Au Yeung Yee Man v. Wan Po Jun Mary Pauline

CACV 208/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2009

(ON APPEAL FROM HCAP 19 OF 2008)

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BETWEEN

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Before : Hon Cheung JA in Chambers

Date of Hearing : 20 January 2010

Date of Decision : 20 January 2010

Date of Reasons for Decision : 27 January 2010 

REASONS FOR DECISION

1.The defendant has lodged an appeal against the judgment of Yam J which affirmed Master Levy’s decision to strike out her defence and counterclaim in a probate action.  The plaintiff applied for security for costs of the appeal.  I refused the application at the conclusion of the hearing.

Background

2.The plaintiff was named as the executrix of the will of her deceased father.  She and her brother were named as the two beneficiaries under the will.  She issued the probate action to prove the will.

3.The defendant claimed to have cohabited with the deceased as husband and wife for nearly 20 years before his death in 2008.  She claimed that she was entitled to administer and also to have a share of the estate.

4.By a separate action against the plaintiff she sought provision as a dependant from the estate of the deceased under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481).  Master Lung had, by consent, ordered that the other action is to be tried together with the probate action.

Impecuniosity of the defendant

5.The special circumstance relied upon by the plaintiff to support her application for security is the impecuniosity of the defendant.  The defendant was granted legal aid in respect of the other action.  The plaintiff claimed that legal aid is granted to persons whose assets do not exceed $175,800.  The estimated costs of the appeal is $251,935.65 and this exceeds the available assets of the defendant. 

My view

6.Of the estimated costs, $75,000 are allotted as counsel’s fee for the present application and the appeal.  In my view the balance of about $176,000 as solicitors’ costs is grossly exaggerated.  A more realistic figure for the total costs of the appeal is about $150,000.  Whilst this is below the available assets of the defendant, if the costs below are taken into account as well, then clearly the defendant would be in financial difficulties to meet the plaintiff’s costs.

7.However, I cannot ignore the claim of the defendant against the estate of the deceased for provision as a dependant.  Without expressing a view on the claim, the defendant does appear to have credible evidence as to her long relationship with the deceased.

8.With this claim, which may result in the defendant receiving a share from the estate of the deceased, the defendant may well have funds to meet the costs order even if her appeal is unsuccessful.  It is not appropriate to order security against the defendant in this appeal.

9.The defendant may have a weak chance of success of the appeal.  While a strong appeal may be a relevant factor in favour of an appellant in the exercise of discretion for security for costs, a weak appeal is not a sufficient ground for ordering security against an appellant.

Costs

10.As the defendant said that she had not incurred any costs, I made no order as to the costs of the application.

Resolution of dispute

11.I will repeat my observation at the hearing that, considering the nature of the case, both parties are best advised to resolve their disputes in an amicable manner by alternative means, such as mediation.

Mr. Paul H. M. Leung, instructed by Messrs Liu, Chan & Lam, for the Plaintiff

Defendant, in person, present