Lam Man Cheung v. Lam Man Yin and Another

HCMP 375/2021 and HCMP 739/2021
(Heard together)

[2022] HKCFI 1201

HCMP 375/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 375 OF 2021

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BETWEEN

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HCMP 739/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 739 OF 2021

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________________________

BETWEEN

(Heard together)

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DECISION ON COSTS

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1.The follows concern the costs order nisi (“Cost Order Nisi”)  I made at §61 of the Judgment I handed down on 28 March 2022.

MC Lam and Jiao’s application to vary

2.By letter of 11 April 2022, Messrs CL & Co for MC Lam and Jiao seek a variation of the part of the Costs Order Nisi at §61(a)  of the Judgment, to the extent that MC Lam should only be ordered to bear 50% of the costs of OS/375, on the basis that certain paragraphs in MY Lam’s affirmation filed on 20 May 2021 are irrelevant to the issues in dispute.

3.I agree that part of MY Lam’s affirmation are not relevant to the issues in dispute.  That problem in fact is not confined to MY Lam’s affirmation.  I refer to §15 of my Judgment.

4.However, to reduce MC Lam’s costs liability under OS/375 by 50% as a result is excessive, and is disproportionate.

5.I will disallow 30% of the costs incurred for the purpose of preparing MY Lam’s affirmation concerned.

MY Lam and MP Lam’s application to vary

6.By letter of 7 April 2022, MY Lam and MP Lam seek an order that the Costs Order Nisi be varied as underlined below:

(a)  MC Lam shall bear the costs of OS/375 which, for the avoidance of doubt, are not to be paid out of the Estate, and the Executors’ own costs of OS/375 on a trustee basis be paid out of the Estate, with certificate for counsel; and

(b)  the Executors (and MY Lam in her personal capacity)  shall have the costs of OS/739 which shall be borne by MC Lam and Jiao (which, for the avoidance of doubt, are not to be paid out of the Estate), and the Executors’ own costs of OS/739 on a trustee basis be paid out of the Estate, with certificate for counsel.

7.MC Lam does not oppose the proposed variation.

8.MC Lam on the other hand suggests that the Executors’ own costs should be paid out of the residue of the Estate.

9.MY Lam and MP Lam do not agree.  They say that those costs were incurred on parties’ dispute over the Property, and have nothing to do with the residue of the Estate or any 遺產承辦費用.

10.I agree.

11.Further, under Clause 5 of the Will, MY Lam is devised the residuary estate.  If the costs were to be paid out of the residue, they would in effect be borne by MY Lam, which should not be the case.

12.I refuse MC Lam’s suggestions.

The result

13.I make the following costs order:

(a)  MC Lam shall bear the costs of OS/375 (save 30% of the costs incurred for the purpose of preparing MY Lam’s affirmation filed on 20 May 2021)  which, for the avoidance of doubt, are not to be paid out of the Estate, and the Executors’ own costs of OS/375 on a trustee basis be paid out of the Estate, with certificate for counsel; and

(b)  the Executors (and MY Lam in her personal capacity)  shall have the costs of OS/739 which shall be borne by MC Lam and Jiao (which, for the avoidance of doubt, are not to be paid out of the Estate), and the Executors’ own costs of OS/739 on a trustee basis be paid out of the Estate, with certificate for counsel.

14.I make no further costs order in respect of these applications.

Written Submissions by CL & Co Solicitors, for the Plaintiff in HCMP 375/2021 and 1^st and 2^nd Defendants in HCMP 739/2021 

Written Submissions by Patrick Mak & Tse, for the Defendants in HCMP 375/2021 and the 1^st and 2^nd Plaintiffs in HCMP 739/2021