Au Yeung Wing Hau and Another v. Cheung Pak Chuen

HCAP 4/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2009

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Coram : Before Master Levy in Chambers

Date of Case Management Directions :12 November 2009

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CASE MANAGEMENT DIRECTIONS

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1.This is probate action.  The Plaintiffs, the executors named in the Will of the Deceased ask to have the Will pronounced in solemn form.

2.The Defendant is one of the children of the Deceased.  In his Defence, he requires the Plaintiffs to strictly prove the Will in solemn form.

3.Pleading is closed, and the discovery is completed.  Parties have filed the Order 25 consent summons together with the timetabling questionnaires (“TQ”), and ask to have the case down for trial without the need for a case management conference.

4.In the TQs filed by the parties, both parties state that they do not require a CMC, and that the case is fit to be set down in the running list with an estimate of one day.

5.However, the solicitor for the Plaintiff in Part G1 of the TQ has not given the reason for dispensing with the CMC, and he simply states that “there is no need”.  Altogether the Defendant’s solicitor has similarly not stated the reason in the relevant section of the TQ, he has however given the information in Section J1 by stating that the Plaintiffs are only required to prove the Will in solemn form and the Defendant is not putting forward any positive case.

6.The said information given in the Defendant’s TQ is very useful in helping the court to decide whether a CMC should be dispensed with.

7.Based on the pleaded case of the parties, I am satisfied that in the trial of this case, the Plaintiffs are required only to prove the will in solemn form as the Defendant has not put forward any positive case.  Hence, I agree that the case does not require a CMC.

8.Since the counsel’s certificates on time estimate have now been filed pursuant to my direction, I grant an order in terms of paragraphs 1, 2 and 3 as amended of the consent summons in allowing trial by affidavits, but specifying dates for filing and serving the affidavits.

9.As for paragraph 4, I do not think it is necessary to direct the trial to be heard only by a Probate Judge as requested by the parties.  This matter is relatively straightforward, and can be heard by any Judge.  Hence, I grant leave to set down the case for trial before a Judge within 21 days of the conclusion of the last filing of the affidavit evidence.  The trial should be fixed in the running list with 1 day reserved.

10.I further add two additional directions:

(i)    Any application for extension of time for compliance with the above directions shall be made not more than 7 days after the due date for compliance;

(ii)  After the case is set down, all applications shall be heard by a Judge.

11.Order in terms of paragraph 5 on costs.

12.In the future, if parties take the view that the case is suited to be set down for trial without a CMC, the solicitors must state the reasons in the TQ.  They must not forget also to observe Practice Direction 5.2, D 14 by attaching to the consent summons a certificate on time estimate so as to avoid delay caused by a direction for compliance with the Practice Direction.

Messrs Tang, Wong & Chow for the Plaintiffs

Messrs T H Koo & Associates for the Defendant