Li Cheong v. Lee Kwai Tai also known as Li Kwai Tai

CAMP 65/2018
CACV 346/2018

[2018] HKCA 719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 65 OF 2018 and

CIVIL APPEAL NO 346 OF 2018

(ON AN INTENDED APPEAL and APPEAL FROM PROBATE ACTION NO 32 OF 2012)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Background

1.On 26 July 2018, at a rolled-up hearing of which the parties were informed three weeks in advance, this court (Lam VP and Yuen JA) gave leave to the defendant LKT to appeal, and then allowed her appeal, against a decision of DHCJ Yee given on 5 March 2018.  The learned judge had granted the intended intervener DL an extension of time to apply to set aside a judgment given on 8 June 2016 in a probate action in which LKT was declared the only surviving issue, and granted letters of administration to the estate, of the deceased who had died in the UK in 1985.

2.The reasons for this court’s judgment have been set out in our Reasons for Judgment handed down on 8 August 2018 and I will not repeat them here. 

The application

3.On 22 August 2018, DL filed an application for leave to appeal to the Court of Final Appeal under the “otherwise” limb in s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap.484.  First, DL disputes the grounds for this court’s interference with the exercise of the judge’s exercise of discretion, and the consequent exercise of that discretion afresh by this court.  Secondly, it is suggested that under the rolled-up procedure, she was deprived of a fair opportunity to consider and deal with matters taken into account by this court.  Thirdly she complains that in the circumstances, she became “unintentionally bound” by the judgment of 8 June 2018. 

Discussion

4.In our Reasons for Judgment, this court has emphasized the in rem nature of a probate action.  Not only was DL aware of the existence of the probate action for at least 9 months, her solicitors were served with a notice of action under Order 15 rule 13A prior to the resumed hearing of trial.  Nevertheless she did not take any steps to join the probate action as a party.  The effect of the service of the notice of action and her failure to acknowledge service was that under Order 15 r.13A(4), the judgment in the probate action became binding on her.  The misapprehension of the judge that the judgment would only be binding on the immediate parties to the action does not invalidate the effect of the rules of court.  Nor should it have had any effect on his decision to make a declaration at the conclusion of the probate action.  And as expounded in the Reasons for Judgment, DL was also guilty of unjustifiable and substantial delay when she made an application for an extension of time to set aside the judgment in the probate action some 6 months after being aware of the judgment.  In these circumstances there is no arguable ground for an application to the CFA under the “otherwise” limb.  

5.As for the second ground, the order of the judge having been set aside, this court in exercising the discretion afresh was entitled to take all relevant matters into account.  The parties were informed more than 3 weeks in advance that the rolled-up procedure would be adopted and had adequate time to prepare for a substantive appeal. And in the event, DL’s counsel decided to abandon his proposed respondent’s notice.  There was nothing in the rolled up procedure that made it unfair to DL.

6.As for the third ground, a judgment is either binding on a person or it is not, depending on the law and rules of court.  DL’s “intention” to be bound, or not, is neither here nor there.

7.Finally, this court normally leaves it to the CFA to decide whether to grant leave under the “otherwise” limb.   We would decline to grant leave in the present case and the application is dismissed with costs to LKT.  Having considered her statement of costs for summary assessment, we take the view that a reasonable amount would be $178,520.

Mr Albert Yau and Mr Kevin Poon instructed by Hoosenally & Neo, for the defendant

Mr Simon Lam instructed by Kelvin Cheung & Co, for the intended intervener