Lily Cheung v. The Official Solicitor and Another
Read the full judgment text of CACV 2/2009 on BabelCite. This Court of Appeal judgment was delivered on 9 October 2020 before Hon Lam VP and Chu JA.
Civil procedure – appeal – representation order – locus standi – estate – probate action – costs – The Plaintiff appealed against an order appointing her as representative of the deceased's estate. The Court of Appeal had adjourned the appeal pending the final determination of a probate action. The probate action was finally determined, with the 2nd Defendant declared the lawful adopted daughter of the deceased and the Plaintiff having no interest in the estate. The Court of Appeal held that the Plaintiff lacked locus standi to represent the estate, set aside the representation order, struck out the originating summons, and ordered the Plaintiff to pay the 2nd Defendant's costs of the appeal and below, except for the costs of a specific hearing where each party bore their own costs.
Legal issues: Utility of appeal after final determination of probate action
Outcome: Appeal allowed; representation order set aside; originating summons struck out.
Cited by 5 cases · Cites 3 cases
|
CACV 2/2009 [2020] HKCA 805 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 2 OF 2009 (ON APPEAL FROM HCMP 635/2006) ________________________
________________________ BETWEEN
________________________
________________________ J U D G M E N T ________________________ Hon Lam VP (giving the Judgment of the Court): 1.The Court gave the following directions (“the Directions”) on 10 August 2020:
2.On 13 August 2020, solicitors for the 2nd Defendant indicated that the 2nd Defendant agreed to have the appeal processed on the papers. She also lodged her written submissions on 28 August 2020. 3.The Plaintiff did not lodge any representation against paper disposal of the appeal. Nor did she lodge any submissions in the appeal. Pursuant to paragraph (6) of the Directions, it is deemed that she agreed to paper disposal and she had no submission to make in the appeal. 4.Having regard to the above, we are of the view that the appeal shall be processed on the papers and the hearing date of 16 October 2020 is vacated. 5.We shall not repeat the facts of this appeal which had been adequately set out in the judgment of 26 June 2009. The judgment in CACV 154/2015 and 156/2015 [2018] HKCA 9 in the probate action is also relevant. 6.In adjourning this appeal on 26 June 2009, the Court of Appeal took the view that the probate action was the key to the resolution of the underlying disputes. At [65] to [68], the Court of Appeal explained the likely positions depending on the outcome in the probate action. 7.As mentioned in the Directions, the probate action has now been finally determined. The order of Deputy High Court Judge Simon Leung was upheld and the two appeals against his order in CACV 154/2015 and CACV 156/2015 were dismissed. There is no further appeal. For present purposes, the net position is that the 2nd Defendant was declared by the court to be the lawful adopted daughter of Madam Luk Kim Ying (“the Deceased”) and the Plaintiff has no interest in the estate of the Deceased. 8.It follows that the Plaintiff cannot have any locus standi to represent the estate of the Deceased. 9.In light of such conclusion (which is final and binding on the Plaintiff and the 2nd Defendant as they were parties to the probate action and the two appeals), and acting in accordance with the purpose for adjourning this appeal in 2009 as espoused by the Court of Appeal in the judgment of 26 June 2009, the order of Poon J (as he then was) in appointing the Plaintiff to represent of the estate of the Deceased must be set aside. 10.Indeed, as the Plaintiff had no interest in the estate, it is plain and obvious that the Originating Summons issued at her instigation should be struck out. 11.In her written submissions, the 2nd Defendant sought an order that she be appointed as the administratrix of the estate of the Deceased. This is not a relief that can be granted in this appeal. The application for grant of Letters of Administration should be processed by the Probate Registry in the usual manner. As noted by the Court of Appeal at [46.1] in the judgment in CACV 154/2015 and 156/2015 [2018] HKCA 9, there is another potential claimant to the right of representation, viz the brother of the 2nd Defendant. 12.On the question of costs, we shall give costs of the appeal to the 2nd Defendant except the costs of the hearing on 9 June 2009. 13.According to the judgment of 26 June 2009, the principal issue at that stage was the jurisdiction point (the other issues relied on by the then counsel for the 2nd Defendant were unlikely to succeed: see [72] of that judgment) and the Court of Appeal was not very impressed by the argument on jurisdiction (see [59] of the judgment). Moreover, the Court of Appeal quite rightly doubted the utility of the appeal given the stay already in place. 14.We would order each party to bear her own costs for the hearing on 9 June 2009. 15.As regards the costs below, we would set aside the order for costs made by Poon J. Instead, we would order the Plaintiff to pay the costs of the 2nd Defendant in the Court of First Instance since she ought not have brought the proceedings as she had no interest in the estate. 16.The order we make is as follows:
The Plaintiff acting in person (since 15 August 2019) The 2nd Defendant acting in person (since 14 August 2020) |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under CACV 2/2009