CHOW LILY v. CHOW WAI WAI VIOLET AND ANOTHER

HCAP 22/2019

[2025] HKCFI 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

BETWEEN

_________________

_______________

DECISION

________________

INTRODUCTION

1.  On 30 October 2024, this Court handed down a Decision ([2024] HKCFI 3027) (“the Decision”) pursuant to which the plaintiff was granted leave to further amend her Re-Re-Amended Statement of Claim. The following costs order nisi (“the Order Nisi”) had also been made:

(1) The plaintiff’s costs of the substantive hearing on 9 October 2024 (“the Substantive Hearing”) be in the cause of the “undue influence” issue (that means the plaintiff can only recover her costs from the defendants if she succeeds in her new claim of undue influence), with certificate for 2 counsel;

(2) Costs of and occasioned by the amendments (including the costs of the call-over hearing) be to the defendants in any event.

2.  While the defendants do not object the 2 orders under the Order Nisi, they now apply to vary the Order Nisi (“the Variation Application”), and contend that an additional order be made, namely, their costs of the Substantive Hearing should be in the cause (in the cause generally, rather than being limited to the “undue influence” issue), with certificate for 2 counsel.

3.  The defendants rely on the following grounds in support of this application:

(1) The amendment application has been taken out very late;

(2) The plaintiff has not put forward any reason to explain the delay;

(3) The plaintiff has completely disregarded cost-effectiveness and procedural economy (and hence contrary to the underlying objectives of the CJR) in her conduct of this litigation.

LEGAL PRINCIPLES

4.  I have already set out the applicable legal principles in [35] to [37] of the Decision, and I would not repeat them herein.

DISCUSSION

5.  In the Decision, this Court has explained the reasons why the Order Nisi was made in such a way:

“38. In the present case, the amendment application has been admittedly made late, and the plaintiff has not put forward any reason by way of Affidavit to explain her delay, particularly when the lack of plea of undue influence has been specifically mentioned by DHCJ Leung in his Decision dated 30 July 2020 (yet the application was not made until May 2024).

39. I have not lost sight of the plaintiff’s citation of a number of matters mentioned in the various witness statements and affirmations in the Proposed Amendments. It may therefore be said that the plaintiff has actually got the idea of running the new case of undue influence after seeing the defendants’ witness statements. However, it is noted that the witness statements concerned had been exchanged back in July 2022. Hence, the taking out of the amendment application in May 2024 is by any standard very late.

40. It is thus reasonable for the defendants to oppose this application.

41. Furthermore, the Proposed Amendments are on a distinct issue – undue influence. I hold the tentative view that, in the circumstances of the present case, it would not be fair if the defendants are ordered to bear the plaintiff’s costs of the hearing forthwith. The fairer order would be for the plaintiff’s entitlement of her costs of the substantive hearing to be linked with the ultimate success of this distinct issue. Since the defendants have failed to persuade the Court in dismissing the Summons, I do not think they should be able to get their costs of the hearing no matter what happens at the trial.”

6.  In the present application, the defendants rely very heavily on the plaintiff’s unexplained delay in the making of the amendment application. It was said that because this Court accepted that it was reasonable for the defendants to oppose the amendment application, the defendants should not be forbidden to recover their costs of the Substantive Hearing in the event they succeed at the trial.

7.  However, as explained in the Decision, it should be remembered that, after all, the defendants have failed to resist the plaintiff’s amendment application. In my view, it would not be right for the defendants to be able to recoup their costs of the Substantive Hearing in such circumstances, even if they succeed at the trial. Further, but for the Court’s view that they were reasonable to oppose the application by reason of the unexplained delay, this Court would have ordered the defendants to bear the plaintiff’s costs of the Substantive Hearing forthwith, and in such a case they would not be able to recover their own costs of the Substantive Hearing even if they succeed at the trial. In other words, this Court has already taken the “unexplained delay” factor into account when the Order Nisi was made, just that it was not to the effect which the defendants now pray for.

8.  The defendants have referred this Court to the case of GTC Industries Limited & Others v Lee Man Hoi Ocean & Others (HCA 600/2012, unreported, 20 June 2014), in which DHCJ Wilson Chan (as he then was) ordered that the costs of the substantive hearing therein be in the cause, on the basis that the plaintiff’s application to amend the Statement of Claim had been made late in the day and no good reason had been given. However, with respect, that is only an illustration as to how the Court’s discretion might be exercised. This Court is not bound by that decision, which, in any event, by no means was laying down any legal principle as such.

9.  The defendants then argued that the plaintiff had made numerous interlocutory applications, one after another, and if failed, would go on to appeals, irrespective of whether the same was truly meritorious or not. It was said that this sort of conduct is contrary to the underlying objectives of the CJR.

10.  Although the Court is entitled to take all circumstances into account, I do not think the Court should place too much emphasis on the plaintiff’s conduct in relation to other interlocutory applications. After all, the most relevant factors herein must be those surrounding the making of the present amendment application and the result thereof.

ORDER

11.  For reasons of the aforesaid, I dismiss the defendants’ Variation Application. The Order Nisi is hereby made absolute.

COSTS

12.  Costs should follow the event.

13.  I order that the defendants shall bear the plaintiff’s costs of the Variation Application, to be summarily assessed if not agreed.

14.  For the avoidance of doubt, I should make it clear in the light of the straight-forward nature of the matter, I refuse to grant certificate for 2 counsel.

15.  In the event the parties cannot agree on the amount of the plaintiff’s costs payable, the plaintiff shall lodge and serve her statement of costs within 21 days hereof. The defendants shall lodge and serve their statement of objection within 7 days thereafter. Summary assessment of the costs of the Variation Application will be conducted on paper (no matter whether any statement of objection is lodged by the defendants within time) thereafter. The costs shall be paid by the defendants within 14 days upon agreement or assessment, as the case may be.