defendant, the 2nd to 5th Plaintiff would have got a grant by way of common form business. The whole probate action was necessitated by the Defendant’s claim of her own status as a lawful wife, notwithstanding that she should have known that because her so-called marriage with the deceased was not contracted before 1971, she could not be regarded as the wife of the deceased as a matter of law.

17.  Therefore, had the Defendant been truthful, there was simply no need to have any investigation about the status of Madam So.

18.  Ms Lau submitted that it would not be reasonable to expect the Defendant to appreciate the significance of the date of her so‑called marriage with the deceased since it is a matter of law.  I cannot accept that submission.  Before the caveat was filed and before the Defendant decided to contest the claims of the Plaintiffs by defending the probate action, she had every opportunity to have legal advice and she did have legal advice.  Of course, it behoves her to tell the truth to those advising her in terms of the date of her so-called marriage with the deceased.  If she chose to give an inaccurate picture to those advising her for reasons best known to her, then she has to suffer the consequences.

19.  Based on the above analysis, I do not think any of the exceptions to the general rule avails the Defendant.

20.  Then coming back to the question whether this is a hostile litigation, Ms Lau submitted that in a way the Defendant was simply putting the Plaintiffs to prove their claim to entitlement to grant.  With respect, I do not accept that submission.  But for the Defendant setting up the positive case that she was the wife of the deceased, and therefore the burden is on her to show that she was validly married to the deceased based on a marriage ceremony in accordance with Chinese custom prior to 1971, as explained above there was no need to have this probate action.  This has always been the crux of the dispute between the parties.

21.  I see no reason why this action should not be regarded as the usual type of hostile probate litigation, and as such, on such I see no reason why the general rule as to costs should not apply.

22.  Therefore notwithstanding the submissions made on behalf of the Defendant, I maintain my order as to costs as provided for in my order nisi at paragraph 132 of my judgment.

Submissions on costs

23.  I think the Plaintiffs should get the costs of today’s hearing, and I think it is a reasonable sum to assess those costs at $20,000.  I agree it is an appropriate case for gross sum assessment.  That will save parties’ costs as well.

24.  I will order the Defendant to pay the Plaintiffs costs of today, and such costs are fixed by way of gross sum assessment at $20,000.