Kung Wong Sau Hin v. Kung Kwok Sun and Another

HCAP000002A/1982

No. 2/1982

IN THE SUPREME COURT OF HONG KONG

PROBATE JURISDICTION

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BETWEEN

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Coram: Mantell, J. in Chambers

Date of hearing: 17 January 1985

Date of delivery of decision: 17 January 1985

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DECISION

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1. This is a probate action which has been fixed for hearing on 25th February 1985 with an estimate of five days. The action has had a long and checkered history. There has been a decision on the merits in an action heard by Jones J. There has been an appeal from that decision which was dismissed. There has been a further application to the Court of Appeal on the basis of fresh evidence and in the event the Court of Appeal has ordered a new trial before a different Judge.

2. The sole question arising in that new trial concerns the validity of a document purporting to be a will discovered date of the hearing before Jones J. Quite recently the plaintiff has changed solicitors. That was on 7th January, this year. The reasons for her changing the solicitors are not set out in the affidavit or affirmation but I have heard from Mr. Chan, Counsel who appeared this morning, that difficulties have arisen over questions involving fees. It may well be that the fact that there is now a difficulty, if difficulty there is, is not necessarily her fault, but, as I say, the explanation for the change of solicitors has not been deposed or affirmed to.

3. There is now an application by the plaintiff to vacate the hearing date on the grounds that the new solicitors cannot be ready in time, or at least it is feared that they cannot be ready in time, and also on the ground that leading Counsel who it was hoped to retain at the hearing cannot now be available for those dates although at one time he had been. I say at once that the second ground is not one which could be acceded to. I am troubled, however, about the first basis for the application because on any view it is not the fault of the plaintiff's present solicitors that they are now faced with difficulties. It is said by Mr. Chan in support of his application that if the hearing dates are vacated the defendants would have to be indemnified fully on costs and their convenience would have to be regarded in fixing any new date. That, of course, goes without saying.

4. However, Mr. Cheung for the Defendant draws my attention to the matters contained in the affidavit of Mr. Fung and to the fact that it does appear that during the time that the plaintiff was represented by other solicitors there was some history of delay or even the use of delaying tactics. The plaintiff's convenience has been regarded in the past. There has been sufficient time up to now for the case to be prepared for the plaintiff, and even if there has not, there remains a period of five weeks or so which would be sufficient, albeit that the plaintiff's present solicitors would have to make haste to get the case ready.

5. I have looked at, or more accurately glanced at, the judgment of Jones J. in which it appears to me that at the previous hearing the issues of fact fell within a small compass, and it may be that they will do so again. Mr. Chan tells me from the Bar that perhaps it will be necessary to obtain expert evidence but that does not appear on affirmation or affidavit.

6. In the end after a degree of hesitation, which is marked by the fact that it is now eleven in the morning, I have come to the conclusion that it would not be right to accede to this application. Therefore the application is dismissed. I say that without prejudice to the making of any future application but I do indicate that it is very unlikely that I would allow any further application unless the grounds advanced were very much stronger than those put before me this morning.

Representation:

Edward Chan instructed by T.L. Ip & Co. for Plaintiff

D1 in person - absent

K. John Cheung instructed by Y.K. Fung & Co. for 2nd Defendant