Chow Lily v. Chow Wai Wai Violet and Another

HCAP 22/2019

[2025] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

_________________

_______________

DECISION

________________

BACKGROUND

1.This probate action concerns the estate of Chow Yei Ching, deceased (“the Deceased”). 

2.The Deceased founded the Chevalier Group in Hong Kong in 1970, which has a wide range of businesses employing a total of 10,000 employees in various parts of the world.  The shares of Chevalier International Holdings Limited (“Chevalier”) are listed in the Hong Kong Stock Exchange, and over 62% of those shares were owned beneficially by the Deceased and now his estate (“the Chevalier Shares”).

3.Since 2019, the parties herein have, by way of various consent summonses, applied to the Court for orders that administrators pendente lite (“APLs”) be appointed for the sole purpose of exercising the voting right attached to the Chevalier Shares at the Annual General Meetings of Chevalier.  The Court has invariably approved those consent summonses, and as a result, Ms Lily Fenn of the plaintiff’s solicitors and Mr Simon Tang (or Ms Chan Sze Man, as the case may be) of the defendants’ solicitors have been appointed as Joint APLs (“the Joint APLs”), pursuant to 6 court orders made on 9 August 2019, 14 August 2020, 30 July 2021, 3 August 2022, 10 August 2023 and 31 July 2024 respectively (“the Joint APLs Orders”). 

4.It is noted that while the Joint APLs Orders have provided that the costs of the Joint APLs shall be paid out of the estate of the Deceased, the respective hourly rates of the APLs have not been specified, nor have the said orders provided for how such costs are to be assessed.

5.On 26 September 2024, the plaintiff commenced taxation proceedings on the basis of the Joint APLs Orders (“the Taxation Proceedings”).  From the Bill of Costs filed thereunder, it can be seen that the plaintiff asks therein for taxation for not only Ms Fenn’s costs as one of the Joint APLs but also the plaintiff’s costs of the applications for the Joint APLs Orders.

6.On 24 October 2024, the defendants filed a summons and asked for a stay of the Taxation Proceedings (“the defendants’ Stay Summons”).  It was contended by the defendants that, pursuant to Order 62 rule 9D of the Rules of the High Court (“RHC”), the Taxation Proceedings have been commenced pre-maturely.

7.By consent, the defendants’ Stay Summons was adjourned for substantive argument before Master Maurice Lam on 17 January 2025.

8.Shortly before the hearing on 17 January 2025, the learned Master issued a note containing certain requisitions (“the Note”). The Note drew parties’ attention to sections 40 and 60 of the Probate and Administration Ordinance (Cap.10, Laws of Hong Kong) (“PAO”), and requested parties to make submissions on, inter alia, the applicability of section 60 of the PAO and the way forward of the Taxation Proceedings in the event the said section is applicable.

9.The hearing before the learned Master then proceeded as scheduled, and the parties’ legal representatives had made their respective submissions thereat.  However, upon Ms Fenn’s request, the hearing was adjourned part-heard to 25 February 2025, so as to allow time for the plaintiff to lodge further submissions.  Leave was granted to the plaintiff to lodge and serve such further submissions by 11 February 2025.

10.The plaintiff did not lodge any further submissions pursuant to the learned Master’s order.  Rather, on 17 February 2025, she took out another summons (“the plaintiff’s Summons”) returnable before this Court this morning for a number of orders.  In a gist, the orders sought provide that:

(1)  Parties shall propose or agree on the scales or rates or amounts of professional charges payable to the Joint APLs;

(2)  In the event agreement cannot be reached, the plaintiff and the defendants shall lodge and serve their respective Statement of Costs covering the Joint APLs’ charges followed by Statement of Objections;

(3)  The costs of the Joint APLs be summarily assessed;

(4)  The defendants’ Stay Summons be adjourned sine die with liberty to restore before this Court, to be heard together with the plaintiff’s Summons if necessary;

(5)  The hearing before the learned Master on 25 February 2025 be vacated.

11.While the hearing for the plaintiff’s Summons was only fixed to be heard for 15 minutes, there is no reason why it should not be disposed of right away, for reasons which will be made apparent below.

THE COURT’S VIEW

12.In support of the application, Ms Fenn for the plaintiff has made a number of arguments.

13.Firstly, it was argued that in the circumstances where sections 40 and 60 of the PAO are invoked, and the remuneration of the Joint APLs is contested by the defendants, the matter is no longer non-contentious in nature, and therefore the learned Master has no jurisdiction to deal with the matter.

14.With respect, there are 2 misconceptions on the part of Ms Fenn:

(1)  While the learned Master has drawn the parties’ attention to the provisions of sections 40 and 60 of the PAO, what he has done was to ask parties to make further submissions thereon, rather than having made any ruling that those provisions are applicable.  It is therefore pre-mature for Ms Fenn to state that the said provisions are “invoked”;

(2)  It cannot be said that “remuneration of the Joint APLs is contested by the defendants” because, properly understood, the defendants’ main argument in support of the defendants’ Stay Summons is that the plaintiff should not have commenced taxation proceedings in relation to her own cost, given there is no order for “forthwith” taxation.

15.In any event, even if the learned Master no longer has jurisdiction to deal with the matter, the appropriate way for the plaintiff to handle the matter is to cause the proceedings before the learned Master to be properly disposed of first, rather than asking this Court to order for the vacation of the hearing before the learned Master while the application has been adjourned part-heard.

16.Ms Fenn explained that what the plaintiff is doing is simply for the purpose of “saving time and cost”.  With greatest respect, it has become a common phenomenon that such a phrase would be deployed whenever a party attempts to explain away his/her non-compliance of court procedures.  This is totally unacceptable.

17.Secondly, the plaintiff relies on Practice Direction 5.7 (Long Cases), and submitted that once this Court has been assigned as the trial Judge, all interlocutory applications should be assigned to this Court, and therefore the defendants’ stay application should not be heard by the learned Master.[1]

18.With greatest respect, this argument has been made in total disregard of the purpose of Practice Direction 5.7.  Paragraph 2 thereof reads:

“The aim of this Practice Direction is to set in place a system for the prompt and efficient preparation for and the hearing of trials of cases where the hearing is likely to be lengthy. The directions are for the guidance of the Court and the parties. Because the cases to which this Practice Direction will apply will be varied and the cases themselves will be exceptional, in particular as to their length and often as to the issues involved, the Court may make special orders and instigate exceptional procedure as the nature of a particular case requires.” (emphasis added)

19.The taxation or assessment of costs, and the question of stay of the taxation or assessment procedure, would not have any impact on the “preparation for and the hearing of” the trial.  The reliance on the said Practice Direction is therefore futile.

20.Indeed, such reliance is apparently an after-thought on the part of the plaintiff, because she has never raised this point before the adjournment of the stay application part-heard before the learned Master.

21.Thirdly, Ms Fenn argued that the plaintiff’s Summons and the stay application are interrelated and therefore should be heard together. 

22.I am of the view that this is an over-simplification of the situation.

23.In my view, the applications under the plaintiff’s Summons are totally misconceived and the said Summons should not have been taken out at all.

24.Putting aside the question of whether the Taxation Proceedings are the correct procedure to be used in the current situation, the undisputed fact is that such taxation proceedings have already been commenced for the purpose of quantifying the costs chargeable by one of the Joint APLs.  In such circumstances, it is an abuse of process for the plaintiff to start another procedure for the same purpose.

25.It is an even more apparent abuse for the plaintiff to make an application before a Judge and ask for an order to vacate the part-heard hearing on the defendants’ stay application before the learned Master. 

26.If it is the plaintiff’s view that the matter should be dealt with in a way other than by way of the Taxation Proceedings, it is for her to take step in causing the withdrawal or discontinuance of the Taxation Proceedings first before seeking relief elsewhere.

ORDER

27.For reasons of the aforesaid, I dismiss the plaintiff’s Summons. 

28.If it is considered necessary, it is up to Ms Fenn, as one of the Joint APLs rather than as the plaintiff’s solicitor, to liaise with the parties as to how her costs as one of the Joint APLs should be assessed.

COSTS

29.Costs should follow the event. 

30.The defendants ask for an indemnity costs order.

31.Ms Fenn submitted that while it is true that the plaintiff was trying to take a short-cut, she was not doing it for her own benefit but for the benefit of the estate.  Therefore, no indemnity cost order should be made against her.

32.Firstly, while I think the plaintiff is right to say that the Joint APLs Orders were obtained for the benefit of the estate, I do not think the same can be said of the plaintiff’s Summons, which is the subject matter that is being dealt with by this Decision.

33.In any event, what this Court is focusing herein is not whether it is right for an application to be made for the quantification of the Joint APLs’ remuneration (in respect of which I express no view herein).  What I hold against is the way the plaintiff handled this matter, which, as explained, must be an abuse of the process of the Court.

34.I see no reason why the defendants should be dragged into this kind of application. 

35.In my view, the circumstances of the present application is so exceptional that justifies the making of an indemnity costs order against the plaintiff.

36.The defendants’ costs are therefore assessed accordingly at $110,111. 

37.By consent, the plaintiff shall pay such costs by 21 March 2025.

Ms Lily Fenn of Lily Fenn & Partners, for the plaintiff

Ms Jacqueline Law, instructed by P C Woo & Co, for the defendants