LILY CHEUNG v. THE OFFICIAL SOLICITOR AND ANOTHER

CACV 2/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2009

(ON APPEAL FROM HCMP NO. 635 OF 2006)

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J U D G M E N T

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Hon Stone J (giving the Judgment of the Court):

This appeal

1.  This is an appeal from the judgment of Poon J dated 27 October 2008 whereby, on an application first raised at the time of hearing a Master’s appeal against a judgment of Master Wong, the learned judge acceded to the plaintiff’s application, made pursuant to the provisions of RHC Order 15, rule 15, that for the purpose of the present action she be appointed as the representative of the estate of one Madam Luk Kim Ying.

2.  It is solely this decision, and the order for costs made consequent thereon, which forms the subject-matter of this appeal by the 2^nd defendant by her Amended Notice of Appeal dated 18 May 2009.  By a Respondent’s Notice dated 23 January 2009 the respondent plaintiff seeks to affirm the decision on other grounds.

3.  No appeal is mounted against the judge’s order upon the Master’s appeal with which he also then was seized, whereby the learned judge allowed in part the appeal against the striking out by Master Wong of the plaintiff’s claim against the 1^st defendant, the Official Receiver, nor is any complaint made against the decision of the learned judge that there was to be a stay of the present proceedings pending the determination of a parallel probate action, HCAP 3 of 2008, which also represents an ongoing dispute between, inter alia, the present plaintiff and the 2^nd defendant.

The underlying dispute

4.  Although much of the argument on the application before the learned judge below focused upon arcane matters of probate law, and although at first blush this appeal presents as an interesting debate, which if we may say so, in light of the extensive scholarly submission within the respective skeleton arguments, appears to have taken up a disproportionate amount of time and effort – upon, for example, whether or not the provisions of Order 15, rule 15 are engaged, and thus whether the learned judge was right to make the limited representative order that he did –  the underlying commercial reality is the more prosaic.

5.  Because at bottom this is a fight between two allegedly adopted daughters of the deceased, Madam Luk, over the assets of the estate of Madam Luk; the main focus is as to the ownership of properties hitherto held by Madam Luk, two of which had been held by Madam Luk and the 2^nd defendant as joint tenants, albeit Madam Luk’s interest in both appears to have been ‘gifted’ to the brother of the 2^nd defendant at a time prior to her death when there was doubt over her mental capacity.

6.  But this is to get ahead of the story, which cannot begun to be understood absent brief reference not only to the cast of characters, but also to no less than the three different pieces of litigation which have been spawned with reference to the assets of Madam Luk and thereafter, upon her death on 5 March 2006, to the assets allegedly forming part of her intestate estate.

The factual matrix

7.  First, the cast of characters.

8.  The plaintiff in the present action is one Lily Cheung; we will call her ‘Lily’.

9.  The 2^nd defendant in this action is one Luk Tung Mei; we will call her ‘Tung Mei’.

10.  These two ladies claim to be the sole adopted daughters of Madam Luk; naturally we do not know, and for present purposes express no view upon, the merits of their respective claims to this exclusive status.

11.  A gentleman named Cheung Wai Kwok is asserted to be, and to have been, Madam Luk’s husband consequent upon a union under customary Chinese law; he is not a party to the present proceedings, but, as we shall see, seeks the issue to himself of letters of administration of Madam Luk’s estate in a parallel probate action.

12.  Next, there is a gentleman named Luk Kam Yuen, whom is the brother of Tung Mei; it is to him that Madam Luk’s interest in two of the three properties allegedly was ‘gifted’ prior to her death. 

13.  Curiously, Mr Luk Kam Yuen has not been made a party to the present case either; given the remedy sought in the plaintiff’s Re-Amended Originating Summons, which inter alia seeks declaratory relief as to the joint ownership of the properties said to form part of Madam Luk’s estate, this is an oddity which we surmise must be the result of oversight.

14.  Finally, in this dramatis personae, we do not overlook the Official Solicitor, who was the 1^st defendant in the instant proceedings, and who now, as the result of that part of the judgment of Poon J from which there has been no appeal, has been struck from the present action. 

15.  However, the Official Solicitor remains named as the next friend of Madam Luk in an action taken out in 2004, prior to her death, but at a time when she was thought to be suffering mental incapacity, which action seeks to recover her share in the two properties as purportedly conveyed to Tung Mei’s brother.

16.  We turn now to the three separate actions which are concerned with the affairs of Madam Luk.  We take them in chronological order.

(i)  HCA 2498 of 2004

17.  By writ issued on 2 November 2004, Madam Luk Kim Ying (initially by the Director of Social Welfare and latterly by the Official Receiver qua her next friend) sued Luk Kam Yuen, the brother of Tung Mei (the 2^nd defendant in the present action) for declaratory relief that the Deeds of Gift made on 2 January 2003, and the accompanying Notices of Severance of Joint Tenancy of the same date regarding the two properties at respectively Tsuen King Garden, Tsuen Wan and Morning Ray Mansion, Mau Tau Wai Road are null and void, alternatively voidable and avoided by the plaintiff; the Indorsement of Claim further seeks, inter alia, an order that these Deeds of Gift and Notices of Severance of Joint Tenancy be set aside on the ground of the mental incapacity of Madam Luk, and an order that the defendant do reconvey the said properties to her, or to whom the court may direct, free and clear of incumbrance.

18.  On the available papers the Indorsement of Claim only is available; no other pleading is on file, and the last occurrence in this action appears to be a ‘Summons for Approval of Settlement’ dated 15 December 2005, apparently taken out by the Official Solicitor and requesting an order by consent that the terms of compromise in the form of the draft Order annexed be approved, and thereafter made an order of the court.

19.  This draft Order (the terms of which are not consonant with the claim in the Indorsement of Claim, and no doubt reflect the result of negotiations), recites that upon the defendant undertaking to the court to pay over all his share of the rental incomes from the two properties in question to the Official Solicitor for and on behalf of the plaintiff, and to authorize the Official Solicitor to deal with all tenancy matters of these properties “jointly with the co-owner, Madam Luk Tung Mei” during her lifetime, it was to be ordered that the said undertaking was to be registered in the Land Registry against the properties, that the proceedings be discontinued, and that there be no order as to costs.

20.  However, so far as we are aware the final document on file in this action is an Order of Master Levy dated 5 January 2006 which adjourns this application of the Official Solicitor for the approval of the settlement “to a date to be fixed with 30 minutes reserved”; thereafter there is silence, and we presume (but have not been told) that it is at this inchoate stage that this case now rests. 

21.  Nor, for that matter, do we know what is, or was, the position of the 2^nd defendant herein, Tung Mei, to this proposed ‘settlement’.  This is no mere prurient or passing interest, given that we gather from the affidavit evidence accompanying the originating application that it was Tung Mei, hitherto the joint tenant with Madam Luk of the two properties, whom herself had instigated HCA 2498 of 2004 by making complaint to the Director of Social Welfare upon learning that her brother, Luk Kam Yuen, had come into the picture, and now had been substituted as joint tenant owner with herself in lieu of her ‘mother’ – presumably, Tung Mei was concerned that the hallowed principle of ‘ius accrescendi’, the right of survivorship enjoyed by the remaining joint tenant  by the operation of which she would have had accrued to her sole title to the two properties on the death of Madam Luk, was in danger of being frustrated by reason of her brother taking advantage of Madam Luk’s mental condition.

22.  Regrettably we remain none the wiser about this matter.  Notwithstanding the five counsel appearing on both sides before us (two for the plaintiff and no less than three for the 2^nd defendant), aided by their solicitors, no-one had thought to make available to the court copies of the pleadings in these other actions, which we have obtained by ourselves calling for the court files.

23.  Nor, so far as we can see, has any thought been given by either side to producing an informative factual overview of the events engendered by Madam Luk’s tangled affairs, and of the consequent parallel litigation resulting therefrom, far less to any practical consideration of the best way forward for this litigation as a whole as opposed to narrow focus upon nice legal argument – such as the jurisdiction of the court to make the representation order as granted, or as to whether the plaintiff, Lily, herself had a sufficient ‘interest’ in the case in order to proceed with her originating summons – which debates seem to us to be of no immediate practical consequence.

24.  However, this is to digress; there remain the two other actions which are of relevance in our deliberations.

(ii)  HCMP 635 of 2006

25.  This, of course, is the present proceeding in which the learned judge below made both his order granting the application of the plaintiff for a representative order – as we have said, the sole subject of the present appeal – and wherein the judge also had ruled upon the appeal against the striking out of the claim as made against the Official Solicitor, a decision the merit of which, as earlier noted, is not now before us.

26.  The plaintiff, that is Lily’s, originating summons was issued on 29 March 2006; it was amended on 19 June 2006, and re-amended on 9 January 2006, albeit this final amendment was consequent upon the judgment of Poon J granting the representative relief sought by the plaintiff contemporaneous with the Master’s appeal from the strike out ordered by Master Wong.

27.  For present purposes it does not greatly matter, but it seems tolerably clear that the representative order which the learned judge was persuaded to grant at the request of the plaintiff’s leading counsel, Mr Dennis Chang SC, who then appeared before him, was aimed at fulfilling two roles: first, it was sought in a bid to ‘save’ the Master’s appeal, the Master having held that, absent a representative order Lily had no locus thus to pursue the Official Solicitor, and second, and perhaps equally as important, it was no doubt considered warranted as a matter of fundamental principle in light of the nature of the relief as sought in the originating summons.

28.  Be that as it may.  The relief sought in the amended originating summons, as issued against the Official Solicitor as 1^st defendant and Tung Mei as 2^nd defendant, is threefold:

By paragraph 1(a), a declaration is sought that the properties specified in the Schedule were purchased by the deceased, Madam Luk, and hence the 2^nd defendant, Tung Mei, had no beneficial interest therein, or only such as might be represented by such proportion of purchase monies as she herself may have contributed; paragraph 1 (b) (which was added by the first amendment to the originating summons) seeks a declaration that the properties do form part of the estate of Madam Luk to the extent and proportion of the amount of her contribution, and that the 2^nd defendant held and “still holds” the properties in trust for the deceased’s estate to the extent and proportion of the deceased’s contribution;

Paragraph 2 seeksan order that Lily Cheung be appointed as the administrator of Madam Luk’s estate, “with the power and right as a general administrator, but excepting the power to distribute the residue of the estate as provided under s. 40 of the Probate and Administration Ordinance, Cap 10,” with certain specific directions: namely, that the administrator be empowered to take such steps as necessary to ascertain and verify the extent of Madam Luk’s assets in Hong Kong, that the administrator be authorized to take over conduct of the legal proceedings in HCA 2498 of 2004 in the name of Madam Luk or on her behalf as administrator (and in place of the 1^st defendant Official Solicitor), and to instruct lawyers and other professionals for this purpose, with costs to be paid from the estate, and that the administrator is to be remunerated for her service and her costs “to be taxed on an indemnity basis” to be paid from Madam Luk’s estate, and that the administrator is to act without providing security;

Lastly, by paragraph 3, an order for inquiry is sought as to the damage suffered by the estate, if any, and the amount that the 1^st and 2^nd defendants ought to compensate the estate.

29.  The Schedule to the originating summons, however, specifies three, not two, properties: namely, the two properties in Tsuen King Garden, Tsuen Wan and Morning Ray Mansion, Mau Tau Wai Road, in which Madam Luk’s interest allegedly had been ‘gifted’ to Luk Kam Yuen, and which are the subject-matter of HCA 2498 of 2004, plus a third property, a flat in Majestic Park, Farm Road, Kowloon, of which we have located no other reference in the accumulated papers, and which so far as we know does not appear to have been the subject of prior conveyance by Madam Luk.

30.  In this connection we have been told by counsel at this hearing that all three flats nevertheless have been subject to registration of a lis pendens, thereby (presumably) precluding the sale thereof, albeit whilst the lis pendens with regard to the first two properties clearly is that of HCA 2498 of 2004, we are at a loss to know the identity of the lis as apparently also registered against Majestic Park.

31.  Finally, the plaintiff’s amended originating summons recites that the application is made pursuant to ss 36 and 40 of the Probate and Administration Ordinance, Cap 10, that the background facts leading the application are stated on affirmation by Lily Cheung, the plaintiff, and that “in summary” the ground of the application is that the estate of Madam Luk Kim Ying, now deceased, is “at risk”.

32.  We pause to note two matters in particular arising from the substance of this originating application: first, it is alleged that the 2^nd defendant, Tung Mei, herself held the properties in trust for the deceased’s estate – it will be recalled that by action some two years earlier, in HCA 2498 of 2004, complaint therein is made that her mother’s joint interest in two of these properties wrongly had been subject of conveyance to Tung Mei’s brother; and second, that the limited representation order as granted by the learned judge “for the purpose of this action”, does not sit well with the directions sought in paragraph 2 of the amended originating summons that, excepting the power to distribute, Lily Cheung should be appointed as administrator of Madam Luk’s estate “with the power and right as a general administrator”.

33.  Lastly under this head, there requires to be placed within the factual matrix the injunctive relief sought, and obtained, by Lily Cheung subsequent to the issue of her originating application.

34.  It is this.  By summons dated 23 March 2006, Lily sought an order that Tung Mei, the 2^nd defendant, be restrained from selling, mortgaging, charging and otherwise disposing of the three properties listed in the Schedule to the originating summons, and further that Tung Mei “be restrained from meddling with the affairs of Madam Luk Kim Ying, the deceased, in whatever manner pending further order.”

35.  By Order dated 31 March 2006 of Deputy Judge A.  To, this application for interlocutory injunctive relief was adjourned upon the 2^nd defendant’s undertakings.

36.  These undertakings were that she would not seek to sell, mortgage, charge or otherwise dispose of the three properties until 12^th May 2006, the return date of the summons, and that she would not apply for the death certificate of Madam Luk nor to proceed further with the funeral arrangements until the return date.

37.  Thereafter, on the return date of 12 May 2006, by Order of Waung J the plaintiff’s application for injunctive relief was adjourned sine die with liberty to restore, upon the specific undertaking of Tung Mei, the 2^nd defendant, “not to spend, dispose of, transfer or otherwise part with the rental income received or to be received” from the Tsuen King Garden property and the Morning Ray Mansion property “until further order”, save that the 2^nd defendant was authorized to use the rental incomes to pay for the normal recurrent expenses of the properties, such as management fees, rates and Government rent, and further to pay Madam Luk’s half share of the existing mortgage payment in respect of the property at Majestic Park, Farm Road, Kowloon.

38.  Although on its face this appears a not unreasonable resolution pro tem, the difficulty lies in the fact that with regard to the first two properties the 2^nd defendant clearly was in no position solely to give the undertaking as to the rental received because, as we have seen, Madam Luk’s share in these properties, hitherto held in joint tenancy with Tung Mei, by this stage purportedly had been ‘gifted’ to her brother, Luk Kam Yuen, the defendant in HCA 2498 of 2004, against whom such conveyance had (at her instigation) been sought to be set aside. 

HCAP 3 of 2008: the probate action

39.  In our view, this action represents the key to resolving the procedural difficulties besetting this case, and points the most practical and cost-efficient way forward.

40.  By writ issued on 11 March 2008, Lily Cheung issued this proceeding against the 1^st defendant, Cheung Wai Kwok, who claims to be the lawful husband of Madam Luk, and against the 2^nd defendant, Tung Mei, allegedly the adopted daughter of Madam Luk.

41.  In the Re-Amended Statement of Claim, Lily claims to be the lawfully adopted daughter of Madam Luk, such adoption occurring “under the Chinese custom in or around 1951 in Hong Kong soon after the plaintiff’s birth”.

42.  As such, Lily avers that she is the “only person entitled to the estate”, and thus she applied on 21 November 2007 to the Probate Registry of the High Court for letters of administration under HCAG 012391/07.

43.  She recites that on 9 May 2007 the 1^st defendant also has made a like application to the Probate Registry, under HCAG 004655/07.

44.  It is averred that the 1^st defendant, Mr Cheung, was not the husband of Madam Luk at the time of her death because “there never has been any valid marriage between them”, and in any case, if there had been, which is denied, Madam Luk and Mr Cheung had divorced “sometime before 1957” so that Madam Luk could marry a person called Mr Chao Cheung Yok on 5 January 1957 in Hong Kong; however it is further pleaded that this marriage did not last, Mr Chao and Madam Luk divorcing “sometime before 14^th October 1981”, and that thereafter the deceased, Madam Luk, had remained single.

45.  As for the 2^nd defendant, Tung Mei, the pleading rehearses that the 2^nd defendant claims to have been adopted by Madam Luk in China in 1984, and that as such she claims a share in the estate of the deceased.

46.  This adoptive status also firmly is disputed by the plaintiff, it being averred that the 2^nd defendant is not the lawfully adopted daughter of the deceased “as there never was any adoption application validly made by the deceased and officially approved in China”, and thus the 2^nd defendant is not a person entitled to share in the estate: hence “the plaintiff is the only person entitled to the estate”.

47.  Happily, and perhaps remarkably in the tangled circumstances arising from Madam Luk’s demise, the pleadings now are fully constituted in this case.

48.  The 1^st defendant, Madam Luk’s ‘husband’, has filed an Amended Defence and Counterclaim dated 26 February 2009.  He refutes the allegation that the deceased had married Mr Chao on 5 January 1957, and, if which is denied, this in fact had occurred, then such union is void and bigamous.

49.  Mr Cheung asserts that he is the lawful husband of Madam Luk, that Tung Mei, the 2^nd defendant, is the lawfully adopted daughter of the deceased (he avers that he will amend his application for the grant of letters of administration to add the 2^nd defendant “as a beneficiary to share in the estate of the deceased” once he obtains judgment in this action), and he specifically denies that the plaintiff, Lily, “was related to the deceased as alleged or at all.”  His position is that he alone is entitled to apply for letters of administration, and he counterclaims for the dismissal of the plaintiff’s claim, and for the grant to himself of letters of administration; he also asks by this counterclaim for declaratory relief as to the invalidity at law of the purported marriage between Madam Luk and the said Mr Chao Cheung Yok.

50.  The Defence of Tung Mei, the 2^nd defendant, avers that at all material times “the 2^nd defendant is the only lawfully adopted daughter of the deceased and entitled to a share in the estate of the deceased”, and the plaintiff’s interest, and claim to the estate, is denied.  She also asserts that the 1^st defendant was the lawful husband of Madam Luk.

51.  By an Amended Reply and Defence to Counterclaim, dated 31 March 2009, the plaintiff joins issue with the pleaded assertions of the 1^st and 2^nd defendants, and renews her allegations as to their respective status and entitlement to a share in the estate.

52.  Accordingly, the pleadings in this case appear to be closed; we have no information as to whether there yet has been discovery by list, or what, if any, case management directions now have been made.

53.  For present purposes, however, this outline summary is sufficient to bring the factual background into necessary focus.

The argument on this appeal

54.  We earlier have referred to the extensive legal scholarship contained within the detailed skeleton arguments filed both by the plaintiff and the 2^nd defendant upon this appeal, skeleton arguments which in turn refer and cross-refer to earlier skeleton arguments used at the hearing below; we pause to note that this form of skeleton argument ‘by incorporation’ most certainly is not the appropriate way to approach a factually-tangled case of this nature, and that the court neither has the time (nor inclination) to perform its own investigation in terms of that which may, or may not, have been argued by the parties in past hearings.

55.  Be that as it may.  On this appeal the 2^nd defendant in its skeleton basically identified four separate arguments in support of its submission that the learned judge in the court below had been in error in making the representative order that he did.

56.  In summary form this argument may be identified thus:

first, that the court had no jurisdiction to make such an order pursuant to the provisions of Order 15, rule 15; 

second, that the plaintiff was not “the right candidate” for appointment;

third, that in allowing the amendment to accord the plaintiff representative status, the judge had fallen foul of the requirement in O 20 rule 5(4) that an amendment should be allowed “only when it is just to do so”; and

fourth, that the learned judge had failed to give adequate reasons for the course adopted, and that such was “indispensable in a fair hearing”.

57.  In support of the appeal counsel for the 2^nd defendant filed a list of 12 authorities, whilst the skeleton argument of the plaintiff replied in kind to these arguments, including also a list of some 18 “additional authorities”, plus a list of 14 authorities referred to in the court below.

58.  As matters transpired none of this material, doubtless expensively marshalled, was of immediate import.

59.  Moreover, whilst the court did not entertain oral argument upon any of the specific complaints raised by the appellant, we are constrained to say that only one of the appellant’s arguments, namely that of jurisdiction, appears at first blush to be worth detailed consideration (as issues of jurisdiction inevitably are); whilst initially we are disinclined to think that there is anything in the point, nevertheless we recognize that as matters currently stand we have not given the issue sufficient attention finally to decide it.

Decision

60.  The real irony of this case – revealed only once the factual background properly was untangled and appreciated – is that this appeal against the order of Poon J granting the plaintiff the representation order is, in purely practical terms, of no immediate significance in the further conduct of this case.

61.  We say this in light of the all-important fact that the learned judge further granted a stay of the present proceedings pending determination of the probate action in HCAP 3 of 2008 or until further order; as a matter of practical politics it would have made no difference to this action, which now stands duly stayed, if the judge had decided the other way, and had refused the representation order.

62.  That this was the position was accepted by Mr Kenneth Chan for the 2^nd defendant/appellant at the outset of the appeal; in response to questions from the Bench he was driven to accept that the practical purport of this appeal was purely costs’ driven, and that his real aim was to reverse the order for costs granted by the learned judge against his client upon the plaintiff’s application for the representation order, of which complaint now so vociferously is mounted.

63.  We do not find this position satisfactory.  Why this court should have had to devote a great deal of time to rolling up its sleeves and sorting this matter out, only to find that its efforts are to have no immediate and constructive consequence for the immediate conduct of this litigation, is not a situation which commends itself to us.

64.  Whilst we appreciate that the 2^nd defendant had (and still has) a jurisdiction argument regarding the grant by Poon J of such representative order, there would have been nothing to prevent a healthy dose of common sense being injected into this case from both sides; thus, whilst an appeal could have been lodged purely in order to preserve the 2^nd defendant’s position, thereafter there could have been agreement with the plaintiff’s representatives that such appeal should lie on the file to await the determination of HCAP 3 of 2008.

65.  We have remarked earlier in this judgment that in our view it is this probate proceeding which holds the key to unlocking this case, and which will contribute fairly in resolving the parallel litigation as now exists.

66.  Were the plaintiff, Lily, ultimately to succeed in this probate action, and duly to obtain the grant of letters of administration, this would align with the present position whereby she presently enjoys the limited representation order as granted by the learned judge; she also then, if thought appropriate, would be in the position on behalf of the estate to take over conduct of HCA 2498 of 2004 in lieu of the Official Solicitor, whose name at least remains on the title to this case.

67.  Conversely, if and in so far as Lily’s claim to be Madam Luk’s adopted daughter is dismissed, and the status of Tung Mei and of Mr Cheung, the alleged husband, carries the day, and if as a consequence Mr Cheung is granted letters of administration, then equally clearly Lily cannot and, subject to appeal, doubtless would not, attempt to resist the substitution of Mr Cheung, as grantee, in the further conduct (if any) of the present case, albeit since there appears to be no dispute between Mr Cheung and Tung Mei as to the status of each other, we doubt whether there would be perceived any necessity for the present proceedings to go further.

68.  Moreover, the resolution, one way or the other, of HCAP 3 of 2008, seems to us to be likely practically to inform the costs’ position in the present case, and thus to be likely to remove the necessity for argument upon what we have termed the 2^nd defendant’s ‘jurisdiction point’; in this regard one cannot be certain – we can conceive of a scenario where this may not turn out to be the case – but in our view the overwhelming probabilities are that with the determination of the rival claims in the probate action, extant peripheral arguments such as this are likely effectively to fall away.

69.  We also wish to say that we understand why, in the exercise of his discretion, the learned judge below chose to stay the proceedings in the present case pending determination of HCAP 3 of 2008; clearly his entirely laudable wish was to ensure, so far as he was able, the preservation of the estate pending judicial clarification of the status of the differing claimants, and we note from the transcript of the proceedings below that leading counsel for the plaintiff, Mr Chang SC, in addition to submitting for the grant of a limited representation order, also argued that appropriate case management might well mandate a stay of the present action pending the constitution of the proper administrator (vide transcript, page 282 et seq).

70.  During our interchanges with counsel during the appeal, Mr Wong for the plaintiff respondent commented that he also did not know “why he was here”, and in all the circumstances he urged the court to dismiss this appeal with costs.

71.  For his part, Mr Chan firmly resisted this course.  Whilst he accepted the commonsense of a stay of this case pending the trial of the probate action, he had not, he pointed out, had the opportunity to address the court on the jurisdiction of the court to make the representative order pursuant to Order 15, rule 15; and in any event, he said, his client had been landed in this appellate situation solely because of that which he insisted was the plaintiff’s wholly misguided application, then taken out in a bid to bolster the plaintiff’s appeal against the Master’s strike out of the 1^st defendant Official Solicitor, for the grant of the representation order presently the subject of this appeal.

72.  It is fair to say that at one stage we were tempted to achieve some finality and simply to accede to Mr Wong’s request to dismiss this appeal with costs, alternatively to award the costs of the hearing on 9 June 2009 to the plaintiff in any event; ultimately, however, we did not consider that this would be fair to the 2^nd defendant, having not accorded counsel a chance fully to be heard upon that which he no doubt considered his best point (and in our preliminary view the only point which offered the scintilla of chance of success in this appeal).  Not only did we consider it appropriate not to pronounce upon the ‘jurisdiction issue’ pending the determination of the status of the various parties in the probate action, but in terms of Mr Wong’s alternative costs’ submission, we note that there had been no suggestion emanating from the plaintiff’s side to the effect that this appeal should be deferred pending trial of HCAP 3 of 2008, notwithstanding Mr Wong’s clear acceptance of our view that clearly this was the better course for the parties to have adopted.

73.  In the event, and in our view entirely sensibly, neither side ultimately raised any real objection to the notion of adjourning this appeal for the reasons canvassed during argument.

Order

74.  It follows from the foregoing, therefore, that our order on this appeal is as follows:

(i)  The 2^nd defendant’s appeal pursuant to her Amended Notice of Appeal is to stand adjourned sine die, with general liberty to restore after the determination of HCAP 3 of 2008, or of any appeal from such determination;

(ii)  The proceedings in HCAP 3 of 2008 be expedited, and that a judge of the Court of First Instance be appointed to case-manage these proceedings in order to ensure such expedition;

(iii)  The costs to-date of and occasioned by this appeal be reserved.

Finally

75.  We express the hope that, in light of the observations in this judgment, the various parties involved (and their legal representatives) will recognise that it is in their interests to co-operate in order to resolve the various issues arising in terms of the representation and administration of Madam Luk’s estate.

76.  We appreciate that it is rare indeed that an adjournment order merits a judgment of this length, or indeed any judgment at all, but in the circumstances we take the view that this judgment not only will inform the judge appointed to ‘case-manage’ HCAP 3 of 2008 of the overall significance of that case, but further will serve as an aide-memoire in the unlikely event that this appeal were to return to this court.