Chow Lily v. Chow Wai Wai Violet and Another

CAMP 202/2021

[2023] HKCA 1117

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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J U D G M E N T

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

1.On 8 February 2023, we gave Judgment (“the Judgment”)[1] after a “rolled-up” hearing of the plaintiff’s application for leave to appeal the Decision of DHCJ Leung (“the Judge”)  given on 30 July 2020 (“the APL Decision”)  dismissing her application for the appointment of administrators pendente lite in the probate action concerning the estate of Chow Yei Ching (“the Deceased”).

Background

2.1.The background of the case and the reasons for our decision have been set out in the Judgment and we will not repeat them here. We gave the plaintiff leave to appeal[2]. However, we dismissed the appeal upon an undertaking given by Oscar Chow (“the Undertaking”)  [Judgment §34] that:

(1)  he would agree to the plaintiff being appointed as a member of the Investment Committee[3] with immediate effect subject to her consent, and shall procure PCH[4] to take all necessary administrative steps as required to give effect to the proposed appointment; and

(2)  he shall procure PCH to give reasonable notice to the Deceased’s widow and the Chow siblings (including the plaintiff)  in advance of any investment or disposal of the funds in the PIP exceeding $1 million or such other sum to be agreed.

2.2.With the plaintiff being a member of the Investment Committee and with such prior information being given to her, we were satisfied that any concerns of any dissipation of the PIP in the run-up to the Probate Action would be adequately addressed [Judgment §36].

3.In our Judgment, we made a costs order nisi, holding [Judgment §38.2]:

“As far as costs are concerned, the appeal has failed on the new ground and the other grounds regarding Hidden Shares and TLL. As far as the PIP is concerned, we are mindful that a new undertaking has been provided. Accordingly, we would make a costs order nisi that the appellant [the plaintiff] is to pay the respondents [the current executrices] 50% of their costs of the appeal including costs for the application for leave, with certificate for two counsel”.

4.1.On 22 February 2023, the plaintiff applied by summons to vary the costs order nisi to one where she would have 50% of the costs of the appeal (including 50% of her costs for the application for leave)  with certificate for two counsel, or alternatively, there be no order as to the costs of the appeal including costs for the application for leave.

4.2.This was opposed by the defendants and directions were given for the summons to be disposed of on paper.

Discussion

5.The parties have filed written submissions, which we have considered.

6.1.We see no ground to vary the costs order nisi.  It is well-established that the award of costs is in the court’s discretion taking into account all the circumstances.

6.2.In the present case, apart from the other grounds of appeal which were dismissed, the appeal was concerned with two matters:

(1)  whether it was arguable that (contrary to the defendants’ position), the PIP belonged to the Deceased’s estate; and

(2)  if yes, whether there was a risk of dissipation of the assets therein to justify the appointment of administrators pendente lite of the estate.

6.3.In respect of (1), we noted that the plaintiff only referred to the PIP for the first time in her 6^th affirmation[5], at the eleventh hour before the CFI hearing.  This was despite the fact that she was well aware of its existence for at least 2 years[6] before then, and was actually a member of the Investment Committee at the time of that affirmation.  In other words, for more than a year after the Deceased’s death (in July 2018), she was content to treat the PIP as not being part of the Deceased’s estate, which stand was identical to that of the defendants. 

6.4.In respect of (2), it followed that for the period of more than a year, the plaintiff raised no allegation that there would be a risk of dissipation of the assets in the PIP to justify the appointment of administrators pendente lite of the estate.  We note further that there was no evidence that anyone has paid out any PIP assets of which the plaintiff was not given notice or for an improper purpose.  Therefore, it cannot be said that but for the Undertaking, she would have succeeded in her appeal.

7.Having said that, we noted that the plaintiff had been a member of the Investment Committee and would thus have been involved in the discussion of investments and would have received portfolio reports monthly. However, when the matter came before this court, she was no longer a member[7] (although we note that she has not said when and why she ceased to be a member, nor did she raise the cessation of her membership as a ground for the appointment of administrators pendent lite).  It was as a result of this new situation and to pre-empt any new allegations of impropriety and dissipation in the run-up to the trial that this court sought the Undertaking which was offered without demur. 

Order

8.For the reasons above, we would dismiss the summons for variation of the costs order nisi which order is now absolute.  The costs of the summons are to be treated as part of the costs of the appeal.  For the avoidance of doubt, since we have given leave to appeal, the plaintiff is entitled to the summarily assessed costs of $510,000 she incurred for the Renunciation Issue which was discrete from the issues in the “rolled-up” hearing of the application for leave to appeal and the appeal.  In other words, the plaintiff is entitled to the said $510,000 incurred for the Renunciation Issue, but she is to pay the defendants 50% of their costs of the “rolled-up” application for leave to appeal and the appeal, with certificate for two counsel.  

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

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