YIP WING CHING v. YIP SHUNG KIN and YIP TIN YAU, Executors of the Estate of LAU MEI WAH, deceased

HCMP 818/2018

[2020] HKCFI 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 818 OF 2018

(TRANSFERRED FROM FCMP 29 OF 2018)

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D E C I S I O N

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1.  This is the Applicant’s application for leave to appeal against my Decision dated 14 August 2019 whereby I dismissed the Applicant’s Summons dated 30 July 2019.

2.  There is no dispute about the applicable test as set out by Kwan JA (as she then was) in Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §§29-31:-

(1)  “Reasonable prospect of success” under s 14AA of the High Court Ordinance, Cap 4 means that the prospect of succeeding must be “reasonable” and therefore more than “arguable” or “fanciful”, without having to be “probable”: §29.

(2)  Generally, an appellant court will not interfere with the judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible: §31.

Analysis

3.  I have perused the written submissions by the parties.  I am of the view that leave to appeal should be refused for the following reasons.  First, this Court has not, as contended by the Applicant, applied the wrong legal test.  This Court specifically highlighted paragraph 38 of the judgment of Lam JA (as he then was) in ACLS v HSB (T) L [2013] 2 HKLRD 444 and I repeat as follows:

“... If the financial needs of an applicant can be met by his own financial resources or had been met from other sources, he would not be regarded as having an immediate need for financial assistance.”

4.  It is clear to this Court (as informed by the Applicant’s Counsel) that the Applicant’s financial needs have all along been met by his siblings’ assistance and there is no evidence that such assistance will be terminated anytime in the near future (§§29-31 of the Decision).  That should really be the end of the Applicant’s application.

5.  When this Court stressed that the assets of the estate should be the last resort of a dependent’s immediate financial needs, it intended to send out a message that if the financial needs of an applicant can be met from other sources, the integrity of the assets of the Estate should not be disturbed.  This is consistent with the test as set out by the Court of Appeal.  I do not consider that there is any prospect of success on the challenge that this Court somehow misunderstood section 7 of the IPFDO.

6.  Secondly, the Applicant’s challenge to this Court’s application of section 4 of the IPFDO has no prospect of success.  What this Court did was to come to the view that Madam Xu is in essence the Applicant’s girlfriend and not a lawfully married spouse.  As such this Court came to the view that a girlfriend’s need was not a financial need requiring “reasonable” provision by the Estate, especially in the context of the Ordinance where the interest of other beneficiaries of the Estate is involved.  There is nothing in the law to oblige the Court to come to the view that the needs of an applicant’s girlfriend will require provision by the Estate.

7.  Thirdly, the Applicant contends that this Court erred in taking into account whether the Applicant “is bound to obtain some sort of financial relief”.  What the Court did was to consider that if the Applicant is bound to obtain some forms of relief, then that is a factor the Court should take into account in the exercise of its discretion.  Mr Man for the Respondents is right that what this Court was expressing was that if the Applicant is bound to get some forms of relief at trial, then this Court could consider granting some forms of interim maintenance to the Applicant even if this Court cannot be satisfied that the Applicant has an immediate need for financial assistance.

8.  For the reasons set out in §§40-43 of the Decision, this Court did not consider that this is such a case where the Applicant is bound to get some forms of relief.  Thus, even assuming the jurisdictional requirements can be dispensed with, they should not be dispensed with in the present case.

9.  Fourthly, the Applicant submitted that a condition to repay can be imposed such that no prejudice would be caused to the Estate. However, the grant of an interim maintenance under section 7 of the IPFDO is not a question of balancing the prejudice of the parties. At §48 of the Decision, this Court clearly sets out a principled approach should be adopted.  The jurisdictional requirement of “immediate need of financial assistance” has to be satisfied first.  In the present case, the Applicant has failed to demonstrate that he is in immediate need of financial assistance.

10.  Mr Man for the Respondent is right to remind this Court that at §32 of the Decision this Court noted that the Applicant did not in any of his affirmations deposed that unless he gets an order under section 7 of the IPFDO, he would not be able to meet his expenses.  This sits well with this Court’s assessment that the Applicant’s immediate financial needs are and can be met from other sources.

11.  Finally, there is no misunderstanding of evidence by this Court.  As set out in §29 of the Decision, this Court was informed by the Applicant’s Counsel that the Applicant’s siblings had been continuously supporting the Applicant’s living by way of loans and/or other advances between the date of the Summons and the date of the hearing.

12.  There is no challenge to this Court’s ruling that there is no evidence that the Applicant’s siblings would stop their financial support in the immediate or near future.

13.  For all the reasons stated above, the application for leave to appeal is dismissed.

14.  I also make a costs order nisi that the Applicant is to pay all costs of and incident to this application to the Respondents, on a party to party basis, to be taxed if not agreed.  This costs order nisi will be made absolute within 14 days from the date of this order unless the parties take out an application to vary the same within the 14-day period.

15.  Finally, it remains for me to thank Mr Wong and Mr Ng for the Applicant and Mr Man for the Respondents for their helpful assistance to this Court.