Re Ng Fook

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Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 1 December 1997

Date of Delivery of Judgment: 1 December 1997

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JUDGMENT

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1. This is an appeal by the Caveator, Madam Leung Sau Lai ("The Caveator") against the Order of Master Chu of 17^th October 1997 ("1997 Order") whereby the application to set aside the Order of Master Jennings of 2^nd December 1996 ("1996 Order") was dismissed. The present appeal comes about in an absurdly convoluted way and a brief chronology of the major events will assist in understanding the issues raised in this appeal.

2. It is common ground that notwithstanding the 1996 Order, once the Writ by the daughter and the Caveator was on foot, the Caveator was and is now able to challenge the Will and therefore the only adverse consequence of the 1996 Order against the Caveator is the costs under the 1996 Order sought to be taxed and recovered by the Executor against the Caveator. I regret that the Executor had thought fit to insist upon the payment of the costs under the 1996 Order and by the most technical means possible to resist the attempt of the Caveator to get rid of that 1996 Order.

3. The question before Master Chu and before me is whether the 1996 Order should be set aside. That depends on whether the 1996 Order was properly made and whether the procedure adopted to challenge the 1996 Order was correct. Apparently before Master Chu, two issues were argued, namely: -

4. At the hearing of this appeal, it is properly conceded by Mr. Pow for the Executor Respondent that automatic stay did apply to the making of the 1996 Order, because the application of the Executor to strike out the Caveat was clearly a matter within the meaning of Action under Section 15 of the Legal Aid Ordinance. It follows therefore that the 1996 Order should not have been made and that it could be said that Master Jennings did not have the jurisdiction to make the 1996 Order. It is to be noted in this context that Master Jennings who was not aware of the Legal Aid application could not be so much faulted as the Solicitors for the Executor. Notwithstanding the fact that the Notification of Legal Aid application had been faxed to them, Solicitors for the Executor went ahead with the application and did not inform Master Jennings of this matter.

5. On the second question, I therefore start with a plain abuse of the proceedings by the Executor. In these circumstance, it must be right that the 1996 Order ought to go (by whatever route) whether by way of the normal route of setting aside an order or by way of appeal. But the most elaborate arguments had been addressed to me by Counsel for the Executor to suggest that 1996 Order should not go because of the procedural wrong steps taken by the Caveator. This standing on principle and this unmovable resistance to an unanswerable bad order gives me the impression, reading between the lines that the Executor is trying to make it as difficult as possible for the Caveator to succeed in challenging the Will of the Deceased. The argument of Mr. Pow for the Executor boils down to a submission that Rule 62 is the only means of complaining about the 1966 Order and that the there is no right for a setting aside of the 1996 Order and that is why Master Chu has no jurisdiction to entertain the application of the Caveator to set aside the 1996 Order. In my judgment, this is not a correct analysis of the remedies open to the Caveator in the circumstances.

6. When an order was made ex parte in the sense that it was not made in the presence of one of the parties, then it is common place to have an application to set aside such an order, which is really made by way of default of argument by one party. In this case, there was no proper determination of merits. The 1996 Order was made in the absence of the Caveator and this absence was brought about because of the Legal Aid application and the expectation of its general consequence of automatic stay. In these circumstances, the Master had no jurisdiction to make the 1996 Order (unless he lifted the stay which he did not) and it was an abuse of the process of the Executor to obtain such an order. Therefore this ex parte order ought to be set aside in the usual way rather than by way of appeal which is the procedure to adopt when there is a proper judgment on the merits.

7. Mr. Pow however argued otherwise and relied on the comprehensive nature of Rule 62. Rule 62 provides that:-

8. It is to be noted firstly that Rule 62(1) on the appeal to the Judge is permissive only and not mandatory. When there is an abuse of the process so that in a case such as this the 1996 Order made was without jurisdiction and null and void, it seems to me that the inherent jurisdiction of the Court can be called upon to address the wrong and that it is not necessary for a party to resort to the elaborate and more expensive procedure of Rule 62. Mr. Pow in his submissions, argued that even if 3 days after Master Jennings had made the 1996 Order, the Caveator is restricted to getting rid of that sealed Order only by the route of Rule 62 and not by way of setting aside application. I disagree with his submission, both as a matter of construction of Rule 62 as well as a matter of the proper application of the purpose of the inherent jurisdiction.

9. Rule 62 is meant to be part of the Rules applicable to non-contentious Probate business. The intention of these Rules is that if there is going to be contentious probate litigation about the Will then such should be left to the Probate Action. In the course of carrying out his functions in the non-contentious probate business, a Registrar might make decisions which can be reversed on appeal to a Judge in Chambers. But this does not mean that the appeal in Rule 62 is the only procedure for attacking a decision of the Registrar and this is specially when that attack is not on the merits but like in many contentious litigation cases, as to whether the Registrar had the jurisdiction to make the Order or where there was no proper service or where all the materials were not put before the Registrar or the many other situations which we see regularly in court proceedings where the Court sets aside orders and judgements. I do not therefore see Rule 62 as a comprehensive code. In my view, an abuse of process does give rise to the inherent jurisdiction of the Court to set aside an order such as the 1996 Order. I did not think much of Mr. Pow's submission that Master Jennings would have no jurisdiction 3 days after he made his 1996 Order to hear an application to set aside his own Order because it seems to me an insult to proper administration of justice that in a situation such as the making of the 1996 Order which was plainly an abuse of the court process that the parties and the Court are forced and restricted to the far greater burden of an appeal to Judge in Chambers (within 7 days). This a an alleaged situation with no parallel in the usual court litigation. In my judgment, there is no merit whatsoever in the ridiculously extravagant argument of Mr. Pow. Master Chu and this Court are not so impotent as to be unable to mould the Court's own procedure as to permit the abuse of process to be corrected in any manner which is appropriate. I refuse therefore to allow this abuse to be further perpetuated by acceding to the Executor's oppressive submission that the Caveator is restricted in her remedy to appeal to Judge in Chambers after a further application (to be made and presumably further resisted) for leave to appeal out of time under Rule 62(2).

10. Strictly speaking this therefore disposes of the appeal. Out of courtesy to the arguments addressed to me I will briefly express my view also on another ground for holding that the appeal ought to be allowed.

11. Mr. Miu for the Caveator argues that once the dispute between the Caveator and the Executor became contentious, the non-contentious probate rules should no longer govern or exclusively govern. In my view, there is considerable force in that argument. Non-contentious probate business is defined in section 2 of the Probate and Administration Ordinance as meaning ".....the business of lodging caveats against the grant of probate or administration". But once the Executor decided to attack the Caveat and took the unusual and for me the bizarre step of applying to strike out the Caveat on the controversial ground that the Caveator was not a widow and therefore had no valid interest, the proceedings became in my view contentious business in every sense of adverse litigation between contending parties. It is to the substance of the dispute that one looks to see if the business is contentious or noncontentious rather than whether a step is taken purportedly under any of the Rules in the Non-Contentious Probate Rules such as Rule 60 relied on by Mr. Pow. The question of the interest of the Caveator in disputing the Will is a matter which invariably is decided in the Probate Action. It is not the function of Master Jennings to have that matter decided under the Non-Contentious Probate Rules or for directions to be given in relation thereto. The Executor has no business doing a strikeout of a Caveat and what is worse is that having done so and wrongly obtained an order which should not have been granted, the Executor now seeks to say that such business was non-contentious probate business. It is to be noted that the Executor obtained costs with Certificate for Counsel in the 1996 Order and it is his wholly unreasonable enforcement of the costs under the 1996 Order which had precipitated this ugly litigation after the Probate Writ was issued. In my view, the 1996 Order was not non-contentious probate business and it follows therefore that Rules of the Supreme Court can apply to the application by the Caveator to set aside the 1996 Order (see Order 1 rule 2 of the Rules of the Supreme Court and the Table thereunder). I conclude therefore that Rule 62 is not the only route to attack the 1996 Order as contended by Mr. Pow.

12. In the circumstances, having regard to the undoubted merits of the Caveator as to the manner in which the 1996 Order was made, I have no doubt that the proper Order which I should make is that:-

(a) The appeal against the 1997 Order should be allowed.

(b) The 1996 Order should be set aside.

(c) The Caveator is to have the costs of the Summons to set aside the 1996 Order as well as the costs of this Appeal with Certificate for Counsel. The Caveator is to have his costs taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Nelson Miu for Appellant Caveator instructed by Messrs John Ku, Tam & Ho

Mr. Jason Pow for the Respondent Executor instructed by Messrs Fairbairn Catley Low & Kong