Chiu Tak Kwong and Another v. Tan Yufang
Read the full judgment text of HCAP 9/2006 on BabelCite. This High Court CFI judgment was delivered on 11 June 2010.
1. This is my decision as to whether I should, pursuant to section 52A of the High Court Ordinance, order the 2 nd , 3 rd and 4 th plaintiffs to jointly and severally bear the defendant’s costs together with the 1 st plaintiff.
Cited by 5 cases · Cites 1 case
|
[English Translation – 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO. 9 OF 2006 ------------------------------------- BETWEEN
[The 2nd , 3rd and 4th Plaintiffs were added as per the judgment of Deputy High Court Judge L Chan dated 5 March 2010 pursuant to section 52A(1) and (2) of the High Court Ordinance] ------------------------------------- Before: Deputy High Court Judge L Chan Date of Hearing: 8 June 2010 Date of Decision: 11 June 2010 ---------------------------- DECISION ---------------------------- 1.This is my decision as to whether I should, pursuant to section 52A of the High Court Ordinance, order the 2nd, 3rd and 4th plaintiffs to jointly and severally bear the defendant’s costs together with the 1st plaintiff. Background 2.Chiu Tak Shing (“Tak Shing”) signed an agreement with the defendant, Tan Yufang (“Tan”) over the distribution of the estate of the deceased, Chiu Lin Chau’s (“Chiu”). Tan also signed a Renunciation of Probate. Tak Shing was born to Chiu and his first wife, and Tan was Chiu’s second wife. Tak Shing signed the agreement on behalf of himself and his full siblings, while Tan did so on behalf of herself and the daughter she has by Chiu, Chiu Nga Yee (“Nga Yee”). 3.Tak Shing is the elder brother of the 1st plaintiff, Chiu Tak Kwong (“Tak Kwong”). Therefore Tak Kwong was also a party to the agreement. In the present case Tak Kwong sought a declaration from the court that both the agreement and Tan’s Renunciation of Probate were binding. He also asked for an order to appoint him as the administrator of Chiu’s estate. 4.Although the agreement was signed by Tak Shing on behalf of himself and his four full siblings, this action was brought against Tan by Tak Kwong only and none of his full siblings was a party to these proceedings before 5 March 2010. 5.I gave judgment in favour of Tan on 5 March 2010 and made a costs order nisi requiring Tak Kwong to pay Tan’s costs, to be taxed on the indemnity scale. Tak Kwong did not apply to vary the order within 14 days of the order nisi, hence it automatically became absolute after that period. Both Tak Kwong and Tan were legally aided. 6.Although this action was instituted against Tan by Tak Kwong only, his full siblings would have received the same benefits if Tak Kwong had won the case. Further, his two sisters and elder brother cooperated fully with him in this action and testified for him. Their evidence also showed that the five of them full siblings took a common stance when negotiating with Tan over the distribution of Chiu’s estate. In fact when counsel on both sides were handling this trial they proceeded on the basis that the claim belonged to all of the five siblings. Consequently I added Tak Kwong’s elder sister, elder brother and younger sister, namely, Chiu Yuk Lan (“Yuk Lan”), Tak Shing and Chiu Yuk Chun (“Yuk Chun”) as the 2nd, 3rd and 4th plaintiffs in my judgment so as to consider whether they should be ordered to jointly and severally bear Tan’s costs with Tak Kwong, the 1st plaintiff. 7.I did not add Chiu Tak Ming (“Tak Ming”) as a plaintiff because he took no part in these proceedings, nor did he assist Tak Kwong by testifying for him. 8.I instructed those representing Tan that they should give the plaintiffs notice of hearing of not less than one month, so that they would have sufficient time to seek legal advice and prepare their submissions. 9.I also pointed out in my judgment that the High Court shall have power to make an order awarding costs against a person who is not a party to the relevant proceedings pursuant to section 52A(1) and (2) of the High Court Ordinance. Order 62, rule 2(4) and rule 6A(1) of the Rules of High Court further set down the procedures for exercising such powers. The English and Chinese versions of section 52A(1) and (2) of the High Court Ordinance and Order 62, rule 2(4) and rule 6A(1) of the Rules of the High Court are as follows:
Defendant’s submissions 10.Tan was of the view that I should order Yuk Lan, Tak Shing and Yuk Chun to jointly and severally bear Tan’s costs with Tak Kwong. Mr Ho on behalf of Tan first submitted that this was a defended action and hence the costs should not be paid out of Chiu’s estate but rather by the losing party (See: Nina Kung v Wang Din Shin (No. 2) (2006) 9 HKCFAR 800, para. 10-12). I do not intend to discuss this matter as it is not in conflict with the costs order nisi that has become absolute. 11.Mr Ho further submitted that in a case where there were special circumstances, the court could order that costs be taxed on an indemnity basis. I do not intend to discuss this matter either since it likewise does not conflict with the costs order nisi that has become absolute. 12.As a matter of fact, Mr Shum on behalf of Tak Kwong, Yuk Lan, Tak Shing and Yuk Chun did not challenge that in the present case costs should follow the event and they should be taxed on the indemnity basis. These two points were therefore not in dispute in these proceedings. 13.Mr Ho further submitted that Yuk Lan, Tak Shing and Yuk Chun were all parties to the agreement and should be joined as plaintiffs in this action. He relied on Hong Kong Civil Procedure 2010, para. 15/4/12 to support his argument. As noted above, Tak Shing signed the agreement with Tan on behalf of his full siblings. Under the agreement, Tan agreed to give up her rights in Chiu’s Hong Kong home so that Chiu’s children ( including Nga Yee) could share the rights equally, while Tak Shing on behalf of himself and his full siblings transferred to Tan their rights in a mainland property that Chiu owned. If Tak Kwong had been successful in this case, his full siblings would have received the same benefits. Yuk Lan, Tak Shing and Yuk Chun also fully cooperated with Tak Kwong and testified for him at trial. 14.In addition, Tak Kwong applied to serve on all of his siblings (including Nga Yee) notice of the action pursuant to Order 15, rule 13A(1) of the Rules of the High Court, so that all of them shall be bound by any judgment given in the action as if they were a party thereto as per Order 15, rule 13A(4). His application was granted by a master on 9 May 2007. 15.The English and Chinese versions of Order 15, rule 13A(1) and (4) of the Rules of the High Court are as follows:
16.With the master’s approval, solicitors for Tak Kwong served a notice on his siblings, who however did not acknowledge service of the originating summons as per Order 15, rule 13A(4). They therefore did not become a party to the action. Nevertheless, since the notice had been served on them, and pursuant to the stipulation of rule 13A(4), they would be jointly bound by any judgment given in the action and if Tak Kwong had won the case, they would have jointly owned the rights in respect of the agreement. Even if Tak Kwong was unsuccessful, they would not have to bear the costs consequences. Since Tak Kwong was legally aided, the costs that he had to bear in the event of losing his case was limited. Mr Ho submitted that this arrangement showed that Yuk Lan, Tak Shing and Yuk Chun were ill-intentioned and meant to evade the liability to pay costs. 17.In my view, whether Tak Kwong and Tan or any of the parties were legally aided is irrelevant to the decision that I have to make. If it is in the interests of justice that Yuk Lan, Tak Shing and Yuk Chun should bear Tan’s costs, then regardless of whether Tak Kwong and Tan were legally aided, I will have to make an appropriate order for them to bear the costs. 18.However, I agree that not only did the three of them actively assist Tak Kwong in proceeding with the case, they also hoped to jointly receive the benefits if Tak Kwong was successful in the action. Yet they did not apply to be joined as plaintiffs, nor did they acknowledge service of the writ of summons after receiving the notice from Tak Kwong’s solicitors. Their purpose was to avoid the liability to pay costs if the case was lost. Evidence in the case also showed that before the proceedings were begun, the three of them had actually sought legal advice regarding the inheritance of Chiu’s estate. 19.Mr Ho further submitted that all three of them would be entitled to a share of Chiu’s estate, but I do not think that is a reason why they should be made to bear the costs. 20.Mr Ho also mentioned that in my judgment of 5 March 2010, I held that the 3rd and 4th plaintiffs had orally threatened Tan and that none of the four brothers and sisters was telling the truth in their evidence. I agree that this point is worth considering. Plaintiffs’ submissions 21.Mr Shum on behalf of Tak Kwong did not express any views at the hearing. 22.Yuk Lan, the 2nd plaintiff, claimed in her written submission that she and her husband had limited education and were earning a low income. They were between the grassroots to lower middle levels of society. Although their three children were all in employment their income was meagre. They lived in public housing and led a frugal life, so they were able to build up a little savings. However, her husband had recently suffered a relapse of his heart disease. In order to raise funds for the operation, they had to dig into their savings and borrow money from their brothers and sisters. She therefore had no means to pay Tan’s costs. If I were to order her and her brother and sister to pay the costs, she would not be able to afford her husband’s operation fees. Hence she hoped that I would not make such an order. 23.Tak Shing, the 3rd plaintiff, stated in his written submission that he used to work in a hotel kitchen for many years, but the hotel was wound up in late February of this year and he was currently unemployed. Although both his son and daughter were working, they did not earn much because of their limited education. He was living a lower class life and despite many years of toil, he was only able to save up a few pennies. He therefore asked me not to order him to bear Tan’s costs. 24.In her written submission, Yuk Chun, the 4th plaintiff, said that she was just an ordinary clerk while her husband worked in a fast food chain store. Their income was limited and what little savings they had would have to be used as education funds for their children and to meet the family’s occasional needs. Her daughter having completed her first year at university, in the next two years she would still have to pay for her tuition, boarding and overseas exchange, etc, which would amount to hundreds of thousands of dollars each year. And her daughter intended to pursue a master’s degree. Her son was now studying at Form 4 and he would have to be put through university for four years. If I were to make her pay Tan’s costs, her children’s bright future would be destroyed and her son might be deprived of his university education. She therefore urged me not to order her to pay Tan’s costs. Decision 25.In my judgment, Yuk Lan, Tak Shing and Yuk Chun were all parties to the agreement. All of them testified in court to assist Tak Kwong in proceeding with the case. When negotiating with Tan for a settlement, they took the same stance as Tak Kwong and the roles they played were not materially different from Tak Kwong’s. All of them had vested interests in this case in that if Tak Kwong had won, they would have received the same benefits. Although they were not parties to this action before 5 March 2010, their status was effectively the same as that of Tak Kwong. They did not join as parties only because they wanted to avoid the liability to pay costs to the winning party in case they lost. In my view, it was correct to join them as plaintiffs in this action so that I can exercise the powers conferred by section 52A of the High Court Ordinance. I have also referred to Hong Kong Civil Procedure 2010, paras. 62/6A – 62/6A/5 cited by Mr Ho. 26.I have further considered the submissions of Yuk Lan, Tak Shing and Yuk Chun. Save for explaining their financial difficulties, they did not give any reasons as to why I should not order them to bear Tan’s costs. In my view, personal financial circumstances can have no bearing on my decision as to whether I should make them bear the costs. I should only consider whether the principle of justice will require me to make such an order. 27.Based on the above analysis, in order to be fair to Tan, I hereby order the four plaintiffs to jointly and severally pay Tan’s costs. 28.I will also make a costs order nisi as follows: Yuk Lan, Tak Shing and Yuk Chun shall jointly and severally pay costs of these proceedings to Tan, including counsel’s fees, to be taxed by a taxing master on the party and party scale. Tak Kwong, on the other hand, is not required to pay such costs and I make no order as to costs regarding Tak Kwong’s participation in these proceedings. As for the respective costs of Tak Kwong and Tan, they shall be taxed in accordance with the Legal Aid Regulations. The costs order nisi shall become absolute unless either party applies to vary it within 14 days of today.
Erik Shum, instructed by Hon & Co. and assigned by the Legal Aid Department, for the 1st plaintiff The 2nd, 3rd and 4th plaintiffs, in person, present Jimmie Ho, instructed by Fung, Wong, Ng & Lam and assigned by the Legal Aid Department, for the defendant Translated by the Judgment Translation Unit of the Judiciary and approved by P. Y. Lo, Barrister-at-law. |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCAP 9/2006