Kan Yam Yau and Another v. Kan Yook Tim and Another

CACV 298/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 298 OF 2007

(ON APPEAL FROM HCA 914 OF 2005)

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BETWEEN

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Before : Hon Cheung, Yuen JJA and Poon J in Court

Date of Written Submission by the defendants : 27 June 2008

Date of Written Submission by the plaintiff : 7 July 2008

Date of Decision : 19 August 2008

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D E C I S I O N

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Hon Cheung JA :

1.Pursuant to Paragraph 48 of our judgment dated 18 June 2008, the defendants applied for the following orders :

(1)        The Plaintiffs (namely Kan Yam Yau and Kan Ching Tai) do, on a joint and several basis, pay the defendants the costs of and incidental to this appeal;

(2)        Further, such costs or any part thereof may, at the option of the Defendants, be borne and paid out of the trust fund or property of Kan Kung Cheung Tso;

(3)        Further, or in the alternative, should the Plaintiffs be held to be suing in fact as representatives for themselves and all other members of Kan Kung Cheung Tso (“the Represented Parties”) pursuant to Order 15 rule 12 of the Rules of High Court, such costs or any part thereof may, at the option of the Defendants, be borne and paid on a joint and several basis by the Plaintiffs and all the Represented Parties.

2.In my view the first order is not necessary as the liability of Kan Yam Yau and Kan Ching Tai to pay costs is already joint and several in nature.

3.In my view the defendants are entitled to the second order.  The title and the substance of the plaintiffs’ claim show that the proceedings were brought on behalf of Kan Kung Cheung Tso.  The description of the plaintiff complied with the requirement stated in Tang Yau Yi Tong and Tang Tsan Wa (Manager) v. Tang Mou Shau Tso & Others [1996] 2 HKLR 212 at 219.  The claim was a clear assertion of interest by Kan Kung Cheung Tso in Kan Tak Chung Tso.

4.As the defendants are entitled to the second order it is not necessary to consider the third alternative order sought by the defendants.

5.The costs of this application is part of the costs order that had been made in favour of the defendants.

Hon Yuen JA :

6.I agree.  

Hon Poon J :

7.I agree.  

Mr. Andy Hung, instructed by Messrs Pansy Leung Tang & Chua, for the Plaintiffs

Mr. Keith Yeung, instructed by Messrs Wong, Hui & Co, for the 1^st and 2^nd Defendants