WANG DIN SHIN v. NINA KUNG

HCAP8/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION ACTION NO. 8 OF 1999

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DECISION

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1.  By summons dated 11 March 2005, the defendant applies to vacate the date fixed for hearing the summons issued by the Joint Administrators pendent lite (“the Administrators”) requiring the defendant to answer two sets of questionnaires (“the Administrators’ Summons”).  Paragraph 2 of the defendant’s summons also seeks an extension of time to file evidence in opposition to the Administrators’ Summons, which was disposed of at the beginning of this hearing.

2.  The sole issue that requires determination is the application to vacate the hearing date of 6 April 2004 and to adjourn the Administrators’ Summons.  The reason for the application is that the defendant is appealing against my decision refusing to recuse myself from hearing the Administrators’ Summons and the defendant’s earlier summons for an adjournment of the Administrators’ Summons pending the appeal to the Court of Final Appeal in the probate proceedings (“the recusal decision”).  The Notice of Appeal on the recusal decision was filed shortly before this hearing.  Both the Administrators and the plaintiff oppose the application.

3.  The defendant puts her present application on the basis of an adjournment application.  The Administrators however regards the application as an application to stay their summons pending appeal. In my view, while no doubt the defendant’s present application is not an application for stay of execution of an order or judgment pending appeal, it is tantamount to an application to stay the Administrators’ Summons pending the appeal to the Court of Appeal on the recusal decision.  The authorities cited by Mr Jamison for the Administrators in his submissions are of course cases on stay of execution pending appeal.  That however does not mean that the principles discussed in those cases, in particular, the need to show a bona fide appeal, are entirely irrelevant.

4.  The starting point in considering this application is to recognize that the pending appeal is an interlocutory appeal arising out of the Administrators’ Summons.  The court has always taken the view that a substantial hearing, be it an application or a trial, should not be held up or de-railed because of a connected interlocutory appeal, save in exceptional circumstances.  The underlying rationale is to avoid satellite litigation and unnecessary delay.

5.  The burden is on the party seeking the stay or adjournment pending appeal to demonstrate there are justifiable exceptional circumstances.  It is not for the opposing party to show why the scheduled hearing or trial should not be adjourned.  Likewise, the opposing party and, in this case the Administrators, does not bear the burden of showing an urgency in having to proceed with the hearing or trial as scheduled.  If there is urgency, it will only make it more difficult to justify staying or adjourning the scheduled hearing.

6.  In the present case, the only ground advanced by the defendant in support of her application is that if her appeal against the recusal decision were successful, the costs and resources incurred for the Administrators’ Summons would be wasted.  This submission must be premised on the assumption that the defendant would fail in her resistance to the Administrators’ Summons.   Be that as it is, the reason advanced does not amount to any exceptional circumstances.  The risk identified by the defendant commonly exists where parties wish to appeal against interlocutory orders and directions when the application or trial is ongoing.

7.  It is submitted that the adjournment is required for good case management purpose and that the Administrators will not be forever deprived of the opportunity to have their summons heard.   I do not agree.  Considering the present status of the court’s dairy,  the appeal on the recusal application is unlikely to come on shortly.  Even if it were, the Administrators’ Summons is unlikely to be restored for hearing before the conclusion of the appeal to the Court of Final Appeal in the probate proceedings.  It is no secret that with the conclusion of the appeal in the Court of Final Appeal, it is very likely that the Administrators’ office will cease.  The Administrators’ Summons would in that scenario never get to be heard.

8.  I note too that there is the distinct possibility of the defendant seeking to appeal further in the event her appeal to the Court of Appeal on the refusal decision is unsuccessful.  I say this in view of the pattern of litigation exhibited in these administration proceedings.  If this were the case, the chance of the Administrators’ Summons being heard before their office expires would be even slimmer.

9.  The defendant has therefore not demonstrated good or exceptional circumstances justifying vacating the hearing date of 6 April 2005 and adjourning the Administrators’ Summons pending the appeal to the Court of Appeal.  The application should be dismissed.

10.  The Administrators through Mr Jamison have advanced arguments on the lack of bona fide and merits in the defendant’s pending appeal, which Mr Tsang for the plaintiff adopts.  Given my aforesaid conclusion, it is not necessary to go into these aspects.

11.  For the reasons stated above, paragraph 1 of the defendant’s summons is dismissed.  With no argument to the contrary, I further order that the costs of the defendant’s summons be to the plaintiff and the Administrators against the defendant, to be taxed if not agreed.   The Administrators’ own costs to be paid out of the Estate on trustee basis.