Lyyc v. Chl and Csms, The Executrices of the Estate of Cgsk also known as Cskg, Deceased

FCMP 223 / 2017

[2019] HKFC 39

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 223 OF 2017

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RULING
(Leave to Appeal, stay of execution and costs)

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Introduction

1.This is an application for leave to appeal against the “striking out” judgment dated the 8 January 2019, when I refused to accede to the Respondents’ request that the Applicant’s originating Summons dated the 1 November 2017 be struck out. The Respondents also ask for a stay of proceedings pending appeal. It is of note that this matter concerns litigation within the Inheritance (Provisions for Family and Dependents) Ordinance, Cap 481 and relates to an application made by a woman who maintains that she had an intimate relationship with the deceased and was maintained by him.

Leave to Appeal

The law  

2.The appropriate test when seeking leave to appeal is set out in statute and can be found at s 63A District Court Ordinance, Cap 336. This states that either the appeal must have a reasonable chance of success or that there is some other reason in the interests of justice why the appeal should be heard.

3.It follows that generally speaking the Court of Appeal is unlikely to interfere with the exercise of a judge’s discretion unless it can be shown that she (or he as the case may be) has clearly exercised her discretion incorrectly i.e. that it was exercised according to a mistake of law, or she had misunderstood the facts, or she had taken into account something that was irrelevant or “the exercise of the discretion was ‘outside the generous ambit within which a reasonable disagreement is possible’.

Stay of execution pending appeal

The law

4.The principles applicable to a stay of execution can be found in Star Play Development Limited v Bess fashion Management Co Limited [2007] 5 HKC 84. Reference can be made to that case as necessary, but in essence the concern generally is that without a stay any successful appeal might be rendered nugatory.    

The Grounds of Appeal

5.Both parties have basically repeated their submissions made at first instance. In so far as the Respondents are concerned they conclude in their Draft Grounds of Appeal as follows:

12.  Further, at §10 of the Judgment, the Judge erred in failing to consider any of the legal arguments submitted by the parties as to the proper construction of s.3(1)(ix) of the Ordinance, which is a question of law that would not necessitate a full trial.

13.   In the premises, if the Judge had properly analysed all the undisputed/undisputable evidence before the Court and applied the same to the applicable legal principles, she ought to have held that the Applicant plainly and obviously does not have any arguable claim under the Ordinance that has any prospect of success, and she has not provided any or any sufficient evidence even get past the 1^st stage of the two-stage test referred to at §8 of the Judgment (see Re Coventry  (Deceased) [1980] 1 Ch 461; LZX v WYL (provision: family and dependants) [2012] 5 HKLRD 29; Re Estate of Lam Kam Wai [2014] 3 HKC 511).  On such basis, the Judge ought to have held that the Applicant’s claims under the Ordinance are liable to be struck out on the grounds stated in the Summons.

This is reiterated in counsels’ submission when they say that

11.   Further, at §10 of the Judgment, this Court has not considered any of the legal arguments submitted by the parties as to the proper construction of s. 3(1)(ix) of the Ordinance, which is a pure question of law that would not necessitate a full trial.

12.   In the premises, it is at least arguable that if this Court had properly analysed the undisputed/undisputable evidence against the applicable legal principles submitted by the parties, it should have concluded that the Applicant plainly and obviously does not have any claim under the Ordinance and thus cannot get past the 1st stage of the two-stage test referred to at §8 of the Judgment.

13.   Hence, it is respectfully submitted that P has a reasonable chance of success in the intended appeal against the Order and leave to appeal ought to be granted.

14.   Alternatively, there is “some other reason in the interests of justice” given that the Judgment has not provided any or any sufficient reasons as to why the extensive submissions made by Rs in its Skeleton dated 14.9.2018 (in support of the Striking Out Summons) and supplemented orally by Senior Counsel at hearing on 19.9.2018 were not accepted.  Further, insofar as there may be any ambiguity in the construction of s.3(1)(ix) of the Ordinance, it will be in the interests of justice for the Court of Appeal provide its guidance for future cases.

Discussion    

6.It is true that the court took a broad brush approach in this judgment. It seemed to me that it was clear that there were both significant factual disputes to be determined and that in addition the meaning and definition of the law was not agreed. In such circumstances it did not seem appropriate, or indeed possible for the Applicant’s originating summons to be struck out. In such circumstance I took the view that it was not necessary to go through the legal arguments advanced by counsel for the Respondents as prima facie there was a case to be answered that could only be dealt with at trial. If I am wrong in this, then it is for the Respondents to convince the Court of Appeal of the same. In so far as this current application is concerned it follows that the Respondents’ summons dated the 18 January 2019 shall be dismissed. Costs shall follow the event in the normal way. Consequently, the Respondents shall pay the Applicant the costs of this application on a party and party basis to be taxed if not agreed, with certificate for both counsel.    

Mr Richard Todd and Mr Jeremy S.K. Chan instructed by Withers for the Applicant

Mr Russell Coleman SC and Ms Sara Tong instructed by MinterEllison LLP for the Respondents