Chen Yue Jia James v. Chen Maria

HCA 1284/2013
& HCAP 15/2013
(Consolidated)

[2022] HKCFI 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1284 OF 2013

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 15 OF 2013

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BETWEEN

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DECISION ON COSTS

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1.This is the Plaintiff’s application to vary the costs order nisi at §364 of the Judgment handed down on 15 September 2020 (“the Judgment”)  on the following reasons:

(i)  to clarify that the costs of the Plaintiff are to be paid by the Defendant and not out of the deceased’s estate; and

(ii)  to seek costs to be awarded on indemnity basis, or alternatively on common fund basis.

2.The background of this case and the reasons for me in ruling the case in the Plaintiff’s favour have been fully set out in the Judgment and I do not want to repeat the same here.  For easy reference, I would adopt the same abbreviations that I used in the Judgment.

3.Maria (the Defendant)  concedes the liability for costs and so the only question left is whether the costs of James (the Plaintiff)  should be taxed on a higher basis.

4.Mr Ho, SC, counsel for James but not appearing for him at the trial, relies on the following grounds in support of James’ request for indemnity costs:

(i)  Maria’s conduct and circumstances leading to the litigation;

(ii)  the attributes of Maria and the character of the proceedings;

(iii)  serious but groundless allegations and persistence in a hopeless defence; and

(iv)  ulterior motive for resisting this action amounting to abuse of process of the court.

5.In terms of Maria’s attributes and conduct in general, Mr Ho reminds me of what I said in §§174, 175, 178, 180, 181, 183, 194, 187, 188 and 196 of the Judgment.  Maria was found to have been trying to exert control over the person and finance of Madam Wong.  All these finally ended up in the abduction of Madam Wong to the United States, and as a result she died in a foreign country without her close friends and relatives.  Mr Ho also reminds me of the comment I made that Maria’ conduct “was nothing but pure cruelty on Madam Wong for her own selfish agenda and purposes”.

6.Mr Ho also refers me to my dicta in §262, 263, 268, 276, 279, 284 and 285 of the Judgment with a view to demonstrate that Maria had a hopeless case unsubstantiated with evidence.  Her allegation of undue influence was pure speculation and her challenge on Madam Wong’s testamentary capacity was fraught with inconsistencies.

7.Finally, Mr Ho submits that Maria had an ulterior motive in resisting this action.  She was making use of this action as a springboard for challenging the HSBC Trust or other dispositions Madam Wong made in around 1999.  She was not genuinely interested about whether the Wills would be properly propounded in solemn form or the limited value of the estate. 

8.Despite the able submissions of Mr Ho, I do not find that the facts of the present case justify a higher basis for the payment of costs.  I do not find that Maria’s act of challenging the Wills is “out of the norm”, or that her conduct of the case is so unreasonable that warrants an indemnity costs order.

9.I agree with Mr Chain, counsel for Maria, that it may not be appropriate for the court to consider this matter with the benefit of hindsight.  Though Maria may be a money-oriented person who was eyeing on the estate of Madam Wong, she had no knowledge of any of the Wills. There was some basis for challenging the Wills, in particular the 1999, 2001 and 2004 Wills, given: (i)  the age of Madam Wong in executing these wills; (ii)  the non-observance of the golden rule in the execution of such wills; and (iii)  the various incidents from about 1999 to 2001 showing that Madam Wong was giving conflicting instructions to the banks and financial institutions relating to the management of her assets.  It was only after the consideration of all the evidence that the court declared that the first 4 wills are valid.  The present case is no different from other hostile litigations that the courts reject the evidence or the case of the losing party.

10.One can perhaps say that James might have a strong case on the 1992 Will.  Nevertheless, there were a few matters that deserved the investigation by the court, for examples: (i)  the circumstances for the sale of the La Salle Property which took place a few days before the execution of the 1992 Will; and (ii)  the relationship between the 1987 Deed of Confirmation and Trust and the 1992 Will.  There were also some matters relating to the execution of the 1992 Will which required clarification, in particular the ability of Madam Wong in understanding the contents of the will when both Cantonese and English were not Madam Wong’s native language and the 1992 Will was executed before Anita Ho rather than Anna Wu who was the handling solicitor.  Further, as James and his father were instrumental in the preparation of the Wills and they made a conscious decision not to let Maria to know about the Wills, I agree with Mr Chain that Maria’s conduct in challenging the Wills cannot be regarded as unreasonable or “out of the norm”.

11.The court had made serious criticisms about the character of Maria and how she handled the welfare matters of Madam Wong (in particular the abduction of Madam Wong to the United States).  I stand by these criticisms.  Yet, the court cannot make an indemnity costs order against a particular party simply because they are selfish who want to obtain a share in the estate of their family member.  After all, all the parties fighting for a share in the deceased’s estate in probate cases are motivated by money, and the present case is no different from other similar probate cases which are seriously contested on both sides.

12.For the allegation of ulterior motive, the court knows very little about the details of the dispute between the parties relating to the HSBC Trust.  At the trial, both parties (in particular James)  tried to avoid mentioning anything relating to the HSBC Trust, apparently because the dispute relating to such trust was not relevant to the issues at the trial.

13.Mr Chain accepts that Maria in fact wanted to challenge the HSBC Trust.  However, based on the limited knowledge of the court, I agree with Mr Chain that the HSBC Trust was really part and parcel of the same disputes surrounding the 1999 Will.  The evidence in the present case does not support that Maria contested the probate action with the main objective of challenging the HSBC Trust or obtaining evidence for the purpose of other related proceedings.  The court must have more details before making such serious finding of abuse of process against Maria.

14.For these reasons, I vary the costs order nisi by specifically ordering Maria to pay for the costs of James in this action which are to be taxed on a party-and-party basis.

15.Though Maria has successfully resisted the application for indemnity costs, James still obtains the order that his costs shall be paid by Maria and not the estate.  I agree that the parties have mainly focused on the indemnity costs issue in the submissions.  Yet taking into account the criticisms that the court had made about Maria’s character and her handling of the welfare matters of Madam Wong, there are indeed some justifications for making the indemnity costs application.  In the end, I consider it fair to make a no-order-as-to-costs order for this costs variation application.  I therefore so order.

Mr Ambrose Ho, SC and Ms Joyce Leung, instructed by Haldanes, for the Plaintiff in both actions

Mr Benjamin Chain and Ms Astina Au, instructed by Y S Lau & Partners, for the Defendant in both actions