CHEUK SHU YIN v. YIP SO WAN AND OTHERS

FACV No. 9 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2011 (CIVIL)

(ON APPEAL FROM CACV NO. 163 OF 2009)

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JUDGMENT ON COSTS

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Mr Justice Chan PJ:

1. This appeal was heard together with FACV No. 11 of 2011. On 13 November 2012, the Court allowed the appeal reversing the Court of Appeal and restoring the declaration made by the trial judge to the effect that the appellant and her ex-husband (whom she divorced in 2006 and who passed away in 2010 after the trial judge’s judgment) were beneficially entitled to the property in question (a flat within the Home Ownership Scheme) although the flat was registered with the Housing Authority in the names of respondents. The parties have now made written submissions on the question of costs.

2. The appellant asks for the costs and expenses of the proceedings here and below, although she was not represented in the lower courts but was represented in this Court by the Bar Association’s Free Legal Service Scheme. This is opposed by the respondents on the ground that the deceased husband (the respondents’ son) had made a will on 19 February 2010 (which was after the trial at first instance but before the appeal in the Court of Appeal) bequeathing all his estate to the respondents. The will was challenged by the appellant in separate proceedings but was upheld by the Court of First Instance on 9 January 2013 after the disposal of the present appeal. (It would appear that there is a pending appeal in respect of that matter.) 

3. We do not think the respondents’ objection can be sustained. The will of the deceased husband and the proceedings relating to its validity are not relevant to the question of costs in the present proceedings.  In this case, the appellant claimed a beneficial interest in the property on the ground that she and the deceased husband had made all the contributions to the purchase price and this was resisted by the respondents. The Court has decided in her favour and she should be entitled to her costs in pursuing her claim. Her share of such beneficial interest has to be separately determined (if not already determined) by the Family Court before it can be ascertained whether there is any share belonging to the deceased husband which can be bequeathed to the respondents. But these matters are not the concern of the lower courts or this Court in the present proceedings. We see no reason for departing from the normal practice that costs should follow the event. The appellant in her written submissions has indicated that she has incurred various expenses in connection with this case. We therefore order that the respondents do pay all the costs and expenses, if any, which the appellant has incurred in these proceedings here and below.