MAK NGUN TAI AND OTHERS v. FUNG MING IP AND ANOTHER

HCAP 37/2015

[2026] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 37 OF 2015

________________________

________________________

BETWEEN

________________________

________________________

D E C I S I O N    O N    C O S T S

________________________

1.  In paragraph 77(7) and (8) of my Judgment dated 28 January 2025, I made the following order as to costs in favour of the plaintiffs against the 1^st and 2^nd defendants:

(1) Under paragraph 77(7), the 1^st and 2^nd defendants do jointly pay to the plaintiffs the plaintiffs’ costs of the action and the counterclaim (including all costs reserved, if any); and

(2) Under paragraph 77(8), further to (7) above, the plaintiffs be entitled to be first indemnified of their costs of the action and the counterclaim by the estate of the Deceased.

2.  On 18 February 2025, the 1^st defendant took out a summons dated 18 February 2025 (“D1’s Summons”):

(1) By paragraph 1(i) of D1’s Summons, the 1^st defendant asks that the 1^st and 2^nd defendants do jointly and severally pay to the plaintiffs the plaintiffs’ costs of the action and the counterclaim (including all costs reserved, if any) on a party and party basis; and

(2) By paragraph 1(ii) of D1’s Summons, the 1^st defendant asks that the plaintiffs shall not be entitled to be first indemnified of their costs of the action and the counterclaim by the estate of the Deceased.

3.  Also on 18 February 2025, the plaintiffs took out a summons dated 18 February 2025 (“Ps’ Summons”):

(1) By paragraph 1 of the Ps’ Summons, the plaintiffs ask for the addition of paragraph 77(9) to my Judgment in the following terms: “The plaintiffs’ costs awarded herein be allowed with certificate for two counsel”.

4.  The plaintiffs in their written submissions do not take issue with the costs order proposed under paragraph 1(i) of D1’s Summons. Accordingly, I make an order in terms of the same.

5.  As to paragraph 1(ii) of D1’s Summons, I accept the plaintiff’s submissions that in opposing the will in question, the plaintiffs were not only acting for their own interest, but also the interest of other beneficiaries under intestacy and more importantly, the interest of the estate of the Deceased as a whole. Clearly, the plaintiffs are entitled to recoup themselves out of the estate for their costs.

6.  However, it would be unfair for the estate to ultimately bear the costs incurred by the plaintiffs. Such costs should be borne by the losing parties condemned to pay them (i.e. the 1^st defendant and the 2^nd defendant).

7.  In my view, this is the precise effect of paragraph 77(7) and (8) of my Judgment. There is no question of double recovery. This is further reinforced by the plaintiffs’ undertaking given through counsel, agreeing to return to the estate of the Deceased whatever they recover against the defendants under paragraph 77(7) of my Judgment.

8.  The effect of my order is the same as the order made by the DHCJ Au-Yeung (as she then was) in Lau Chi Ying v Lau Wai Keung, HCAP 2/2009 (unrep, 30/12/2011) at §166 where Her Ladyship ordered that the winning party in that case should have costs of the action to be paid, in the first instance, out of the estate and to be recouped from the losing party.

9.  This is also consistent with the commentary at §40.20 of Tristram and Coote’s Probate Practice (33^rd ed) as follows:

“ If a party who successfully opposes probate is entitled to, and obtains, a grant either of letters of administration or of probate of another will, he may recoup himself out of the estate for his costs. He should proceed for recovery of his costs from any party condemned to pay them.”

10.  Accordingly, I would dismiss paragraph 1(ii) of D1’s Summons.

11.  I turn now to paragraph 1 of Ps’ Summons. This is opposed by the 1^st defendant but not by the 2^nd defendant. I have been reminded by the plaintiffs that this probate action was determined after a 19-day trial, that it involved around 2,000 pages of documents and in total 20 factual and two expert witnesses.

12.  It should further be noted that the certificate for two counsel is now sought for the costs of the whole action and the counterclaim, and not just for the trial.

13.  I am further reminded by the plaintiffs that there were, at the beginning of this action, the difficulty of obtaining the appointment of administrator pendente lite (“APL”) for the purpose of setting in motion investigation in the whereabouts of the missing assets from the estate. Subsequently, the structure and the content of the action had to be changed to set forth various new allegations arising from the findings of the APL’s reports.

14.  In those circumstances, I am of the view that the engagement of two counsel by the plaintiffs is warranted, especially given that they were facing two separate sets of defence legal teams at the same time.

15.  In the circumstances, I would grant the plaintiffs certificate for two counsel as prayed for under paragraph 1 of Ps’ Summons.

16.  Finally, out of abundance of caution, I further direct that the costs order under paragraph 77(7) and (8) of my Judgment, as amended by paragraph 1(i) of D1’s Summons, be made absolute.

17.  I will hear the parties on costs.