Chow Lily v. Chow Wai Wai Violet and Others

CAMP 202/2021

[2022] HKCA 1101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 202 OF 2021

(ON AN INTENDED APPEAL FROM HCAP NO 22 OF 2019)

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BETWEEN

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Before:  Hon Kwan VP, Yuen and G Lam JJA in Court

Dates of Written Submissions:  10 June 2022, 14 June 2022 and 28 June 2022

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RENUNCIATION ISSUE
JUDGMENT ON COSTS

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

1.1.On 16 May 2022, this court gave Judgment on the Renunciation Issue (“the Issue”)[1]. For the reasons set out in that Judgment, it was held that the plaintiff’s position pleaded in §20B of the Re-Re-Amended Statement of Claim should not be regarded in law as a renunciation of executorship.

1.2.Two matters of costs arose from that judgment.

Costs Order nisi

2.1.First, an order nisi was made in the judgment that the defendants pay the plaintiff’s costs of the Issue.  Pursuant to Order 42 Rule 5B(6)  Rules of the High Court, the order would become absolute 14 days after the judgment unless an application is made to vary that order.

2.2.On 26 May 2022, the defendants filed a summons (with an amendment sought by summons filed on 9 June 2022, for which we give leave)  to vary the order nisi to an order that the parties’ costs of the Issue be:

-  reserved, or alternatively,

-  in the cause of the plaintiff’s application to this court for leave to appeal the Decision of DHCJ Leung (“the judge”)  given on 30 July 2020[2] or, if such leave is granted, the intended appeal.

Summary Assessment of costs for the Renunciation Issue

3.1.Second, in the judgment, we noted that although the parties had provided statements of costs for summary assessment, they were not expressed to relate to the discrete Issue.  Accordingly we directed that the plaintiff be at liberty to file and serve a statement of costs relating to only that Issue within 14 days. 

3.2.On 26 May 2022, the plaintiff filed a statement of costs for summary assessment (exclusively on the Issue).  On 9 June 2022, the defendants filed a list of objections to that statement.

4.It would be convenient to deal with the application to vary the costs order nisi first.

4.1.On behalf of the defendants, it was submitted that:

-  the plaintiff’s application for leave to appeal the APL Decision has not yet been determined, and if that application were to fail, it would not be fair for the defendants to have to pay part of the costs incurred in the course of that application;

-  the defendants had not pursued the Issue in order to challenge the plaintiff’s application, as she had not relied on her appointment as executor and had expressed her intention that she would not accept it pending the probate action;

-  the plaintiff’s appointment as executor does not per se dispose of the application for leave to appeal the APL Decision.

4.2.On behalf of the plaintiff, it was submitted that:

-  the Issue was a stand-alone and isolated issue which had arisen when the Mother and Lina renounced executorship, after the hearing of the APL application before the judge;

-  when that Issue arose, the defendants actively advanced the argument that the plaintiff had renounced executorship either expressly or impliedly, instead of adopting a neutral stand.

Discussion

5.The Issue arose when:

-  the Mother and Lina renounced executorship, and under the 2005 Will, the plaintiff became the substitute executor, events which were beyond the control of both the plaintiff and the defendants; and

-  the court considered that the identity of the executors and their working relationship with one another would be relevant to the application for leave to appeal the APL Decision, as their ability to co-operate in the administration of the estate would be affected.  The fact that the plaintiff had pleaded that she did not intend to accept the appointment pending the probate action is neither here nor there, as such a statement of intention is not binding.  It is clearly relevant to the court which has to deal with the application to know who are the current executors, and in their submissions on the Issue, neither party suggested otherwise.

6.1.We do not accept the defendants’ submission that “but for”[3] the plaintiff’s application for leave to appeal the APL Decision, the Issue would not have arisen and so the costs of the Issue should be considered only at the conclusion of the application or as part of the costs in the cause.

6.2.However, we note that the Issue arose out of events caused by third parties (i.e. the renunciations of the Mother and Lina), and the Issue having been raised by the court, it cannot be said that the defendants had acted unreasonably or improperly in advancing the submissions which they did, even though they turned out to be unsuccessful.

6.3.Accordingly, we would vary the costs order nisi as follows:

“The costs of the Renunciation Issue be the plaintiff’s costs in the cause of the application for leave to appeal”.

7.As for the statement of costs on the discrete Issue, having considered the bill and the list of objections, we agree with the objections and would summarily assess the costs at $510,000.  We make no separate order for the costs of the application to vary the costs order nisi because at a physical hearing, arguments on costs would be treated as part of the costs of the substantive hearing.

Written Submissions by Mr Edward Chan SC and Mr Abel Lam, instructed by Lily Fenn & Partners, for the Plaintiff

Written Submissions by Mr Benjamin Yu SC, Ms Teresa Wu and Ms Jacqueline Law, instructed by P C Woo & Co, for the 1^st & 2^nd Defendants

CHOW LINA deleted as 3^rd Defendant after 29 June 2021