LEUNG SHUI LING NICOLE v. CHAN SIU SHEUNG HELEN

HCMP 2870/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2870 OF 2012

(on an intended appeal from DCMP NO. 1573 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Yuen JA (giving the judgment of the Court):

1.  This is the plaintiff’s appeal from a decision of Chow DJ in DCMP1573/2010 (“DCMP”) given on 24 July 2012 staying her application for interim payment under s.7 Inheritance (Provision for Family and Dependants) Ordinance Cap. 481 (“the Ordinance”). Leave was refused by the judge on 13 December 2012.

2.  The plaintiff sought leave to appeal from this court in HCMP2870/2012 (“HCMP”) which was commenced on 21 December 2012.  Subsequently the plaintiff applied for legal aid but her application was refused on 27 February 2013 as confirmed in writing in a letter from the Legal Aid Department dated 24 April 2013.

Background

3.  The relevant background facts may be summarized as follows.

3.1      In 1967, William Chow Wai-lam (“the deceased”) married the defendant.  They had no children.

3.2      On 20 November 1992, according to a person called Irene Leung Woon-lin (“IL”), the deceased made a will appointing her as executrix and leaving his entire estate to her as sole beneficiary.

3.3     Since 1997, according to the plaintiff, the deceased had a relationship with her and had been supporting her financially.

3.4     In August 2009, the deceased died.

4.  On 22 December 2009, the defendant obtained Letters of Administration to the deceased’s estate.     

5.  In June 2010, the plaintiff issued proceedings against the defendant in DCMP for financial provision from the deceased’s estate under the Ordinance.

6.  In November 2011 however, IL commenced HCAP30/2011 (“HCAP”) to propound what she alleged was the deceased’s will. 

7.  In January 2012, the plaintiff issued a summons in DCMP applying for interim payment of $2m from the deceased’s estate under s.7 of the Ordinance.  She filed an affirmation saying, amongst other things, that her doctor has recommended surgery for her heart condition. 

8.  The defendant however argued that the plaintiff’s application should be stayed, essentially on the ground that unless and until the HCAP was disposed of, the court would not know whether the defendant was even in a position to act as administratrix of the deceased’s estate, let alone make any payments therefrom.     

Chow DJ’s decision

9.  On 24 July 2012, Chow DJ upheld the defendant’s argument and stayed the plaintiff’s application for interim payment.  He also made an order nisi that the plaintiff should pay the costs to the defendant with certificate for two counsel.

10.  On 13 December 2012, Chow DJ refused leave to appeal and also refused to vary the costs order nisi.

Plaintiff’s application for leave to appeal

11.  On 21 December 2012, the plaintiff issued these HCMP proceedings seeking leave to appeal from this court.

12.  Essentially the plaintiff’s argument is that unless and until the grant of letters of administration to the defendant was set aside, the defendant remained the administratrix of the estate and therefore the judge should have considered:

- the urgency of the case,

- the plaintiff’s need to have cardiac surgery,

- the fact that the plaintiff would not have any share in the estate in any event,

- that the plaintiff’s request was for only 10% of the net asset value of the estate (on her reckoning), or if the court was not prepared to make an interim payment in the amount she sought, the judge should have considered granting her a smaller amount.  

The plaintiff also contends that the judge should not have awarded costs against her as he had only stayed the application and he had failed to consider the adverse effects of a costs order on her financial position.  

Events after issue of these proceedings

13.  Before we discuss these grounds, it is pertinent to record that on 24 December 2012, the HCAP was dismissed.  This was because IL had failed to provide security for the costs of the HCAP pursuant to an order of the Court given on 5 July 2012.

Discussion

14.  Coming back to the proposed appeal, we are not persuaded that there is a reasonable prospect of success.  The order for stay was made in the exercise of the judge’s discretion.  It is well-established that an appellate court would not normally upset such a decision unless there was an error of law or the decision was demonstrably flawed.

15.  In our view, the judge was entitled to take into account the fact that there was a pending probate action which sought to defeat the grant of the letters of administration to the defendant.  He was not in a position to determine the prospects of success of that action at that time.  Nor was the judge in a position to know IL’s stand on the plaintiff’s application for interim payment.  In the light of these circumstances the judge cannot be criticized for taking a cautious approach and ordering a stay of the application. 

16.  The subsequent dismissal of the HCAP of course created a change in circumstances which may lead to a lifting of the stay if the plaintiff were to restore the application for interim payment.  Consequently we will not comment on the possibility of the plaintiff succeeding on the other grounds of appeal, since the judge did not decide on those matters.    

17.  We consider that the judge was entitled in the exercise of his discretion to order that the plaintiff pay the costs of the hearing for interim payment to the defendant, as the hearing could have been avoided had the plaintiff agreed to stay the application.  Having said that, we take the view that it seems unduly generous to give certificate for two counsel in a relatively simple matter. However it would not be appropriate to give leave to appeal on that aspect only. 

Order

18.1   The application for leave to appeal is accordingly dismissed.

18.2   Pursuant to Order 59 rule 2A(8) RHC, it is ordered that no party may request this determination to be reconsidered at an oral hearing inter partes.

18.3   We make an order nisi that plaintiff is to pay the costs of this application to the defendant.  If there is no application to vary this costs order nisi within 14 days after the date appearing on this Judgment, the following directions shall apply:

(1)  the parties should seek to agree the quantum of costs;

(2)  if the parties are unable to agree the quantum of costs within       28 days after the date appearing on this Judgment,

(a) the plaintiff may within 14 days thereafter lodge written submissions in opposition to the skeleton bill of the defendant filed on 4 January 2013,

(b) the court will then carry out a summary assessment of costs.