Re Loo Che Chin

HCCA 3131 of 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO 3131 OF 2011

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DECISION ON COSTS

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1.The court has considered the written submissions on costs lodged pursuant to the court’s direction.

2.I agree with the submission of Ms Wong, SC, for Janet, that in opposing her application for passing over, Clive was essentially vindicating his own personal interest rather than the interest of the estate. That being the case, the proceedings fell within the 3^rd category of cases (hostile claims by beneficiaries against the executors/trustees and other beneficiaries) as set out in Re Buckton [1907] 2 Ch 406 per Kekewich J at p 415, applied by me in Re Estate of Lee Da Kor [2010] 1 HKLRD 415 at para 39.  It should be treated in the same way as ordinary hostile litigation in which costs should follow the event and borne by the losing party and do not come out of the estate.  So in principle, Clive should bear Janet’s costs personally.  However, I do not think the mere fact that Clive had adopted a hostile stance warrants a higher basis of taxation other than the usual party and party basis.

3.Now, when Janet first instituted the proceedings in December 2011, she was seeking a guarantee to be provided by Clive.  Her application was then amended in June 2012 to include the passing over application.  The guarantee application still remained.  It was only at the first hearing on 13 November 2012 that Ms Wong first indicated to the court that the guarantee application was to be abandoned.  Having regard to the litigation history, I think Janet should not be entitled to the costs wasted as a result of the abandoned application for guarantee.  Adopting a global view, I think a 10% reduction is appropriate.

4.Finally, I agree with Mr Liang, for Clive, that the overall circumstances of this case, on balance, do not justify the engagement of two counsel.  However, I think the engagement of senior counsel, given the size of the estate and issues involved, is well justified.

5.For the above reasons, I order that Clive do pay Janet 90% of her costs of the proceedings, including all costs reserved and the costs of the written submissions on costs, with a certificate for senior counsel, to be taxed on a party and party basis if not agreed.

Ms Lisa Wong SC leading Mr Jose Maurellet, instructed by Oldham, Li   & Nie, for the Caveator

Mr Alfred Liang, instructed by Cheng Yeung & Co, for the person warning