Wan Po Jun Mary Pauline v. Liu Chan and Lam and Another

HCA 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10 OF 2010

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BETWEEN

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Coram : Before Master Lung in Chambers

Date of Hearing : 9 July 2010

Date of Handing Down Reasons for Decision : 9 July 2010

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REASONS FOR DECISION

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The application

1.The defendants in this action have taken out their respective summonses to strike out the plaintiff’s statement of claim and this Action on the grounds under Order 18 Rule 19 of the Rules of the High Court, viz.: (a) it discloses no reasonable cause of action; (b) it is scandalous, frivolous or vexatious; or (c) it is an abuse of process of the court.

2.In the statement of claim, the plaintiff seeks an injunction against the 1st defendant and 2nd defendant restraining the defendants, their agents and servants from issuing further notices to quit to the plaintiff until further order of the court and damages to be assessed.  The basis of her claims against the defendants is that the plaintiff was the cohabitee and consort companion of the deceased, the late father of the 2nd defendant since 1989.  She considers that she is entitled to stay in the property at flat A, 42/F, Block I, Harbourfront Landmark, 11 Wan Hoi Street, Kowloon, Hong Kong.  The 2nd defendant has instructed her solicitors, the 1st defendant, to issue notices to quit respectively dated 30 April 2008 [p.65 of the bundle] and 10 December 2009 [p.69].  The plaintiff says that such letters are a threat to her and she now asks the court to grant the injunction.

3.The plaintiff has now confirmed before me today that the 2nd defendant has already obtained Probate of her late father’s estate, which is contrary to paragraph 6 of her statement of claim.  She says that the Probate only came to her attention in February 2010.  Up to date, the Probate is still effective.  The plaintiff also agrees that the property she is now residing at is part of the estate of the deceased.

The Law

4.The principles governing a striking out application are well established.  Para.18/19/4 of Hong Kong Civil Procedure 2010 Vol.1 at pp.394-396 provides inter alia as follows:

“…… It is only in plain and obvious cases that the court should exercise its summary powers to strike out …… any pleading under this rule. …… Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. …… The mere fact that the case is weak and not likely to succeed is no ground for striking it out ……

It is for the party seeking to strike out …… pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. ……

…… This rule also empowers the court to amend …… any pleading. If a statement of claim does not disclose the cause of action relied on, an opportunity to amend may be given, …… even though the formulation of the amendment is not before the court …… However, unless there is reason to believe that the case can be improved by amendment, leave will not be given. Or where the amendments would be far-reaching and so radical as to amount to a totally new pleading which would probably provoke a fresh application to strike out, the correct course is to strike out. ……” (emphasis added)

Discussion

5.Based upon the evidence before me today, it is quite clear that the 2nd defendant, being the executrix of the deceased’s estate, is entitled to administer her late father’s estate and in fact she has the obligation to do so for the proper administration of the estate.  She has the power to appoint the 1st defendant to assist her in her administration of the estate.

6.I find that the plaintiff has not been able to adduce any evidence to show the she is entitled to remain in the property.  She therefore has no right to prohibit the 2nd defendant from the administration of the estate.  The issuing of the letters is part of the administration of the estate.  The 1st defendant has the instructions from the 2nd defendant, as confirmed by the 2nd defendant.

7.I therefore find that there is no legal basis for the plaintiff to take out the writ against the 1st defendant and the 2nd defendant for the injunction and damages as pleaded in her statement of claim.

8.I have also considered whether the plaintiff may amend her statement of claim to make her case good. Having considered her evidence and her submissions before me today, I do not think that any amendment can remedy her action against the defendants.

9.In the end, I accede to the defendants’ request and I strike out the plaintiff’s statement of claim and the Action against the 1st defendant and the 2nd defendant.

10.As to the costs, the 1st defendant has submitted a schedule of costs for this Action.  The plaintiff has raised no specific objection to any of the items in the schedule of costs.  This court will apply a broad- brush approach in the summary assessment of the costs, which are assessed at $50,000.00 to be paid by the plaintiff within 14 days from the date hereof.  As the 2^nd defendant does not ask for costs of this Action, I make no order as to costs for the 2^nd defendant.

The Order

11.I now make the order in terms of following:

(1)       The plaintiff’s statement of claim in the Action against the 1st defendant and the 2nd defendant be struck out and this Action against the 1st defendant and the 2nd defendant be dismissed;

(2)       Costs of this action, including the costs reserved and for today’s hearing be to the 1st defendant assessed at $50,000.00 to be paid by the plaintiff within 14 days from the date hereof.  As to the costs for the 2^nd defendant, I make no order.

Plaintiff, appearing in person.

Mr. David Choi of Messrs. Liu, Chan & Lam for 1st Defendant.

2nd Defendant, appearing in person.