LAU LEUNG WA AND ANOTHER v. LAU YUE KUI AND ANOTHER

CACV58/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIV REGION

COURT OF APPEAL

CIVIL APPEAL NO. 58 OF 2005

(ON APPEAL FROM HCAP NO. 10 OF 2001)

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CACV59/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 59 OF 2005

(ON APPEAL FROM HCMP NO. 1025 OF 2004)

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BETWEEN

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal on what is really a case management point.  It is an appeal as to how two trials should be heard, one is in respect of the Probate Action and the other is in respect of the Miscellaneous Proceedings Action.

2. Generally speaking, this court would not interfere with any direction which the judge below has given on a case management basis.  This court would only do so if it considered that the direction which had been given was clearly wrong and, unfortunately, in this case, I consider that the direction below was clearly wrong.  I do not propose to go into too much detail because, obviously, the facts of this case have not been ventilated fully in this court and there is about to be a trial very shortly.

3. Simply, the judge approached this, as he said in paragraph 32 of his judgment:

“Nevertheless, I accept the submission of counsel for the Administrator on his first point in HCAP 10/2001 (i.e. the Probate Action) in the way that it is framed by the plaintiffs in that matter, namely, that he is suing Lau Yue Kui in his personal capacity, not in his capacity as Administrator of the estate of the deceased”.

4. In my view the plaintiff in the Probate Action is suing the administrator in his capacity as the administrator.  He is not suing the estate, that is a different matter altogether, but he is suing the administrator.  That, I think, is where things have gone awry because, putting it quite shortly, I do not see how the Miscellaneous Proceedings Action can be properly conducted and the court can come to an informed decision on it until the issues in the Probate Action have been decided.

5. For that reason, put quite shortly, I consider that it is necessary for this court to allow this appeal and order that the hearing of the Miscellaneous Proceedings Action be adjourned to be considered by the judge hearing the Probate Action after he has heard the Probate Action.  He may decide that he should hear the Miscellaneous Proceedings Action then and there.  He may decide that he should not hear the Miscellaneous Proceedings Action himself.  He may decide to give directions.  The result of the Probate Action might well be that the administrator is removed because that is the relief which is sought and, in that situation, stock will have to be taken of the situation to see what the next step will be.

6. In these circumstances, in my view, the first thing that should happen is that the Probate Action should be tried and then the situation can be assessed at the end of that.

Hon Le Pichon JA:

7. I agree.

Hon Rogers VP:

8. As regards costs, we are in agreement that the costs here and below should be to the appellant, and the question as to whether the administrator can recoup his costs out the estate will have to be left to the trial judge in the Probate Action.