Chan Gordon v. Lee Wai Hing and Another

HCMP1596/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1596 OF 2008

_________________________

BETWEEN

Before : Deputy High Court Judge Au-Yeung in Chambers

Date of Hearing : 23 March 2011

Date of Judgment : 20 April 2011

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JUDGMENT

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INTRODUCTION

1.By a judgment dated 1 March 2011, I have ruled that the property belonged to the 1^st defendant daughter as a result of a proprietary estoppel and constructive trust, and never formed part of her father’s estate.  Pursuant to paragraph 98 of the judgment, parties have made submissions on costs.  The issues before me are:

A. Whether the daughter should have full or 50% costs;

B. Whether the administrator’s own costs should be borne out of the estate;

C. Whether the property should be regarded as part of the estate for the purpose of settling costs;

D. Whether the administrator’s costs should have priority over the daughter’s cost.

A. WHETHER THE DAUGHTER SHOULD HAVE FULL OR 50% COSTS

2.The administrator agrees that costs should follow the event and be paid out of the estate of the father.  However, he contends that the daughter should only get half of her costs as she only partly succeeded.

3.I do not find the daughter’s conduct in pursuing the bank savings to be doomed to failure or unreasonable.   That issue did not take up much time anyway.  As for the claim for the property, she lost on the issue of donatio mortis causa and Pennington v. Waine but the facts to be placed before the Court would not have been much different even if she had just relied on constructive trust and proprietary estoppel.

4.Having considered Re Elgindata Ltd No. 2 and Order 62, rule 5(2) in relation to the conduct of the parties, I hold that the daughter should get the full costs out of the estate even though she had lost on some issues.  She has not asked for costs against the administrator and parties are agreed that costs should be paid out of the estate.

5.The daughter is on legal aid.  Her lawyers have waived common fund costs so I can proceed to summary assessment.

6.Any difficulty in this case was on law and not facts.  The value of the property was not high although the case was important to the daughter.  She carried the burden of proof.

7.There were only 3 witnesses on the daughter’s side.  The ex-boyfriend’s evidence was, without disrespect, not of assistance and the decision to have him as a witness was not a reasonable one.  Mr Yeung claims that the daughter could not recall a lot of things and much time was taken for taking instructions.  However she had stated her case even when acting in person. Therefore, for counsel and solicitors to spend so many hours’ conference with her to elicit further details was excessive on a party-and-party basis.  In addition, as a matter of principle, having 2 fee earners prepare for and attend mediation was not necessary or proper.  I have also made deductions to reflect what I consider to be reasonable time spent on various items of work.

8.With regard to counsel’s fees, whilst the work of Mr Yeung was of high standard, the hypothetical counsel for this case need not be very senior. 

9.Overall, I assess counsel’s fees to be $182,000, profit costs $400,000 and mediator $8,333.

B.WHETHER THE ADMINISTRATOR’S OWN COSTS SHOULD BE BORNE OUT OF THE ESTATE

10.Mr Leung submits that the administrator should have costs out of the estate based on the following proposition:

“Where the claimant seeks to establish a proprietary claim to the whole of a deceased’s estate, the court has allowed costs to the personal representatives out of the disputed property if they have defended the claim in accordance with the court’s directions, and even if they have defended without obtaining the court’s directions.” Lewin on Trusts, 18 ed, 2008, para 21-108.”

11.There was no Beddoe order or Court’s directions on how to defend the daughter’s counterclaim.  Whilst stating that as a professional, the administrator considered it prudent to seek directions from the court in order to ascertain the possible claims by the defendants, he erred in the procedure. He should have used separate proceedings to seek leave of the Court to pursue the claim or defence and included the wife, the daughter and the Uncle to enable them to make submissions to the Court.  In Alsop Wilkinson v. Neary 1995 1 All ER 431, Lightman J said, at page 436 c-g:

“The trustees have sought by means of a summons in this action to obtain directions whether or not to defend the action. Master Gower held that the course was not appropriate and I agree.

The attempted Beddoes application is, I think, fundamentally flawed on at least two grounds. The first is that the application must be made in separate proceedings. This is for good reason. The purpose of the application is to inform the judge as to the strengths and weaknesses of the trustees’ case and the views of trustees and beneficiaries regarding the prospects of success and the course to be taken, for example in respect of a possible compromise. It would be quite inappropriate for all this to be revealed to the court which has to try the case or the other parties to the litigation. On the other hand, as a matter of principle each of the parties to the action itself is entitled to know everything that is communicated to the court trying the action (see Smith v. Croft [1986] 2 All ER 551 at 557-558, [1986] 1 WLR 580 at 588).

The second is that the necessary parties are not before the court. The parties to the action and the necessary parties to a Beddoes application are not the same: in particular the settlor’s wife and their issue are not represented. The justification for the protection afforded to trustees by a Beddoes order is that the beneficiaries are given the opportunity to make representations to the court before the order is made. … An order should not be made in proceedings which are so constituted that beneficiaries are precluded from being heard.”

12.The absence of a Beddoe order, however, is not fatal to the administrator’s application for costs.  The Court can still grant him costs properly incurred if a judge would have authorized the claim (or defence) had the administrator asked for a Beddoe order in advance.  In In the Estate of Lee Mentor, HCAG 5212/1991, the administrator was under the false impression that its costs should be reimbursed by the estate and applied for indemnity for costs on trustee basis after the litigation was over and unsuccessful.  In holding that the action of the trustee was not unreasonable or speculative and hence entitled to costs, the Court held that:

“7. Usually, a trustee will protect itself in advance by getting a Beddoe Order. However, even if no Beddoe Order is applied for, the trustee is still entitled to be reimbursed of the costs out of the estate provided that these costs were properly incurred. The test is that such costs should be allowed if a judge would have authorised the claim had he been asked for a Beddoe Order in advance. In other words, the court puts itself in a position in which the court would have been had an application been made to it before commencing the claim.”

13.In deciding whether a judge would have granted a Beddoe order if one had been applied for, I adopt the following approach.  I consider the prevailing circumstances at the time the claim or the defence was to be filed (“the relevant time”) and not with the benefit of the outcome of the case: In the Estate of Lee Mentor.  I then asked myself 3 questions:

(i) What were the strength and weakness of the administrator’s claim/defence?

(ii) What options were available to cover the administrator’s costs?

(iii) What were the estimated costs of the claim/defence?

Question (i) What were the strength and weakness of the administrator’s claim/defence?

14.In Alsop Wilkinson v. Neary [1995] 1 All ER 431, at 436 it is said that,

“The purpose of the application [for a Beddoe order] is to inform the judge as to the strengths and weaknesses of the trustees’ case and the views of trustees and beneficiaries regarding the prospects of success and the course to be taken, for example in respect of a possible compromise.”

15.There was no evidence of a counsel’s opinion on the merits of the case given at the relevant time.  Mr Leung submitted that the daughter’s case was based on oral allegations and the administrator could not assess the merits. There was no documentary proof of the daughter’s income.  It was based on new evidence in court, namely, her income, that she won the case. 

16.With respect, difficulty in assessing merits was not a reason for not doing so.  I have considered the materials disclosed by the relevant time.  The daughter’s case was based largely on oral evidence.  It was not surprising as many cases on proprietary estoppel and donatio mortis causa were established on oral evidence.  In my view, the daughter’s case had circumstantial support given the simple family circumstances and the fact that she might have been maintaining the father and uncle who were beyond retirement age.  For present purposes, I am prepared to assume that the chance of success of the administrator in resisting the daughter’s case was 50% and it was reasonable for him to make the claim (which in substance anticipated and resisted the counterclaim). 

17.The administrator started off using an Order 113 application to oust the daughter and recover possession.  That procedure is only suitable of clear cases that can be disposed of summarily.  Where the existence of a serious dispute is apparent to a plaintiff he should not use this procedure: Hong Kong Civil Procedure 2011, para 113/8/3. 

18.The Order 113 procedure was doomed to failure because the administrator ought to have known of the existence of a dispute with the daughter.  Back in June 2005 when Mr Gordan Chan applied for letters of administration for the father’s estate, the daughter had entered a caveat.  In HCAP1 of 2006, the wife applied to vacate the caveat and strike out the daughter’s defence.  The daughter pleaded her interests in the property (similar to that in the present action) and counterclaimed for an order that letters of administration be issued to her.  Chu J struck out her defence and counterclaim and vacated her caveat.  (See judgment dated 14 August 2007)

19.At the first hearing of the Order 113 summons, the administrator asked for leave to file affirmation in reply to the daughter’s case.  Although the daughter was absent (she being late for that hearing), Master Ko on his own volition queried whether or not the proceedings should be converted into a writ action in view of the judgment of Chu J.  Clearly, it was apparent to the learned Master that the proper way to proceed should have been by writ in the first place.   Therefore, irrespective of the strength of the administrator’s case or the weakness of the daughter’s case, the Order 113 procedure was an apparent mistake and waste of costs.

Question (ii): What options were available to cover the administrator’s costs?

20.An administrator should remain neutral in the light of rival claims to the assets of an estate.  In Alsop Wilkinson v. Neary [1995] 1 All ER 431, at 435 it is said that,

“I do not think that the view expressed by Kekewich J in the Ideal Bedding case that in a case of a trust dispute (as was the dispute in that case) a trustee has a duty to defend the trust is correct or in accordance with modern authority. In a case where the dispute is between rival claimants to a beneficial interest in the subject matter of the trust, rather the duty of the trustee is to remain neutral and (in the absence of any court direction to the contrary and substantially as happened in Merry’s care) offer to submit to the court’s directions, leaving it to the rivals to fight their battles. If this stance is adopted, in respect of the costs necessarily and properly incurred, for example in serving a defence agreeing to submit to the court’s direction and in making discovery the trustee will be entitled to an indemnity and lien. If the trustee does actively defend the trust and succeeds, for example in challenging a claim by the settler to set aside for undue influence, he may be entitled to his costs out of the trust (consider Re Holden, ex p Official Receiver (1887) 20 QBD 43). But if he fails, then in particular in the case of hostile litigation, although in an exceptional case the court may consider that the trustee should have his costs (see Bullock v Lloyds Bank Ltd [1954] 3 All ER 726, [1955] Ch 317), ordinarily the trustee will not be entitled to any indemnity, for he has incurred expenditure and liabilities in an unsuccessful effort to prefer one class of beneficiaries (eg the express beneficiaries specified in the trust instrument) over another (eg the trustees in bankruptcy or creditors) and so has acted unreasonably and otherwise than for the benefit of the trust estate (consider RSC Ord 62, r 6; and see National Anti-Vivisection Society Ltd v Duddington (1989) Times, 23 November and Snell’s Equity (29th edn, 1990) p 258).” (emphasis added)

21.Before making an order to indemnify the administrator’s costs, the Court may have to consider options for conduct of the litigation and covering his costs: e.g. Re Dallaway [1982] 1 WLR 756(whether the administrator should be indemnified by the beneficiaries); and Evans v. Evans [1985] 3 All ER 289 (whether the beneficiaries as opposed to the personal representative should conduct the litigation).

22.In Evans v. Evans, at page 293, the English Court of Appeal refused to make a Beddoe order on the ground that:

“… in a case where the beneficiaries are all adult and sui juris and can make up their own minds whether the claim should be resisted or not, there must be countervailing considerations of some weight before it is right for the action to be pursued or defended at the costs of the estate. …”

This authority is to be preferred to Re Dalloway: Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, (19th ed), 2008, para 60-11.

23.By the time the statement of claim was filed by the administrator, the potential beneficiaries were known – the daughter, the 5^th Uncle and the wife.  They were all adult and sui juris.  It was likely that a judge would have directed the potential beneficiaries to litigate with their own funds instead of depleting the estate.  In that scenario, the administrator should maintain a neutral stance and needed only to file a defence setting out salient facts and stating he would administer according to the Court’s ruling and to make the necessary discovery.

Question (iii): What were the estimated costs of the claim/defence?

24.It is important that the estimated costs for the litigation should be taken into account so that they would not blow out of all proportion and consume the bulk of the estate.

25.At the relevant time, the value of the estate (comprising the bank savings and the property, less funeral expenses) declared for estate duty purpose was $415,602.63.  Without disrespect, it was not a big estate. 

26.There was no evidence of any attempt to consider the estimated costs involved in the present case.  An experienced litigator in the High Court will know that a 5 day trial can easily consume $500,000 in terms of costs.  The lower in value the subject matter, the more uneconomical to have full blown litigation.  Assuming the costs statement filed by the administrator after trial contained reasonable costs of the litigation and had been placed before a judge on a Beddoe application, it would have been apparent that the whole value of the estate (even including the property) would be consumed, leaving nothing to administer. 

27.Here, the administrator has further put himself into the unenviable situation of conflict of interest by using his own solicitors’ firm to conduct the litigation.  The hourly rates charged at $5,500 (even for the solicitor-administrator who has had over 10 years post-qualification experience) grossly exceeded the usual rates that would be allowed by the Court ($3,500 to $4,000) in a non-complicated piece of litigation.  Instead of maintaining a neutral stance, the administrator has gone to the extent of instructing counsel to litigate to the end of trial. 

28.The answers to the 3 questions make it apparent that a judge would not have granted a Beddoe order and might have directed the beneficiaries to litigate amongst themselves.

Other Conduct of the Administrator

29.I have considered the general position under Order 62, rule 6(2) which provides as follows:

“(2) Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative or the mortgaged property, as the case may be; and the Court may otherwise order only on the ground that the trustee, personal representative or mortgagee has acted unreasonably or, in the case of a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund.”

30.The administrator’s view towards mediation was problematic.  Initially, in March 2010, all parties to this case were agreeable to mediation.  However, the administrator suddenly withdrew his agreement, stating,

“… our client the administrator is of the view that mediation may not be applicable for the instant kind of action praying for pure directions for estate administration because mediator may not make a ruling or declaration of entitlement which ruling/declaration is the legal foundation for the Administrator to properly administer and distribute the estate. Having said that, the Administrator fully understands the costs consequence on indemnity basis associated with unsuccessful mediation.”

31.With respect, this sort of attitude was out-dated and unhelpful in view of the encouragement towards alternative dispute resolution under the Civil Justice Reform.  The mediator was not required to make any ruling or declaration. The important thing was to get all the interested parties to discuss terms that were acceptable to all.  A deed of family arrangement could be entered into, if all beneficiaries were willing.  Had there been mediation earlier, it may be that the costs of contesting the Uncle’s counterclaim could be spared (which was the result of the eventual mediation). 

32.As it were, the administrator did not enter into mediation until I commented at the pre-trial review that the case cried out for mediation.  The mediation that was eventually arranged was not attended by the wife.  No doubt she resided in the Mainland but there was no suggestion of any difficulty in her attendance. She allegedly was of the view that the father and the daughter had only engaged in oral exchanges; the strict law should be followed and she would not come to Hong Kong. She purportedly stated her terms of settlement through the administrator.  

33.The administrator claimed, through counsel at the Bar table, that he had made 2 calls with the daughter asking her not to engage in litigation or else there would be nothing distributed to her; the administrator said that he would follow the administrator’s rules to distribute the estate to the daughter.  The daughter disputed, also through counsel, the existence of those 2 calls. Without documentary proof or affidavit evidence, I am not satisfied that the administrator had made those calls.  As the administrator eventually attended the mediation, I place little weight on matters in this and the preceding paragraph in determining costs.

34.After the mediation, by an open letter dated 7 January 2011, the administrator commented that the daughter’s claims were based on legal advice of her solicitors and should not have been made in the first place.  He pointed that out “as a matter of ethic”.  That had compromised his neutrality.  His view that “a life interest in the landed property which cannot be created except by writing” ignored the equitable notions of proprietary estoppels and constructive trust relied on by the daughter.

35.I am of the view that the administrator had acted unreasonably and partly for his firm’s benefit so as to disentitle him to costs out of the estate under Order 62, rule 6(2). 

C. WHETHER THE PROPERTY SHOULD BE REGARDED AS PART OF THE ESTATE FOR THE PURPOSE OF SETTLING COSTS

36.From what assets should costs be settled?  There are 2 broad categories of assets: the cash in the bank account and the property. Mr Yeung for the daughter submits that the property never fell within the estate and so costs of the administrator should not be taken out from it. 

37.On the other hand, Mr Leung for the administrator submits that:

(i) the property should form part of the estate for the purpose of paying costs: Re Basham [1987] 1 All ER 405 and Re Dallaway [1982] 1 WLR 756; and

(ii) costs should come out of the property but not the cash because the wife did not take part in the litigation: Yung Shu Wu v. Vivienne Sung Wu, FACV 17/2009.

38.With respect, these 3 cases are all distinguishable.

39.In Re Basham, costs were not ordered to be paid out of the subject property.  In that case, the Court awarded the cottage of the deceased to the plaintiff who was his stepdaughter under the principle of proprietary estoppel.  The cottage comprised about half of the value of the estate.  Deputy Judge Edward Nugee QC expressed his tentative views on costs without having heard arguments:

“While costs are always a matter of discretion, there is a general principle in a probate action that, where the cause of the litigation takes its origin in the fault of the testator, the costs of the unsuccessful parties are allowed out of the estate; and if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who incurred them: see Spiers v. English [1907] P 122. Similarly in an administration action, where the difficulty to be solved is created by the testator himself, the costs may be paid out of the estate, and in a proper case may be taxed as between solicitor and client …

The present case has arisen solely out of the failure of the deceased to make the will which was necessary, in view of the absence of any blood relationship, in order that indisputable legal effect should be given to the expectations which he had encouraged in the plaintiff. The defendants had little if any personal knowledge of some of the matters on which evidence has been given by or on behalf of the plaintiff, and were acting not only on their own behalf but on behalf of a number of other nephews and nieces of the deceased who would have been entitled to share in his estate had it passed on intestacy. In all the circumstances I do not think they acted unreasonably in testing the case put forward by the plaintiff which, while based firmly on established principles, on the facts went beyond the facts of any reported case.”

Costs were awarded to the defendant personal representatives, on standard basis (more or less the same as party-and-party basis under Hong Kong law), to be paid out of the estate other than the cottage (at page 416e).

40.Re Dallaway was a decision arising out of a Beddoe application, and not after trial.   There the testator left his entire estate (the most substantial part being a farm) to his 10 siblings equally; and appointed a bank as the executor.  One brother and his wife who had lived with the testator commenced an action seeking specific performance of an alleged oral agreement whereby the testator had agreed to leave his entire estate to the claimants. The other 9 siblings wished the bank to resist the claim.  The bank who was granted probate sought directions as to whether it should continue to defend the claimant’s action and counterclaim for possession from that claimant.  At issue was whether or not costs of the executor should be indemnified against the estate.  At the hearing, the claimants agreed to an order authorizing the bank to carry on the litigation with them but submitted that such an order should be on terms that the bank should obtain an indemnity for its costs from the 9 siblings and should be indemnified out of the estate for its costs to the extent that it could not recover the costs from them.  The claimants submitted that if they succeeded in the action the entire estate would belong to them and it would be unjust for the bank to take costs awarded against it out of the estate and thereby diminish the estate when it would not hold any part of it. Megarry VC expressed reservations about the merits of the claimants’ case (at page 120j to 121b).  He found grave difficulties in the indemnity proposed by the claimants (at page 122h).  He applied the principle that a trustee or personal representative should be accorded full protection for cost properly incurred by him and should under Order 62, rule 6(2) be reimbursed his costs out of the fund held by him, even though the claimants in the proceedings was a beneficiary under a will who was claiming the entire estate.  In such circumstances, the claimant beneficiary was not entitled to an order for costs preserving the disputed fund intact for him.  The bank would not be required to obtain an indemnity for costs from the 9 siblings and would be directed to defend and counterclaim and, subject to any order that the trial judge may make, should be indemnified out of the estate for all costs for which it was liable in the action even if the defence and counterclaim failed. 

41.In the Yung Shu Wu case, the estate was governed by a will.  The question was whether or not money in certain bank accounts was beneficially owned by the testator as opposed to his wife so that he could validly dispose of it to his children.  The Court of Final Appeal upheld the Court of Appeal’s decision that the money fell within the estate.  On the question of costs of the executor, it was held that normally the costs should first be paid out of any part of the estate not disposed of by the will, and secondly out of the residuary estate.  If there was a partial intestacy as to some assets, those assets should be resorted to first for payment of costs.  If there were no such assets, then there should be resort to the subject money.  One of the beneficiaries had taken no part in the proceedings and the New York assets given to her were the one item over which there had been no dispute at any stage. They should be the last part of the estate to be resorted to.  It was clear that the estate in that case was solvent.

42.Here in this case was an intestacy. I have declared the property as not falling within the Father’s estate.  Accordingly, in my view, resort should be to what is within the estate, i.e. the bank savings, for costs.   I do not accept the administrator’s submission that since the wife had not taken part in the litigation, costs should not be paid out of the cash (which most certainly will go entirely to her having regard to her rights as a spouse).  It would be most unjust as the wife would have stood to gain from the litigation with no risk as to costs whilst the daughter would have to bear costs even if she won.

43.If the cash was exhausted, the property cannot be resorted to for payment of costs.  This ruling should apply not only to the costs of the litigation but also to the costs of the administration.  I see no injustice to the administrator because the Father’s estate would likely have been solvent to cover his costs had he not embarked on litigation in this manner.  As for administration of the estate of the Uncle, although the property once formed part of the Uncle’s estate to be administered the claim by the 5^th Uncle had been settled. In any case, if mediation had been done earlier, the 5^th uncle claim would have created little costs.

D. WHETHER THE ADMINISTRATOR’S COSTS SHOULD HAVE PRIORITY OVER THE DAUGHTER’S COSTS

44.Given my rulings above, the question of priority is not strictly necessary and I deal with it for completeness’ sake.  Mr Yeung submits that costs of the administrator has no priority but should rank pari passu with other creditors, like the daughter.

45.I disagree.  The proper position has been stated as follows:

“After the costs of a representative are satisfied the next claim on the estate is that of the claimant in the action for his costs incurred in it if allowed out of the estate. … The representative’s right of retainer for his own debt prevailed against the claimant’s right to his costs.”

Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19th ed) at para 66-21.

46.The costs of administration (and any costs of litigation, if granted to the administrator) should have priority over the costs of the daughter. 

OTHER DIRECTIONS

47.The daughter has agreed to provide, within 21 days from the hearing, an affirmation as to the assets of the father in her possession. 

48.The parties are agreed that there should be a stay of the order under paragraph 95 of my judgment (that the administrator should execute a conveyance of the property in favour of the daughter) pending settlement of the costs. Having read this decision and subject to administration, the parties are  at liberty to apply to uplift the stay or for further directions.

49.Costs of this application will be treated in the same way as costs for the litigation.  I make no order as to costs of the administrator.  Costs of the daughter are assessed at $30,000 (being $20,000 for counsel and $10,000 for the solicitor) to be paid out of the estate.

CONCLUSION

50.I answer the 4 issues posed under paragraph 1 as follows:

A. The daughter should be entitled to her full costs even though she had lost on one head of claim and failed on some legal arguments on the claim for the property. I assess her costs at $590,333 in total.

B. The administrator’s own costs should not be borne out of the estate because there was no Beddoe order. Even if the administrator had 50% chance of resisting the counterclaim of the daughter, his use of the Order 113 procedure was doomed to failure from the start. There was no attempt to consider letting the 3 known beneficiaries litigate amongst themselves whilst the administrator maintained a neutral position. There was no attempt to estimate the costs of the claim/defence to counterclaim. The costs were likely to have consumed the bulk of the estate. A judge would not have granted a Beddoe order and might have directed the beneficiaries to litigate amongst themselves.

C. The property should not be regarded as part of the estate for the purpose of settling costs. Resort should be made to the bank savings for costs. The same applies to costs of administration.

D. The costs of administration and administrator’s own costs under item B should have priority over the daughter’s costs.

An order is made accordingly.

51.I have ordered at the hearing that:

(i) The daughter do provide, within 21 days from the hearing, an affirmation as to the assets of the father in her possession.

(ii) There shall be a stay of the order under paragraph 95 of my judgment (that the administrator should execute a conveyance of the Property in favour of the Daughter) pending settlement of the costs. The parties are at liberty to apply to uplift the stay or for further directions.

52.Costs of this application will be treated in the same way as costs for the litigation.  I make no order as to costs of the administrator.  Costs of the daughter are assessed at $30,000 (being $20,000 for counsel and $10,000 for the solicitor) to be paid out of the estate.

53.I thank Mr Leung and Mr Yeung for their very thorough legal arguments and assistance given to the Court.

Mr Adrian Leung instructed by Messrs. Edward C T Wong & Co., for the Plaintiff

Mr Yeung Ming Tai instructed by Messrs. Foo, Leung & Yeung, for the 1^st Defendant