Wang Din Shin v. Nina Kung

CACV17 /2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL 17 of 2004

(ON APPEAL FROM HCAP No.8 OF 1999)

______________________

---------------------------------

BETWEEN:

Before: Hon. Stock and Yuen JJA and Hon Waung  J in Court

Date of hearing and decision on costs: 30 November 2004

Date of Reasons for decision on costs: 15 December 2004

--------------------------------------------------

REASONS FOR DECISION ON COSTS

---------------------------------------------------

Hon.  Stock JA:

1. Upon the adjournment of the recusal appeal on 30 November 2004, this court made no order as to costs of the adjournment.  We said that we would give reasons for that decision as to costs, and those reasons are now provided in the judgment of Yuen JA, with which I respectfully agree.

Hon Yuen JA:

2. On 30 November 2004, this court adjourned the hearing of CACV 17/2004 ("the Recusal Appeal") to 17 March 2005 and directed that the hearing of  CACV 275/2004 ("the Adjournment/Capacity   Appeal") be brought forward to be heard on 11 January 2005 instead of on 17 March 2005. 

3. After hearing the parties’ submissions on the costs wasted as a result of the adjournment of the hearing on 30 November 2004, this court made no order as to costs.     

4. The background of this appeal is well-known.  The Plaintiff and the Defendant are respectively the father and widow of Wang Teh Huei (“the Deceased”).  In Probate Action No. 8 of 1999, the Plaintiff sought probate of a will made in 1968 which made him the sole executor and beneficiary of the Deceased’s estate (“the Estate”).  The Defendant counterclaimed for the grant of probate of a will purportedly made by the Deceased in 1990, which if authentic, would have had the effect of revoking the 1968 will.  The Defendant claimed to be the sole executrix and beneficiary under the 1990 will. 

5. Pending the determination of the Probate Action, Joint Administratorspendente lite were appointed. 

6. On 21 November 2002, Yam J delivered judgment in the Probate Action dismissing the Defendant’s counterclaim and granting probate of the will propounded by the Plaintiff.  However on the same day,  Chu J ordered that notwithstanding that judgment, the appointment of the Joint Administrators as administrators pendente lite, and the grant of letters of administration pending suit to them, continue on the same terms pending further order of the court.

7. Since their appointment, the Joint Administrators have commenced a number of legal proceedings, some involving the Defendant personally or companies in which she has or claims to have a personal interest (solely or as co-shareholder or partner of the Estate).

Defendant’s Removal Application

8. On 25 September 2003, the Defendant issued a summons for an order that the Joint Administrators be "removed with immediate effect in the interests of the Estate and by reason of their conduct in their administration thereof, and be replaced by such other persons as the Court may deem fit" (“the Removal Application”). 

Defendant’s Recusal Application

9. In the same summons, the Defendant sought an order that the Removal Application be heard by a judge other than Chu J and Chung J, who had both been involved as administration judge in ex parte applications made by the Joint Administrators for directions, including applications for sanction of the legal proceedings referred to above (“the Recusal Application”).

Joint Administrators’ Adjournment Application

10. On 7 November 2003, the Joint Administrators issued a summons that the Removal Application be adjourned until after the final determination of the Probate Action ("the Adjournment Application").  It has been understood that this now refers to the appeal to the Court of Final Appeal, another division of this court having (by a majority) dismissed the Defendant’s appeal on 28 June 2004 and having granted her leave to appeal to the Court of Final Appeal on 17 November 2004.    

Joint Administrators’ Capacity Application

11. In the same summons, the Joint Administrators sought an order that  "the Defendant may only bring the [Removal Application] in her capacity as a potential beneficiary", not in any other capacity, and that in bringing the Removal Application, "the Defendant may only advance arguments and adduce evidence as to the effect of the administration of estate in her capacity as a potential beneficiary" ("the Capacity Application").

Recusal Appeal

12. The Recusal Application was heard by Chu J on 22 December 2003 and determined on 31 December 2003.  Even though by this time, the Capacity Application had already been raised, it was not heard until 22-23 April 2004.

13. Chu J declined to recuse herself and this decision has given rise to CACV 17/2004 i.e. the Recusal Appeal.  It was listed for hearing before this court on 30 November 2004.   

Adjournment/Capacity Appeal

14. In the meantime, on 20 August 2004, Chu J ordered that the Removal Application be adjourned pending the determination of the Probate Action and all appeals therefrom.  In her written decision, the judge also decided the Capacity Application, but in light of her decision to adjourn the Removal Application, found it unnecessary to make any orders on the Capacity Application. 

15. This decision has given rise to CACV 275/2004, i.e. the Adjournment/Capacity Appeal.  It was listed for hearing on 17 March 2005.

Order of hearings

16. It became apparent when one read the papers for the Recusal Appeal that it would have made better sense, both as a matter of law as well as a matter of practicality, for the Adjournment/Capacity Appeal to have been heard before or at the same time as the Recusal Appeal.

17. At least from the Joint Administrators’ angle, if the Adjournment decision were upheld, the time and costs involved in dealing with the Recusal Appeal would be saved.  Unless the Defendant succeeds in overturning the judgments in the Probate Action, in effect the Removal Application would never be heard, so it would not matter who should or should not hear it. 

18. Further, the correctness or otherwise of the judge’s decision on the Capacity Appeal may have an impact upon the Recusal Appeal.  If the Defendant’s complaints in her capacity as purported beneficiary could not be entirely hived off from her complaints in her capacity as a private party - about whom Chu J had seen confidential materials presented by the Joint Administrators on an ex parte basis, then it may be arguable that the judge should have recused herself.

19. When this court asked the parties at the hearing on 30 November 2004 why the Adjournment/Capacity Appeal had not been listed for hearing before the Recusal Appeal, it transpired that all parties had seen the good sense of this order of proceeding.   It was the subject of a number of letters passing among the three parties as well as the listing authority.

Correspondence

20. Briefly, the upshot of the correspondence was that the Joint Administrators had first suggested vacating the hearing of the Recusal Appeal listed for 30 November 2004. 

21. This was followed by the Defendant proposing that the Adjournment/Capacity Appeal be heard on 30 November 2004 in place of the Recusal Appeal, with the Recusal Appeal to be relisted on the first available date thereafter. 

22. Although the good sense of that proposal was obvious, it was rejected by the Joint Administrators because Mr Moger QC (who had appeared at the hearing of the Adjournment/Capacity Application with Mr John Bleach SC and Mr Jeremy Bartlett for the Joint Administrators) was not available on 30 November 2004.  There is nothing in the correspondence to indicate that it was known at that time that Mr Bleach SC was also unavailable (although as events transpired, he was unavailable on 30 November 2004).

23. The Defendant’s proposal of putting forward the Adjournment/Capacity Appeal was also rejected by the Plaintiff’s solicitors on grounds which suggest that they might have misunderstood the meaning of certain listing directions given by Rogers V-P.

24. All three parties made representations to Master de Souza, acting as registrar of civil appeals, who directed that the Recusal Appeal should remain listed for hearing on 30 November 2004.  Although the Defendant’s solicitors did refer the master to their proposal of advancing the Adjournment/ Capacity Appeal, this was not raised as a separate application and the matter was not taken further.  Instead the Defendant persisted with the hearing of the Recusal Appeal on 30 November 2004.

Costs order

25. When the Recusal Appeal had to be adjourned by this court so that the Adjournment/Capacity Appeal could be heard first (at some inconvenience to the court’s listing arrangements), the issue of costs had inevitably to be considered.

26. Mr Rowland QC for the Joint Administrators asked for costs, as did Mr Tsang for the Plaintiff.  I am afraid I had very little sympathy for the application.  The Joint Administrators had appreciated from the start that the correct order for the court to deal with the appeals would have been to hear the Adjournment/Capacity Appeal first.  Yet when the Defendant’s solicitors proposed that the Adjournment/Capacity Appeal could be heard first (on 30 November 2004), the Joint Administrators rejected the proposal simply in order to accommodate Mr Moger QC’s diary.  That was despite the fact that 30 November 2004 had been fixed in accordance with Mr Bleach SC’s diary, and there was nothing to indicate at the time of the Defendant’s proposal that he was not available.  Whilst one readily understands a party’s wish to have the counsel of his choice (or in this case, all three counsel of his choice) available at a hearing, this must give way to the higher need for the court’s time to be usefully employed in the proper order of determination of these appeals (an order that the Joint Administrators had themselves correctly suggested).  As for Mr Tsang’s application for costs, as I have said, the grounds given by the Plaintiff’s solicitors in rejecting the proposal were misconceived.

27. Mr Potts QC asked that the costs of the adjournment be reserved to the hearing of the Recusal Appeal.  I did not find that course of action attractive as the costs of this adjournment is a discrete matter that can be dealt with immediately.   Further, the composition of the court hearing the appeal in March 2005 may be different. 

28. Mr Potts QC did not ask that the Defendant be given the costs of the adjournment on 30 November 2004, but even if he had, I do not think that would be justified.  Whilst the proposal that 30 November 2004 be used to hear the Adjournment/Capacity Appeal was the correct course, the Defendant did not make that a specific application to Master de Souza and instead persisted with the hearing of the Recusal Appeal on 30 November 2004 when she also should have known that that would have been an inappropriate course for this court to take.

29. In the circumstances, I considered that the correct order was to make no order as to costs.

Hon Waung J:

30. I agree with the judgment of Yuen JA.

Mr Albert Tsang and Mr Victor Luk instructed by KM Chan & Co for the Plaintiff (Respondent)

Mr Robin Potts QC, Mr Winston Poon SC and Miss Linda Chan instructed by Baker & McKenzie for the Defendant (Appellant)

Mr John Rowland QC and Mr Jeremy Bartlett instructed by Clifford Chance for the Joint Administrators (Respondent)