Lau Leung Wa and Another v. Lau Yue Kui and Another

HCAP 10/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION

ACTION NO. 10 OF 2001

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BETWEEN

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Before: Hon Chung J in Court

Date of Hearing: 8 July 2005

Date of Ruling: 8 July 2005

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R U L I N G

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1.D1 asks for leave to file and serve a witness statement of Mr Norman Chui of solicitor, not as an expert giving his opinion as to the fees usually charged by probate solicitors in Hong Kong, but as a factual witness stating facts relating to the legal advice he gave to D1 in October 2000.

2.The application is opposed by the Plaintiffs.  Among the grounds put forth in opposition, the Plaintiffs say that the facts stated in the witness statement are irrelevant to the issues in this action.

3.As stated above, the legal advice given by Mr Chui to D1 took place in October 2000.  However, the fee agreements which are the subject matter of this action were entered into between D1 as administrator and D2 in 1994, 1995 and July 2000 respectively (much earlier than October 2000).

4.Two of the more important issues in this action are (a) whether the terms of the fee agreements are reasonable and (b) whether D1 reasonably believed he properly entered into the fee agreements.

5.In such circumstances, I agree with the Plaintiffs that the legal advice given in October 2000 cannot be relevant to whether D1 acted under a reasonable belief that he should (or could) enter into the fee agreements.

6.It may be argued that the obtaining of legal advice is relevant as evidence tending to show D1 had in fact borne in mind the matters pleaded, for example, in paragraphs 20-21 of the Defence.  This is a matter of credibility and, as such, it is a collateral issue.  Evidence cannot be adduced for the purpose of establishing such an issue.

7.I also agree with the Plaintiffs that, in any event, giving leave to D1 to adduce such evidence at this stage may prejudice them in that, at the very least, there is a likely possibility that the trial needs to be adjourned.

8.For the above reasons, the application for leave is refused.

Mr Anderson Chow, SC leading Mr Albert Yau and Ms Eva Sit, instructed by Messrs Hau Lau Li & Yeung, for the Plaintiffs

Mr Chan Chi Hung, SC leading Mr Jeremy SK Chan, instructed by Messrs Chui & Lau, for the 1^st Defendant

Mr Dennis G Yu, instructed by Messrs Philip Chan & Co., for the 2^nd Defendant