YE JINXIANG AND ANOTHER v. YE XIUXIA

CACV 262/2022

[2022] HKCA 1870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 262 OF 2022

(ON APPEAL FROM HCMP 1148/2021)

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DECISION

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Hon Chow JA:

1.  This is the 1^st Plaintiff’s application by summons dated 22 November 2022 (“the Summons”) for an order that the personal representative of the Defendant do represent the estate of the Defendant in this appeal (“the Appeal”) pursuant to Order 15, rule 6A of the Rules of the High Court, Cap 4A.

2.  The background facts leading to the present appeal can briefly be stated as follows.

3.  Madam Kan Hak Ming, deceased (“the Deceased”) was a tsip of the late Mr Yip Ching Bong[1] (“Mr Yip”).  The Deceased passed away in 2005.

4.  The 1^st Plaintiff, Yip Kim Fan William[2] (the husband of the 2^nd Plaintiff), and the Defendant were the children of Mr Yip and his lawful wife (Wong Fuk[3]).  They were also beneficiaries of the estate of the Deceased.

5.  The 1^st Plaintiff was formerly the administrator of the estate of the Deceased, letters of administration thereof having been granted to the 1^st Plaintiff pursuant to the judgment of Wilson Chan J dated 20 October 2016 in HCAP 25/2012 (“the Main Action”). By further judgment of Wilson Chan J dated 2 July 2021 in HCMP 754/2019, the 1^st Plaintiff was removed as the administrator, and Mr Lee Sui Hong Jerome was appointed as the new administrator, of the estate of the Deceased.

6.  By an Originating Summons dated 12 August 2021 issued in HCMP 1148/2021, the Plaintiffs applied for a retrospective Beddoe Order to cover the 1^st Plaintiff’s costs incurred in the Main Action and some other related legal proceedings, the details of which it is not necessary to set out in this decision (“the Beddoe Application”).

7.  The Defendant was not represented and did not appear at the substantive hearing of the Beddoe Application before K Yeung J (“the Judge”) on 27 April 2022.  Pausing here, I should mention that there is an order made by Deputy High Court Judge Paul Lam, SC dated 20 September 2021 that the service of the Originating Summons and all documents in HCMP 1148/2021 on the Defendant may be effected by serving them on Messrs Chan & Chan, being the Defendant’s solicitors in some other related legal proceedings.

8.  In a judgment handed down on 7 June 2022, the Judge dismissed the Beddoe Application, with costs to be borne by the Plaintiffs personally.  It is against this judgment that the 1^st Plaintiff has brought the present appeal by a notice of appeal dated 5 July 2022 (subsequently amended pursuant to the order of Kwan VP dated 26 August 2022).

9.  On 12 October 2022, the Registrar gave notice that the Appeal shall be heard on 31 January 2023.

10.  On 29 October 2022, the Defendant passed away. The 1^st Plaintiff (through his solicitors) first came to know about the death of the Defendant on 31 October 2022 in the course of another set of legal proceedings between the new administrator, the Plaintiffs and the Defendant in HCMP 106/2022.

11.  By reason of the passing away of the Defendant, the 1^st Plaintiff issued the Summons on 22 November 2022, seeking the following orders:

“1. Leave be granted to appoint the personal representative of [the Defendant] to represent the estate of [the Defendant] to carry on these proceedings on the ground of her death.

2. [Consequential amendments to the Amended Notice of Appeal].

3. The service of all documents of these proceedings herein on the Defendant may be effected by serving them on Messrs. Chan and Chan.

4. The service of the re-amended Notice of Appeal on the Defendant be dispensed with …

5. The costs of this application be paid out of the Estate of the [Defendant] …”.

12.  As confirmed by Mr Chu at today’s hearing, the 1^st Plaintiff’s application is made under Order 15, rule 6A of the Rules of the High Court, which states as follows:

“Proceedings by and against estates

(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

(2) Without prejudice to the generality of paragraph (1), an action brought against “the personal representatives of A.B. deceased” shall be treated, for the purposes of that paragraph, as having been brought against his estate.

(4) In any such action as is referred to in paragraph (1) or (3) -

(a) the plaintiff shall, and the defendant, the personal representatives of the deceased or any person interested in the deceased’s estate may, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party of the proceedings, and in either case for an order that the proceedings be carried on by or against the person so appointed or, as the case may be, by or against the personal representative, as if he had been substituted for the estate”.

13.  Also of relevance for the purpose of the present discussion is Order 15, rule 7:

“Change of parties by reason of death, etc.

(1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.

(2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party.”

14.  Three are a number of problems with the 1^st Plaintiff’s application.

15.  First, the 1^st Plaintiff’s reliance on Order 15, rule 6A seems to be misplaced.  As stated in Hong Kong Civil Procedure 2023, Vol 1, paragraph 15/6A/1, this rule provides the machinery for overcoming the difficulties of bringing proceedings where the person against whom the action would be brought has died without a grant of probate or administration being made to his estate or where an action has been brought against a person who is already dead.  The present case does not come under either of these 2 situations.  The learned editors go on to state that “[t]he rule should of course be distinguished from O.15, r.7 which deals with the change of parties by reason of death in an action already brought”.  It would appear that the more appropriate route to be followed in the present case is Order 15, rule 7 of the Rules of the High Court.

16.  Second, where an order to carry on proceedings is made under Order 15, rule 6A in a case where no grant of probate or administration has been made, the order should be for the appointment of a person to represent the estate of the deceased for the purpose of the proceedings and that the proceedings be carried on against the person so appointed (see Hong Kong Civil Procedure 2023, Vol 1, paragraph 15/6A/6). The 1^st Plaintiff has not, however, identified any person to be appointed to represent the estate of the Defendant in the Summons.  The relief sought in paragraph 1 of the Summons that the “personal representative” of the Defendant be appointed to represent the estate of the Defendant is meaningless when no personal representative of the Defendant has yet been appointed.

17.  It may be that the Defendant’s son (陳震宇), who has apparently indicated to Messrs Chan & Chan that he wished to be the personal representative of the Defendant, would be an appropriate person to represent the estate of the Defendant for the purpose of the Appeal.  However, the 1^st Plaintiff has not ascertained whether he is willing to represent the estate of the Defendant in the Appeal (see Hong Kong Civil Procedure 2023, Vol 1, paragraph 15/6A/5: “If there is no grant of probate or administration, the applicant should state, if practicable, the name and address of a person willing to be appointed to represent the estate in the proceedings.  If the plaintiff is in any difficulty in obtaining the consent of any person so to act, he should apply for assistance to the Official Solicitor who in a proper case will readily consent to be appointed as the person to represent the estate in the action.”).  The 1^st Plaintiff ought to have taken steps to ascertain the position of 陳震宇 before making the present application.

18.  Third, the 1^st Plaintiff askes for an order that the service of all documents in these proceedings (ie the Appeal) may be effected on Messrs Chan & Chan.  However, as mentioned in their letter to the Clerk to B Chu J dated 31 October 2022 in relation to HCMP 106/2022, upon the death of the Defendant, her retainer with the firm was determined, and Messrs Chan and Chan no longer represented her.  They also do not represent the estate of the Defendant.  There is no purpose in serving any documents on Messrs Chan & Chan.  The Order of Deputy High Court Judge Paul Lam, SC dated 20 September 2021 has no application to the service of documents in the Appeal proceedings, because it only relates to the service of documents in the proceedings below (ie HCMP 1148/2021).

19.  For the above reasons, the Summons is dismissed.  I shall now hear Mr Chu on the issue of costs and how he intends to proceed with the hearing of the Appeal scheduled for 31 January 2023.

[The Court heard further submissions from Mr Chu.]

20.  Mr Chu asks for the costs of the application to be borne by the estate of the Defendant on the ground that the application has been necessitated by her death.  There is, in my view, no basis whatsoever for any such order to be made.  The 1^st Plaintiff’s application is ill conceived.  I order the 1^st Plaintiff to bear the costs of this application personally, regardless of the outcome of the Appeal.

21.  Mr Chu further asks for an adjournment of the hearing of the Appeal in order that his solicitors can take the necessary steps for the appointment of an appropriate person to represent the estate of the Defendant.  There seems no other alternative reasonably open in the current circumstances.  Accordingly, the hearing of the Appeal fixed for 31 January 2023 is vacated.  The 1^st Plaintiff shall have leave to fix a new date for the hearing of the Appeal after an appropriate person has been appointed to represent the estate of the Defendant in the Appeal.

[1] Mr Yip passed away in 1992.

[2] Yip Kim Fan William passed away in 2011 with a will appointing the 2^nd Plaintiff as the executrix of his estate.

[3] Wong Fuk passed away in the Mainland in 1999.