Wu Chiu Mui v. Wu Chak Man
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HCMP 2170/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2170 OF 2008 ----------------------
---------------------- BETWEEN
---------------------- HCAG 7582/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE APPLICATION FOR GRANT NO. 7582 OF 2001 ----------------------
---------------------- Coram : Before Master Levy in Chambers Date of Hearing : 24 June 2009 Date of Handing Down Decision : 29 June 2009 ------------------------ D E C I S I O N ---------------------- INTRODUCTION 1.In his last will dated 16 August 1989 (“the Will”), the Deceased (who had since died in 1999 domiciled in Hong Kong) gave 1/10 of his residuary estate to his daughter of the surviving widow, second wife (“the Daughter”) and the remaining 9/10 to the son of the first wife (“the Son”). 2.Upon the death of the Deceased, the Son, represented by Messrs. Chung and Kwan (“CK”), on 19 September 2001 applied for letters of administration with Will Annexed in HCAG 7582 of 2001 (“the Son’s application”) when the two executors appointed in the Will having renounced their rights to probate and execution of the Will. However, the Son’s application could not be proceeded with because of the successive entries of Caveats by Messrs. W.I. Cheung & Co on behalf of the surviving widow of the Deceased, and the Daughter- whose last Caveat was entered on 18 June 2009 by her present solicitors, Messrs. Iu, Lai & Li. 3.Apart from issuing a warning on 3 April 2002 to the Caveator (the surviving widow), CK has not issued any warning to any of the Daughter’s Caveats. 4.After the warning by CK to the surviving widow’s Caveat entered on 19 March 2002, the surviving widow has since stopped entering any Caveats, and the only repeated Caveats entered have been by the Daughter. 5.Apart from repeatedly entering Caveats to prevent any grant to be issued to the Son, the Daughter also in October 2006 issued an originating summons to apply for a grant of letters of administration. However, due to the difficulty of service on the Son, the Daughter discontinued the originating summons after she had failed to renew the writ within time. 6.The Originating Summons of the present action (“the O.S.”) seeking an order for letters of administration granted to the Daughter was filed on 3 November 2008. By the order of Master J. Wong, the Daughter was granted leave to serve the O.S. on the Son out of jurisdiction by substituted service by way of advertisement. HEARINGS Call-over hearing on 18 June 2009 7.This matter first came before me on 18 June 2009 in a 3-minute chamber list by a “Notice of Appointment to Hear Originating Summons”. 8.In the first hearing, the Daughter was represented by counsel, Mr. Li, who had prepared a written submission. In it, he submitted that the Daughter ought to be granted letters of administration. 9.At the hearing, neither the Son nor CK were present despite proof that service of the “Notice of Appointment” had been served on them. Mr. Li submitted that since the Certificate of No Acknowledgment of Service had been duly filed, I should grant judgment in favour of the Daughter. 10.In spite of my observation that the O.S. was not a correct mode of application, I adjourned the O.S. and ordered the Son’s application be brought up to be dealt with together. I also directed CK, as solicitors in the Son’s application, to appear at the adjourned hearing. Adjourned Hearing on 24 June 2009 11.At the adjourned hearing, Miss Wong of CK appeared as directed as solicitor of the Son’s application. She made no submissions in respect of the O.S. as she said she had no instructions. 12.Neither did Miss Wong make any representation in respect of the Son’s application for the same reason. 13.When I raised the issue of propriety of the O.S. Mr. Li agreed that rule 25(2) of the Non-Contentious Probate Rules, Cap.10 (“NCPR”) required an application for a grant by persons in the same degree be instituted by summons. He however urged me to have regard to the substance rather than the form, and to accept the O.S. notwithstanding it being procedurally wrong. 14.As there is a preliminary issue of procedural irregularity, I will therefore dispose of the procedural point first. IS THE O.S. IRREGULAR? 15.The Daughter is presently still the Caveator in the Son’s Application by virtue of the last Caveat she entered on 18 June 2009, which, according to rule 44(4), NCPR, will be in force for 6 months from that date. The O.S. was issued during the validity of an earlier Caveat the Daughter entered on 16 June 2008. 16.As she is one of the beneficiaries named under the Will, she is entitled to a grant in the same degree as the Son. The Daughter’s claim for entitlement to a grant amounts to disputing the Son’s entitlement to the same grant, and according to rule 25(2), NCPR, such dispute is to be resolved by way of summons (which Mr. Li also accepted). 17.Further, O.5 rr.3 and 4 of the Rules of the High Court also specify the circumstances suitable for the originating process, and the relief the Daughter is seeking does not fall within the circumstances Order 5 provides. 18.I thus find that the O.S. has been wrongly instituted, and should never have been resorted to. 19.The correct procedure is for the Daughter to issue a summons under rule 25(2), NCPR, in the same application as the Son’s application rather than by fresh proceedings. CONSEQENCE 20.Proceedings wrongly begun by a wrong mode of process are not necessarily void[1]. An action will not usually be struck out merely because the wrong originating process had been used or because of a formal defect. The court retains a discretion to treat proceedings as having been commenced by a correct mode even though they had not[2]. 21.The defect in the present case lies with the commencement of a fresh action instead of issuing an inter- partes summons in the existing application of the Son’s application as required by rule 25(2), NCPR. Before I decide whether and how my discretion is be exercised, I should consider the underlying disputes giving rise to the Daughter’s application for a grant. FACTUAL MATTERS 22.The Son’s application for non-contentious probate was made on 19 September 2001. Whilst it is true that the issue of a grant to the Son would not have been possible in light of the repeated Caveats, I tend to agree with Mr. Li that the Son has indeed shown no intention to proceed with the application as evidenced by the following largely undisputed:
DISCRETION EXERCISED 23.Hence, as both the Son and CK have been duly served with the O.S. and they have not shown any opposition to the Daughter’s application to be appointed as the administrator, I am of the view that no prejudice would be caused to the Son if I were to cure the procedural irregularity by treating the O.S. as if it were a summons made under rule 25(2), NCPR, and that the service of the O.S be treated as if it were a service of the summons. The discretion is thus so exercised. 24.I will now consider who should be a more suitable person to apply for a grant in light of the circumstances highlighted above. On the facts, I come to a view that that it is more likely that the Son has lost interest or become inconvenient to proceed with the application for a grant. Having regard to the benefit of the estate and the inaction of the Son, I consider that the Daughter is a more suitable person to be the administrator of the Deceased’s estate. I further direct that the Daughter be issued the grant once entitlement is shown. 25.Since the Daughter will need to make a fresh application, the Son’s Application will need to be dealt with. 26.I will give CK 7 days of the handing down of the Decision to withdraw the Son’s application by letter. The Daughters are to be notified of the withdrawal so as to enable her to forthwith lodge the application for grant. 27.Should the application of withdrawal be not forthcoming, I am inclined to dismiss the Son’s application. However, both the rules in Hong Kong and UK are silent on how the existing application should be disposed of in the event that a court has decided another person is to be entitled in place of an existing applicant for grant. I would therefore invite further submissions on this particular procedural point before I proceed to dismiss the Son’s application. I direct counsel and CK (as they are still solicitors on record in the Son’s application) to lodge and serve written submissions within 7 days of the expiry of the time stipulated in paragraph 26 above should the Son’s application be not withdrawn, and state:
COSTS 28.For the costs of the O.S., I grant a costs order nisi that the Daughter should have the costs together with a certificate for counsel, which costs are to be paid out of the estate. 29.I further order that the costs be summarily assessed in lieu of taxed costs. As I have found the Daughter has wrongly instituted the O.S., I direct that her costs would be assessed on the basis of a summons under rule 25(2), NCPR 30.I also direct that within 7 days of the nisi costs order becoming absolute, the Daughter is to submit to me (and serve on CK) a statement of costs for the assessment of cost to be disposed of on paper. Any objections are to be lodged and served after 3 days of the service on CK of the statement of costs.
HCMP 2170/2008 Mr. C.Y. Li, instructed by Messrs. Iu, Lai & Li for the Plaintiff. The Defendant, acting in person, being absent. HCAG 7582/2001 Ms. T. Wong of Messrs. Chung & Kwan for the Applicant. [1] Hong Kong Civil Procedure 2009, para.2/1/6. [2] Ibid, para.5/3/1. |
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