Wan Po Jun Mary Pauline v. Au Yeung Yee Man

HCA 1478/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1478 OF 2009

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Before:  Deputy High Court Judge L. Chan in Chambers

Date of Hearing: 9 March 2010

Date of Decision:   9 March 2010

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D E C I S I O N

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1.This is an appeal against an order of Master Lung refusing to strike out the defence.

2.The defendant is the executor of the estate of one Au-Yeung, deceased.  She was the daughter of Au-Yeung.

3.The plaintiff claims that she had been in cohabitation with Au-Yeung since June 1982 and that continued for years and she had been accepted as a member of Au-Yeung’s family and the defendant’s stepmother.  She claims that Au-Yeung had broken his promise to marry her when under the influence of the defendant and medicine.  Au-Yeung had made a will, but she was not named a beneficiary.  She claims that Au-Yeung made the will under the influence of the defendant and medicine.  She also claims to have lent no less than $3.5 million to Au-Yeung. 

4.She prays for a half share of Au-Yeung’s estate plus the right to occupy a property in Hung Hom which, she said, had been bought by Au-Yeung as the matrimonial home.

5.She also claims repayment of the alleged debt of $3.5 million, financial provision under the Inheritance (Provision for Family and Dependents) Ordinance, Cap. 481, damages for breach of promise of marriage, account of the monies held by Au-Yeung in his bank accounts, injunction to restrain the defendant from disposing of the estate, appointment of receiver to handle the estate pending the outcome of this action and interim monthly payment from the estate pending the outcome of this action.

6.The defendant filed a defence on 9 September 2009.  The plaintiff also filed a Reply on 22 September 2009.  The plaintiff sought some further and better particulars of the defence.  The defendant provided the answers on 4 November 2009.  On 17 November 2009, the plaintiff issued a summons for striking out the defence and for payment on the grounds that the defendant had failed to comply with her request for further and better particulars of the defence and there is no defence.  She also produced a large bundle of photographs depicting her and Au-Yeung appearing as a couple in many family, social and business occasions and also a number of letters from friends and acquaintances stating their understanding of the relationship between Au-Yeung and her.

7.Master Lung heard the summons on 8 February 2010 and dismissed it.  The plaintiff filed a notice of appeal.  She said in the notice that she had answered the defendant’s request for further and better particulars of the statement of claim but the defendant has not answered all her requests for further and better particulars of the defence.  She said it was wrong for the defendant not to provide all the particulars.  She also said that Master Lung was wrong in dismissing her summons or to force her to withdraw the same, which deprived her of the right to have full disclosure of the defence and thus caused her difficulty in preparing her witness statements for the trial of this action.

8.I think this last ground is illogical and wrong.  If Master Lung should have allowed the summons, dismissed the defence and granted her judgment in the action, there would not be any trial to follow.  There would also be no further need for disclosure by the defendant on the defence and she would also have no need to prepare any witness statement for use at the trial.  This ground is therefore wrong.

9.Regarding her first ground that she had complied with the defendant’s request for further and better particulars of the statement of claim, that again cannot justify the striking out of the defence because that in itself does not show that the defence has no merit.

10.Regarding those of her requests for particulars of the defence that the defendant had not answered, the defendant said that the particulars requested for were immaterial, matters of evidence and matters of law and hence need not be provided. 

11.If the plaintiff is not satisfied with these grounds for not providing the particulars sought by her, the proper course is for her to issue a summons seeking these particulars.  She should not have issued a summons to strike out the defence.  Striking out is a drastic remedy and is only exercised in the plain and obvious cases.  It is not the appropriate remedy here.  The plaintiff has no ground to issue the summons to strike out the defence.

12.I, therefore, dismiss her appeal.  I also order her to pay costs to the defendant for the appeal.

(Discussion re costs)

13.I have considered the draft bill presented by the defendant for the purpose of gross assessment of the costs of the appeal.  I have scrutinised each and every item with care, and I find that they are all reasonable and the total sum of $20,845 claimed is a reasonable sum.  I therefore allow it.  I assess the amount of costs that the plaintiff has to pay the defendant for the appeal at $20,845.

The Plaintiff, in person, present

Ms W Y Chan, of Messrs Liu, Chan & Lam, for the Defendant