WANG DIN SHIN v. NINA KUNG

FACV No. 12 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2004 (CIVIL)

(ON APPEAL FROM CACV NO. 460 OF 2002)

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DECISION/DIRECTIONS

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Mr Justice Chan Acting CJ:

1.  The purpose of this directions hearing is to identify the issues relating to the question of costs which have to be decided by the Court at the hearing in October.  Having discussed the matter with leading counsel for the Wife and for the Father, it seems that the matters to be dealt with by the Court are those set out in paragraph 2 of the Appellant’s Reply Submissions on costs dated 2 December 2005.  In connection with item 2(5), that is, the Wife’s intention to seek an order for costs against non-parties who might have funded these proceedings on behalf of the Father, the Court has also raised the question of whether there is jurisdiction to order costs against persons who are not parties to the proceedings, in the light of s.52A of the High Court Ordinance, Cap 4.

2.  The Wife has issued a summons before the Probate Judge applying for an order for discovery on matters such as whether there are funders in these proceedings, who they were, the extent of their funding and any funding arrangements.  That was adjourned by the Judge pending the parties seeking the direction from this Court as to whether these matters should be dealt with by the Court of First Instance or this Court.  The summons issued before the Probate Judge is not properly before this Court.  But Mr Benjamin Yu SC submits that these matters should be dealt with by this Court before the hearing in October.  It seems to me that in order for the Wife to seek an order for discovery from this Court, it would be necessary to issue a separate motion setting out the sort of information to be sought by her, rather than to rely on the liberty to apply provision in the order given by the Court on 16 September 2005.  However, I do not rule out the possibility that upon hearing the motion, the Court may consider directing that these matters be remitted to the Court of First Instance if it is deemed more appropriate for these matters to be dealt with there.

3.  Since the question of the Court’s jurisdiction to award costs against a non-party has been raised and since the question as to whether the Father’s own costs should be paid out of the estate has not been decided yet, in my view, any motion for discovery should only be dealt with after the Court has decided on the question of jurisdiction and other matters on costs.

4.  However, in order to decide whether the Father should recover his own costs from the estate and on what basis, it is necessary for the Court to know: (i) whether the Father has incurred any costs in connection with these proceedings; (ii) how much costs (in rough figures) he has incurred; (iii) how much of such costs he has paid so far out of his own funds; and (iv) what are the agreed arrangements between the Father and his solicitors in relation to the unpaid balance.  I think these matters are relevant to the issues of whether the Father should be reimbursed out of the estate and if so, how much, e.g. on a common fund basis or indemnity basis.  I also bear in mind the Father’s previous affirmation filed some years ago when he was applying for maintenance and living expenses out of the estate to the effect that he was poor and could not afford even to pay for his own living expenses.  I would therefore direct that the Father do file an affirmation within 14 days from today on these matters.

5.  Depending on the answers to be given by the Father on these matters, it may be necessary for the Court on a future date to consider asking the Father to provide further information which is relevant to this question.

6.  The costs of this hearing be reserved.