Chan Wai Ming v. Xie Weiqin and Others
Read the full judgment text of HCAP 8/2016 on BabelCite. This High Court CFI judgment was delivered on 27 October 2017.
1. The plaintiff (“P”) by summons dated 6 July 2017 applies for the following:
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HCAP 8/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO.8 OF 2016 _________________________
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_________________________ Before: Mr Registrar K. W. Lung in Chambers Dates of Hearing: 27 October 2017 Date of Decision: 27 October 2017 ___________ DECISION ___________ THE APPLICATIONS 1.The plaintiff (“P”) by summons dated 6 July 2017 applies for the following:
2.The parties are legally represented.[1] 3.Master S.Lo has also adjourned the costs of the “Unless Order” made by consent of the parties dated 14 September 2017 to this Court for determination. COSTS ON THE UNLESS ORDER 4.D1 submits that P should pay the costs of and incidental to the Unless Order Summons which were unnecessarily caused to be incurred by the Plaintiff. Alternatively, the costs of and incidental to the Unless Order Summons should be in the cause. 5.This costs issue can be disposed easily without much debate. The Unless Order was made by consent of D1, it lies bad in D1’s mouth to say that such Order was unnecessary. D1 accepts that she did not comply with the Unless Order. She has not given good reason why she should not comply with the Order. As such, she is in default of the Unless Order and should be liable for her own default. She should bear the costs, in my view, on an indemnity basis. So I order. DISCUSSION Release Application 6.This is a dispute over the validity of the Deceased’s Will in that it was not executed by the Deceased.[2] 7.D1’s stance is that:
8.D1 has now changed the focus of P’s first request in the summons to whether there should be a single joint expert to report on the authenticity of the signature of the Deceased. I shall take it that she has no objection to P’s request for the original Will to be inspected by the expert on handwriting. P’s request becomes uncontested. 9.This morning, D1 submits that this issue of forged Will is not pleaded in the pleadings. However, paragraph 39 of the Statement of Claim has already pleaded that the Deceased did not execute the Will. The burden is therefore on P to prove the case. P is now asking for disclosure of the documents in order to prove the case. The signature on the Will must be relevant. 10.The next question is whether a single joint expert should be appointed, as proposed by D1. P’s position is not clear from the written submissions. 11.In the circumstances, this Court will grant an order in terms of P’s summons for the original Will to be inspected by the expert on handwriting in accordance with section 73 of the Probate and Administration Ordinance, Cap.10:
12.The above Order is also subject to the statutory requirements under Order 76, rule 5 RHC. 13.The original Will is only to be inspected. It should not be taken outside the Probate Registry. The inspection of the original Will has to be done in accordance with the directions of the Probate Registry or the Probate Master by the handwriting expert. So I order. I shall summarily assess the costs at the end of this hearing myself. Single joint expert 14.As to whether there should be a single joint expert, D1 has submitted that she agrees there should be one in order to save costs and time. However, P is telling this Court that the present application is for P to obtain expert advice as to the authenticity of the signature on the Will. Before the expert’s finding, P cannot plead forgery in the pleadings. It can be seen that the Will and the documents asked for are not for expert evidence at this stage because no expert directions have been given for the trial. As such, the issue of single joint expert, which is for the expert evidence for the trial, simply does not arise. Discovery 15.As to the application for discovery of the documents set out in the schedule attached to the summons, D1’s objections are:
16.D1 relies upon the case of Kwok Suk Yin. In this case, the plaintiff applied for inspection of the original Will from the Probate Registry and discovery of documents from the defendant. The first request was not in dispute. As to discovery, there is no idea from the Judgment as to what documents the plaintiff was discovering from the defendant. Suffice it to say, the learned judge said that the plaintiff agreed that those documents could be useful after forgery could be pleaded after expert evidence on the authenticity of the Will. If forgery could be pleaded, he could not see how discovery for those documents could be resisted. On this basis, he did not dismiss the plaintiff’s application for discovery, but ordered it to remain on the file, to be dealt with at a later stage. 17.Clearly, in that case, the documents were not necessary for the expert report. They can be deferred to a later stage. 18.For the present case, P is obviously asking for 26 documents, apart from the first one, which is a medical note, all of which are title deeds registered at the Land Registry, for the purpose of providing more samples for the handwriting expert. These title deeds are easy to be retrieved by D1 if they are available. It will not incur extra costs for retrieval of the documents. 19.I do not agree that the case management of this case should follow that of Kwok Suk Yin. The reason is simple: they are of different fact. 20.For the reasons above, I reject D1’s opposition that they are premature. I also reject D1’s argument that they are too wide because all of them are title deeds which are easily available, providing more samples for the handwriting expert. Since D1 agrees that there should be expert evidence, herself nominating a single joint expert, it will be of mutual benefit to P and D1 that their expert(s) should be provided with sufficient samples to compile the expert report. 21.I accede to P’s request on discovery as well. COSTS AND ORDER 22.As to the costs of this application, including the costs reserved and today’s hearing, the parties agree that D1 shall pay a sum of $200,000 to P for all the costs of the Unless Order and this application (with counsel’s certificate), including all costs reserved and today’s hearing to be paid within 14 days from the date hereof. The costs of P shall be taxed in accordance with the Legal Aid Regulations. 23.I shall now make an order in terms as follows:
Mr Eugene Yim, instructed by Messrs Li & Partners, assigned by Director of Legal Aid, for the Plaintiff Mr Anson Wong Yu Yat, instructed by Messrs Chan & Chan, for the 1st Defendant | ||||||||||||||||||||||||||||
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