Lls v. Dyj and Another

FCMP 221/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 221 OF 2013

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REASONS FOR DECISION
(Stay of Proceedings)

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1.For today’s hearing, I have to rule on the following 2 applications:

(1)   The Respondents’ summons dated 12 October 2015 asking for leave to obtain an appointment to hear the Originating Summons; and

(2)   The Applicant’s summons dated 25 November 2015 asking for a stay of the present proceedings pending the outcome of High Court Probate Action No. HCAP 21/2013.

2.As this is essentially a hearing on case management matters, I am going to give a short decision on the parties’ respective applications.

Brief Backgrounds

3.The Applicant claims to be the wife or tsip of the Deceased.

4.The 1st Respondent was a cohabitee of the Deceased.  

5.The 2^nd Respondent was a son of the Deceased from his first marriage with a Madam Ng.

6.The Deceased passed away on 15 September 2012 at the age of 86.   After his death, the Respondents propounded a will of the Deceased dated 8 November 2011 in which no financial provisions were given to the Applicant.

7.On 19 September 2013, the Applicant issued the present proceedings under the Inheritance (Provision for Family and Dependents) Ordinance, Cap. 481 asking for reasonable financial provisions from the estate of the Deceased.

8.On 17 October 2013, a High Court Probate Action (HCAP 21/2013) was issued by 2 children of the Applicant and the Deceased asking for:

(1)   A declaration that the Deceased did not have the testamentary capacity to execute the will dated 8 November 2011;

(2)   An order that the Probate granted on 22 March 2013 to be revoked; and

(3)   An order that those 2 children or such other fit and proper persons to be authorised to apply for a grant of Letters of Administration of the Deceased’s estate.

9.It is common ground that the High Court probate action is on-going and a Case Management Conference will be held in January 2016 in the Court of First Instance of the High Court. It is anticipated that the trial of the probate action can only be concluded sometime in the year of 2017.

10.As the Applicant has not obtained an appointment to hear her Originating Summons, the Respondents have therefore taken out the present application for such an appointment to hear the Originating Summons under O. 28 r.2 (3) of the RDC.

11.The Applicant objects to such application and at the same time issued her application for a stay of the present proceedings pending the outcome of High Court probate action.

My Views

12.I am not going to rehearse counsel’s submissions here but I am going to state my views as follows:

(1)   As the High Court probate action is a challenge to the validity of the will of the Deceased and the Probate subsequently obtained by the Respondents, and if successful, the Respondents will lose their capacity as the Executors of the estate. In that event, the Applicant may still have to continue with her claims under Cap.481, but that would be a claim against a totally new trustee or trustees representing the estate.  The whole foundation of the present defence may no longer be valid at that time. This is, in my view, a very strong ground in favour of staying the present proceedings pending the outcome of the High Court probate action.

(2)   One of the important issues of the present proceedings is the marital status of the Applicant.   She claims to be the wife or tsip of the Deceased, which is denied by the Respondents.   Such issue may also be relevant in the probate action because apart from seeking a revocation of the Probate, the Plaintiffs in that action also asked for new Administrators to be appointed. If the Applicant is really a wife or tsip of the Deceased, this may have an important bearing on the appointment of the new Administrators. Therefore, depending on the further development of the probate action, the likelihood of both the probate action and the present proceedings sharing an important common issue, namely, the marital status of the Applicant cannot be discounted.

(3)   According to the Applicant, she entered into a marriage with the Deceased in January 1950 in her home town of Dongguan, Mainland China. In paragraph 9 of her supporting affirmation (p.18, Hearing Bundle), she averred that either the Civil Code of the Republic of China or the Hong Kong law (applying Ching Law) should govern her marital status with the Deceased. These are very specialized areas of the law and expert evidence have to be called at trial. I am of the view that this is one of those cases that may be more suitably tried in the Court of First Instance of the High Court, instead of in the Family Court. Having said that, I have decided not to exercise my discretion to order a transfer at this stage as I think it is more prudent to wait for the result of the probate action first. Depending on the outcome of that action, the issue of transfer may have to be revisited after the parties have a final resolution of their disputes on the Deceased’s will.

(4)   As can be seen from the affirmations filed by the parties herein so far, it is apparent that there are going to be a lot of factual disputes that need to be resolved at trial.   If these proceedings are allowed to proceed, there is a very good chance that they have to be continued as if the cause had been begun by writ so that proper pleadings could be filed.    Therefore, I do not think it is a practical expectation that even without a stay, the proceedings could be concluded within a short period of time.

(5)   I fully appreciate the Respondents’ wish to have the case proceeded to a conclusion as soon as possible.  Generally speaking, and especially in the new CJR era, this should be the case and the court will not tolerate any undue delay in the proceedings.   However, as pointed out in the preceding sub-paragraphs, a swift conclusion of the present proceedings may in any event not be possible.   Furthermore, in view of the age disparity between the parties, even if the stay is going to cause any prejudice to the parties’ interests due to delay, those prejudices would certainly be more detrimental to the interest of the Applicant than that to the Respondents.  

Conclusion and Order

13.Based on the above reasons, it is my ruling that there should be a stay of proceedings pending the outcome of the High Court probate action.    Therefore, these are my orders:

(1)   All further proceedings in this action to be stayed and not to be restored after the conclusion of the High Court Probate Action No. HCAP 21/2013, or further order of the court; and

(2)   The Respondents’ summons dated 12 October 2015 to be dismissed.

Costs

14.Costs should normally follow the event.   However, in this particular case, the undeniable fact is that there has been quite a long period of inaction on the part of the Applicant and the Respondents’ request for a set down is therefore understandable. Under these circumstances, I think a fair order is for the costs to be in the cause, including all costs reserved with certificate for counsel. This will be in the form of an order nisi to be made absolute upon the expiry of 14 days from the handing down of this decision.

15.Lastly, I thank counsel for their able assistance.

Representation:

Ms Chantel Lin, Barrister-at-law, instructed by Messrs Eric Yu & Co., solicitors for the Applicant

Mr Lawrence Cheung, Barrister-at-law, instructed by Messrs LCP, solicitors for the Respondents