FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS

CACV 13/2014,
CACV 16/2014 and
CACV 17/2014
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 13, 16 and 17 OF 2014

(ON APPEAL FROM HCA NO. 2155 OF 2011)

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(Heard together)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  We handed down our judgment on 12 February 2015. Since then parties filed submissions on costs of the appeal and costs below. In the meantime, time was given to the first family siblings (Ian, Tim, Ben, Nora and Pat) to try to resolve their differences by mediation.

2.  Unfortunately, despite efforts by those siblings and the very experienced mediator, and despite several extensions of time being granted by the court for that purpose, no agreement was reached.  It was acknowledged that the disputes would have to be addressed by way of fresh proceedings and at a hearing on 10 December 2015, the court granted an extension up to 31 January 2016 for the fresh proceedings to be commenced.

3.  In light of that, this court has to address the submissions on costs before us.  

4.  By a letter of 9 December 2015 from the solicitors for the Aunt (the 2^nd Defendant), the court and other parties were informed of the demise of the Aunt on 25 November 2015.  The solicitors have no further instructions in the matter.  Up to now, there has not been any application under Order 15 Rule 7 for a carry-on order to be made.  In light of that, we shall defer the matter on costs with regard to the Aunt in the appeal and in the court below, whether costs in her favour or costs against her. 

5.  As between the other parties, we shall first consider the costs of the appeal.

6.  We have read the submissions of the parties. The main protagonists in the appeal were Ben, Nora, Pat, Ian and Tim.  As between them, the appeal (and the proceedings below) is clearly hostile litigation.  In our main judgment, we held in favour of Ben, Nora and Pat on the key issues in the appeal which was resisted by Ian and Tim.  We do not think the incidence of costs of the appeal should depend on the outcome of the fresh proceedings.  The terms of the stay have been finally determined by us (accepting the submissions of Ben, Nora and Pat) and it is not apt to draw an analogy with the costs of an Order 14 appeal.  Notwithstanding what had happened in the court below, we do not find any cogent basis for departing from the general rule of costs to follow the event.  We therefore order that Ian and Tim shall jointly and severally pay the costs of Ben, Nora and Pat.  Such costs are to be taxed on party and party basis if not agreed, with certificates for 2 counsel.

7.  As regards the position of the Mother (the 14^th Defendant) and those in the 2^nd and 3^rd Families (the 6^th to 13^th, 15^th and 16^th Defendants), they are innocent parties unfortunately dragged into this dispute amongst the first family siblings.  They should not be out of pocket in terms of costs.  The costs should not be borne, as suggested by counsel for Ian, by the first family portion of the estate since we consider this piece of litigation as hostile litigation amongst the first family members and there is no reason why Ben, Nora and Pat should have to share in the payment of such costs.  We order Ian and Tim to pay jointly and severally the costs of the Mother, and the siblings in the 2^nd and 3^rd families in the appeal.  Such costs are to be taxed on indemnity basis if not agreed. 

8.  In respect of costs below, in light of our conclusions in the main judgment, the costs order of Poon J against Ben and Nora has to be set aside. 

9.  In the court below, the main protagonists were Ben, Nora, Ian and Tim, Pat adopted a neutral stance.  Pat did not appeal against the order as to costs made by Poon J in respect of her costs.  We shall leave it as it is. 

10.  At the same time, taking account of the ultimate outcome in this appeal, we do not consider any one of the four main protagonists has emerged as the successful party or parties.  Many of the points taken at that stage for Ben were rightly rejected.  In the present circumstances, we regard it as fair as between them to order each of them to bear their own costs below. 

11.  As for the Mother and the 2^nd and 3^rd Family siblings, again we see no reason why they should not be compensated for their costs incurred below.  We order that Ian, Tim, Ben and Nora shall jointly and severally bear their costs below, such costs are to be taxed on indemnity basis if not agreed, with certificate for 2 counsel for the 2^nd and 3^rd Family siblings.

12.  The above costs order in the appeal shall include the costs of the applications for costs.