RE HO NAI CHEW

HCCA 1035/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO. 1035 OF 2009

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DETERMINATION

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INTRODUCTION

1.  In the last will written in Chinese dated 30 April 2008 of the deceased, 5 persons and a charitable fund or foundation (慈善基金) were named as legatees and devisees of his entire estate without naming any executor.

2.  An application for a grant of administration with the will annexed was made by two of the named beneficiaries (the “PWs”) of the said will.

3.  The Secretary for Justice (“SOJ”) in his capacity as the protector of charity filed a caveat against the sealing of the grant, which was warned by the PWs.

4.  In response to the warning to the caveat, SOJ on 3 June 2009 issued a summons for directions, seeking for an appointment of an independent party as an administrator pendente lite.

5.  At the hearing on 2 July 2009, SOJ applied to withdraw the summons. Upon the court having granted leave to SOJ to withdraw the summons, Counsel for the PWs asked for costs, and SOJ resisted the application.

6.  Hence, I adjourned the issue of costs to be disposed of on paper when an issue of whether the summons for the appointment of an administrator pendente lite had been properly brought was raised at the hearing.

THE PWS’ POSITION

7.  Counsel for the PWs, Mr. Chong submitted that the summons was totally misconceived because there was no pending litigation that would have allowed such an application to be made under section 40(1) of the Probate and Administration Ordinance, Cap.10 (“PAO”).

8.  Mr. Chong relied on the English Court of Appeal decision of Salter v Salter [1896] P291CA, and in particular on the passages of the judgment of Lopes L.J and Rigby L.J:

“… It has been urged that caveat, warning, and appearance constitute a lis pendens; but in my opinion, they do not. A caveat is merely notice to the registry to do nothing without notice to the solicitor who entered it. The effect of the warning is that the caveat becomes void unless the person who entered it appears within a certain time. If the person warned appears within the time limited the caveat proceedings are at an end. If after this a writ is issued the lis pendens commences, but not till then.’ ( Lopes L.J at 293):

‘… the intervention of the Court cannot be asked for except in a proper proceeding. Unless there is a lis pendens there is no way of approaching the Court…’ (Rigby L.J at 293-294)”

SOJ’S POSITION ON COSTS

9.  Counsel for SOJ, Miss Chan contended that the summons for appointment for an administrator pendente lite fell within the ambit of section 40(1), PAO because the section has clearly provided for such an appointment “for obtaining, … any grant” pending in court.

10.  She submitted that section 40(1), PAO, would not require any probate claim to be pending in court because an application to court for letters of administration (as in the present case by the PWs) was a legal proceeding. In a nutshell, Miss Chan argued that any non-contentious or common form probate proceedings pending in a court would fall within the meaning of section 40 (1), PAO without the need for a pending probate action.

11.  Miss Chan further sought to distinguish the present case from Salter (op.cit) on the ground that it was not clear from that case whether an application for grant had been made; whereas in the present case, there was a pending application by the PWs for a grant of letters of administration with the will annexed.

12.  So far as the liability for costs is concerned, Miss Chan asks for an order of no costs, or alternatively, for the costs be paid out from the 1/6 of the estate relating to the charity fund.

DISCUSSION

Whether an application for an administrator pendente lite can be made without a probate claim?

13.  The relevant part of section 40(1), PAO provides:

“Legal proceedings … for obtaining, recalling, or revoking any grant are pending the court, may … appoint an administrator of the estate of the deceased.”

14.  Having regard to the authority of Salter above, I am unable to accept Miss Chan’s argument that legal proceedings within the meaning of section 40(1), PAO, include non-contentious probate proceedings.

15.  In my view, legal proceedings in the context of section 40(1) can only be confined to a probate action. The fact the Latin phrase of “lite pendente” means “pending the suit”[1] in English further lends to the support that section 40(1) cannot be applicable to a case without a probate claim.

16.  For the sake of completeness, I have further considered the relevant paragraph in the latest edition of Tristram & Coote’s Probate Practice[2], and found further support for my view above. There, the learned editors have entitled the paragraphs relating to the equivalent English provision of section 117 of the Supreme Court Act 1981 as “administration pending determination of probate claim”. The corresponding English provision of section 117 has done away the Latin phrase and replaced it with the English phrase of “administration pending suit”.

17.  For these reasons, I am of the firm opinion that where no probate claim is pending, section 40(1) application for an administrator pendente lite cannot be invoked.

18.  Hence, I agree with Mr. Chong that this court would have no jurisdiction to entertain SOJ’s application.

DECISON ON COSTS

19.  A court has a wide discretion on costs. In the present case, as SOJ has withdrawn the summons, I do not see any reason why the PWs should be deprived of costs.

20.  I am therefore disinclined to accept Miss Chan’s submission by making an order of no costs. The PWs should be awarded the costs of the summons.

21.  As to how the costs should be paid, I take the view that SOJ should pay PWs’s costs of the summons. Having regard to the charity protector role of SOJ in this application, I think it is fair that the costs SOJ are to pay to PWs are to be reimbursed by the 1/6 of the estate relating to the charity fund.

ORDER ON COSTS

22.  SOJ shall pay the PWs’ costs of the summons , which costs are to be taxed if not agreed (including costs reserved), together with certificate for counsel.

23.  Any such costs having been paid to the PWs by SOJ are to be reimbursed by the monies to be distributed to the charity fund under the said will.