LOK MAN SIN v. LAM CHI WING

HCMP 735/2018

[2019] HKCFI 56

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 735 OF 2018

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R E A S O N S  F O R  D E C I S I O N

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A. Introduction

1.  By an Originating Summons dated 15 May 2018 (“the OS”), the plaintiff seeks the transfer of an apartment (“the Property”) belonging to the estate (“the Estate”) of the late Lam Yau Lin (“the Deceased”) pursuant to the Deceased’s will dated 23 November 2015 (“the 2015 Will”).  The defendant is the executor of the Deceased’s Estate under the 2015 Will and one of the Deceased’s sons.

2.  On 20 December 2018, Mr Lam Sai Wing (“LSW”), another son of the Deceased and the younger brother of the defendant, commenced a probate action in HCAP 43/2018 (“the Probate Action”) against the defendant and the plaintiff seeking, amongst other things, to propound an earlier will of the Deceased dated 11 October 2012 (“the 2012 Will”). 

3.  On 21 December 2018, the defendant took out a summons (“the Stay Application”) returnable on 31 December 2018, which was the substantive hearing for the OS, seeking an order that the OS be stayed until the resolution of the Probate Action and that the hearing on 31 December 2018 be adjourned sine die pending the resolution of the Probate Action.

4.  At the start of the hearing, I indicated that I would determine the Stay Application first.  After hearing submissions from both counsel, I allowed the Stay Application and indicated that the Defendant should pay to the plaintiff forthwith the costs of and occasioned by the OS incurred by the plaintiff from 21 to 31 December 2018 on an indemnity basis.  I then proceeded to carry out a summary assessment of the plaintiff’s costs.  These are the reasons for my decision.

B.   The relevant background and procedural history

5.  In the 2012 Will, the Deceased, amongst other things, gave and devised the Property to the defendant and LSW as tenants in common in equal shares absolutely.

6.  In the 2015 Will, the Deceased, amongst other things, gave and devised the Property to the plaintiff absolutely.

7.  The Deceased died on 13 March 2017.  On 20 December 2017, probate of the Deceased’s Estate (“Probate”) was granted to the defendant on the basis of the 2015 Will.

8.  On 8 March 2018, the plaintiff’s solicitors wrote to the defendant and demanded the latter to effect the conveyance of the Property to the plaintiff on or before 14 March 2018.

9.  By a letter dated 15 March 2018 to the defendant, LSW stated that he would challenge the validity of the 2015 Will because the Deceased had been suffering from Alzheimer’s disease and lacked the mental capacity to make important decisions or handle his personal affairs independently before the making of the 2015 Will.  The defendant was further requested by LSW to conduct an investigation as to the validity of the 2015 Will and the Deceased’s mental capacity at the relevant time.  A copy of LSW’s letter was forwarded by the defendant’s solicitors to the plaintiff’s solicitors on 19 March 2018 and the plaintiff’s solicitors were informed that “any distribution of the assets in the said estate” would be put on hold pending the completion of the investigation. 

10.  On 15 May 2018, the plaintiff commenced proceedings herein against the defendant for an order for the transfer of the Property.

11.  On 22 October 2018, Deputy High Court Judge D Lam SC ordered the defendant to file his affirmation within 14 days on an unless basis, failing which he would be barred from adducing evidence in these proceedings. 

12.  By an ex parte originating summons dated 2 November 2018 in HCMP 1932/2018, the defendant applied for an order that he be removed as executor of the Deceased’s Estate and that the grant of Probate be revoked. 

13.  On the same day (2 November 2018), the defendant issued a summons (“the Adjournment Summons”) herein seeking an order that the present proceedings be adjourned sine die pending the resolution of the defendant’s ex parte originating summons in HCMP 1932/2018. 

14.  In his affirmation filed to support his Adjournment Summons, the defendant stated, amongst other things, that (1) he considered the devise of the Property to the defendant in the 2015 Will did not reflect the true testamentary wishes of the Deceased, (2) he was wrongly advised by his former solicitors that he could proceed to obtain the grant of probate on the strength of the 2015 Will even though he challenged the validity of the devise to the defendant as contained in the 2015 Will.

15.  On 21 November 2018, B Chu J gave leave to the defendant to withdraw the Adjournment Summons and ordered the costs of the Adjournment Summons be paid by the defendant to the plaintiff to be summarily assessed and paid within 14 days from the date of assessment.

16.  On 20 December 2018, LSW commenced the Probate Action seeking an order, amongst others, that (1) probate in solemn form of the 2012 Will be granted, (2) the grant of Probate to the defendant be revoked, (3) the force and validity of the 2015 Will be pronounced against, (4) the defendant be removed as executor of the Estate.

17.  As mentioned earlier, the defendant issued the Stay Application on 21 December 2018.

C.   The relevant principles on stay of proceedings

18.  Under section 16(3) of the High Court Ordinance (Cap 4), the Courthas the power “to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person”.

19.  Similarly, according to Order 1B, rule 1(2)(e) of the Rules of the High Court, the Court may “stay the whole or part of any proceedings or judgment either generally or until a specified date or event”.

20.  The Court’s approach in an application for a temporary stay of proceedings is to consider the balance of convenience and fairness as between the parties.  Its discretion should be exercised in such a manner to ensure that its procedures are used in a logical, fair and cost-efficient manner.  Whether or not atemporary stay of proceedings should be granted is a question of case management.See Clinton Engineering Ltd v B-Tech (Holdings) Ltd (unreported, HCA 3608/1998, 28 September 2001) §9 (Recorder A Liao SC); SWE Ltd v Chong Lai Fun (unreported, HCA 1064/2004, 28 October 2004) §27 (Reyes J); Re Chime Corporation Ltd (unreported, HCMP 4146/2001, 11 March 2005) §14 (Kwan J). 

D.   Reasons supporting a stay

21.  There is a logical and obvious reason as to why the OS should be stayed pending the resolution of the Probate Action.  As mentioned earlier, underthe 2012 Will, the Property was devised to the defendant and LSW in equal sharesas tenants in common, and the plaintiff would not be entitled to any interest in the Property.  Therefore, if the Court propounds the 2012 Will in the Probate Action,the plaintiff would not be entitled to any relief in the OS.

22.  In other words, the Court’s rulings in the Probate Action are likely to be wholly determinative of the OS.  I note that similar reasoning was applied by L Wong J in §§20 and 21 in Chan Shui Hing v Chan Kin Keung (unreported, HCA 2658/2015, 10 November 2017) to stay an action pending the determination of a probate action.

23.  At the hearing on 31 December 2018, Mr Albert Chan on behalf of the defendant gave an undertaking to the Court that the defendant would not interfere with the plaintiff’s occupation of the Property pending the resolution of the Probate Action (“the Undertaking”).

E.   Reasons against a stay

24.  The plaintiff opposed the Stay Application.  Mr Alfred Liang on behalf of the plaintiff put forward a number of points to support his client’s opposition. 

25.  First, Mr Liang pointed out that there are a number of defects in the LSW’s Statement of Claim in the Probate Action, including that the pleading has not been verified by a statement of truth in accordance with RHC Order 41A rule 2, that the writ was not issued out of the Probate Registry in accordance with§6 of Practice Direction 20.2, and that the plea of the Deceased’s mental conditionin the Statement of Claim lacks particulars.  Even if these complaints are valid, thedeficiencies would not be sufficiently serious for me to ignore the existence of the Probate Action for the purpose of determining the Stay Application, particularly when LSW was not before the Court to respond to the complaints.

26.  Second, Mr Liang relied on the lateness of the Probate Action and the defendant’s Stay Application and submitted that such late applications should not be allowed to derail the substantive hearing of the OS.  As far as the Probate Action is concerned, it was commenced by LSW (a non-party to these proceedings)and there was nothing before the Court to suggest that the Probate Action was commenced deliberately late.  Whilst it is true that the Stay Application was madeby the defendant only 10 days before the OS’s substantive hearing on 31 December 2018, it was taken out one day after the commencement of the Probate Action.  In these circumstances, I did not consider lateness to be a particularly weighty factor against the making of a stay.

27.  Finally, Mr Liang highlighted the fact that the plaintiff is an elderly lady and may not live long enough to enjoy full benefit of ownership of the Property to which she is entitled under the 2015 Will.  However, in view of the issues in the Probate Action, it was not possible for me to say at this stage whether this would amount to definitive prejudice on the part of the plaintiff.

F.    Disposition

28.  For the above reasons, I considered the benefits of granting the stay would outweigh the prejudice which may be suffered by the plaintiff as a result of the stay. Accordingly, I exercised my case management discretion and granted a stay upon the Undertaking made by the defendant. 

29.  As far as the costs were concerned, I considered that unnecessary costs had been incurred by the plaintiff from 21 to 31 December 2018 as a result of the Stay Application.  Such costs would not have been wasted if the defendant had not made the Stay Application to adjourn the substantive hearing on 31 December 2018.  Irrespective of the timing of the Stay Application, it cannot be denied that the plaintiff has been prevented from pursuing the OS thatshe took out many months ago through no fault of her own.  In the circumstances, I considered it fair for the defendant to bear the plaintiff’s costs on a higher basis and carried out a summary assessment of costs accordingly.