Tam Mei Kam v. Hsbc International Trustee Ltd and Others

HCMP 2981/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2981 OF 2004

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D E C I S I O N

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1.This is the applicant, Madam Tam’s application for leave to appeal against my decision dated 15 January 2015. My decision was on her application for special maintenance for the Lunar New Year of 2015.

Jurisdiction to grant leave

2.I made a similar decision dated 15 May 2014 dismissing Madam Tam’s application for special maintenance of a lump sum to purchase a vehicle with wheelchair elevation mechanism and monthly payments for chauffeur and nursing services.  She applied for leave to appeal against that decision.  I in my decision of 23 May 2014 did not consider that she needed leave before she could appeal.  I said in paras 11 to 13 of that decision:

“The applicable legal principle

11. This application for leave is made under section 14AA(1) and (4) of the High Court Ordinance, Cap 4 and O 59 r 2B of the Rules of the High Court. Sections 14AA(1) and (4) of the Ordinance provide:

‘(1) Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by Court of First Instance or the Court of Appeal.

(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.’

The application is made under both section 14AA(4)(a) and (b).

12. It has been explained in the case of SMSE v KL [2009] 4 HKLRD 125 at para 17 per Le Pichon, JA that ‘reasonable’ means more than fanciful but without having to be probable.

Analyses and decisions

13.   The first matter to decide is whether the application for payment is an interlocutory order within section 14AA(1) of the Ordinance and thus leave to appeal is required under section 14AA(4).  O 59 r 21(1)(a) of the Rules of the High Court provides that section 14AA(1) does not apply to ‘a judgment or order determining in a summary way the substantive rights of a party to an action’.  The order I made on 15 April 2014 refusing the applicant’s application for payment of extra maintenance of over HK$1,000,000 is a summary determination of her substantive rights to claim such maintenance on the ground of her mobility being impaired by injury.  I am of the view that it is an order within O 59 r 21(1)(a) and no leave is required for appeal.”

3.Madam Tam in her written submissions for this application said that her summons for special maintenance was made pursuant to section 8(2)(b) of the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481(“the Inheritance  Ordinance”) for ancillary relief.  She submitted that an order made thereof must be interlocutory in nature.  Hence, section 14AA(1) of the High Court Ordinance applies and leave is required for appeal. 

4.Section 8 of the Inheritance Ordinance gives the court the power to vary or discharge a maintenance order made under section 4 of the said Ordinance.  Sections 4(1), 8(1) and (2)(b) of the said Ordinance provide as follows:

“4. (1) Where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders-

(a) an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order;

…

8. (1) Where the court has made an order under section 4(1)(a) (in this section referred to as ‘the original order’ (原有命令)) for the making of periodical payments to any person (in this section referred to as ‘the original recipient’ (原收受人)), the court, on an application under this section, shall have power by order to vary or discharge the original order or to suspend any provision of it temporarily and to revive the operation of any provision so suspended.

(2) Without prejudice to the generality of subsection (1), an order made on an application for the variation of the original order may-

…

(b) provide for the payment out of any relevant property of a lump sum of such amount as may be so specified to the original recipient or to any such person as is mentioned in paragraph (a);”

5.Madam Tam further submitted that the sole question is whether leave can be exempted for the present application under RHC, O 59 r 21(1)(a) which provides exemption for a judgment or order determining in a summary way to substantive rights of a party to an action.  She relied on the decisions of Total Lubricants Hong Kong Ltd. and Ors v Christophe De La Cropte De Chanterac and Ors [2012] 5 HKLRD 59 (paras 26, 34, 35 and 37) and Fok Hing (HK) Trading Ltd. & Anr v Gunawan-Indra, trading as Bumipala Dhanadwipa, CACV No. 74/2014 dated 4 July 2014 (paras 17 to 23).

6.However, I still hold the same view that my decision has determined Madam Tam’s application for special maintenance in a summary way.  I therefore cannot grant leave as leave is not required to appeal. 

Merits

7.In case I am wrong in holding that I have no jurisdiction to grant leave, I would also consider the merits of this application. Madam Tam submitted that the primary reason for my dismissing the bulk of her special maintenance claim was because she had not followed my earlier orders to tighten her expenses including rent, tonic food and acupuncture and there was no medical evidence substantiating her special needs.

8.She further said that those issues were not factors that could be regarded as dishonest or improper and could not be taken into consideration under section 5(1)(g) of the Inheritance Ordinance.

9.She further submitted that I had failed to apply my mind to the factors in sections 5(1) and (3) of the Inheritance Ordinance.  Sections 3(1) and (2), and 5(1) and (3) of the said Ordinance provide as follows:

“3. (1) Where after the commencement of this Ordinance a person dies-

(a) domiciled in Hong Kong; or

(b) having been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death,

and is survived by any of the following persons-

(i) …;

(ii) …;

(iii) …;

(iv) a parent of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;

(v) …,

that person may apply to the court for an order under section 4 on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

(2) In this Ordinance, "reasonable financial provision" (合理經濟給養)-

(a) in the case of any application made-

(i) by virtue of subsection (1)(i) …; or

(ii) by virtue of subsection (1)(iii)…;

(b) in the case of any other application made by virtue of subsection (1), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

5. (1) Where an application is made for an order under section 4, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters-

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 4 has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

…

(3) Without prejudice to the generality of paragraph (g) of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(iv), the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the age of the applicant and the contribution (if any) in money or money's worth made by the deceased towards the needs of the applicant immediately before the death of the deceased.”

10.Madam Tam further submitted that the estate of her daughter, Madam Mui Yim Fong has tremendous value and she is the key beneficiary whilst the interests of the other beneficiaries are comparatively insignificant.  She will be 92 years old in two months and this is a relevant factor that should be taken into consideration under section 5(3) of the said Ordinance.  She also submitted that she is in the best position to tell what herbs, Chinese medicine and acupuncture she needed so as not to feel unwell from time to time.  Furthermore, she said that I should not insist on medical evidence in the light of her age.

11.Regarding the rental she needed, she said she did not follow my order to rent a small flat of rental at HK$20,000 per month because of a friend had volunteered to pay rent of HK$43,000 per month for a bigger flat for her.  Now that the friend cannot afford the money, if I do not allow her a larger rental maintenance, I will be punishing her and turning a blind eye to the hardship and disaster that she may face.

Decision on merits

12.I must make it abundantly clear that the decision on Madam Tam’s application for special maintenance for the Lunar New Year of 2015 was not to punish her for her failure to tighten her expenses.  It is just that if she has incurred a greater liability than her available resources can cover, then that is not a matter I can assist.  I can only allow her as much maintenance as the law permits.  I did not dismiss any item of her claim because of her misconduct, if any.  I only dismissed the items because they were not justifiable in law.

13.Regarding the amount of maintenance ordered in her favour, the amount was HK$152,000 per month up to December 2014 and has been increased to HK$158,000 per month from January 2015 onwards.

14.These sums are surely reasonable financial provisions for her under section 3 of the Inheritance Ordinance and reflect due consideration of all the factors in section 5 of this Ordinance including the size and nature of Madam Mui’s estate and the interests of the other beneficiaries of the estate.  However, Madam Tam was only given HK$48,000 out of the sum of HK$152,000 and will be given HK$50,000 out of the sum of HK$158,000.  The reason being that there is an income payments order that I made on 21 February 2014 under to section 43E of the Bankruptcy Ordinance, Cap 6.

15.Section 43E(1) and (2) provide:

“(1) The court may, on the application of the trustee, make an order (an income payments order) claiming for the bankrupt’s estate so much of the income of the bankrupt during the period for which the order is in force as may be specified in the order.

(2) The court shall not make an income payments order the effect of which would be to reduce the income of the bankrupt below what appears to the court to be necessary for meeting the reasonable domestic needs of the bankrupt and his family.” (emphasis supplied)

Hence, the HK$48,000 that Madam Tam was paid per month, which will be increased to HK$50,000 per month from January 2015, is not the amount of maintenance that she is entitled to under section 4 of the Inheritance Ordinance, but is to cover her reasonable domestic needs under section 43(E)(2) of the Bankruptcy Ordinance. 

16.I dismissed the items of her claim for tonic food and acupuncture because my previous order already provided HK$3,000 per month for such purposes.  I cannot rely on her words and not medical evidence to entertain the extra amounts for these items.  She has failed to bring the extra amounts to within the scope of her reasonable domestic needs under section 43E(2) of the Bankruptcy Ordinance. 

17.Regarding her rental claim, I have already provided for her HK$20,000 per month.  If she had any friend who was willing to provide her with free accommodation, then she must advise the court and her trustees of bankruptcy so that the provision for rental can be taken out of her monthly payments and be paid to her estate.  She should also secure an arrangement that would ensure full and prompt payment by her friend of the amounts due under the tenancy before accepting the offer of free accommodation.  The court cannot increase the amount of rental when the offer of rental from her friend lapsed.  Otherwise, the court would be forced to order an amount of maintenance beyond Madam Tam’s reasonable domestic needs and that is contrary to the law.  Therefore, I cannot entertain her request for additional sums to defray the rental at HK$43,000 per month.

Order

18.Since Madam Tam’s grounds of appeal are not addressed to these issues, she has failed to show a reasonable prospect of success.  Furthermore, she has failed to demonstrate any other reason in the interests of justice that her appeal should be heard.  In the premises, I dismiss her application for leave to appeal.

19.I also make a costs order nisi that Madam Tam do pay the 1st, 3rd, 4th and 5th respondents the costs of this application with the costs of the 3rd and 4th respondents summarily assessed at HK$2,000 and HK$2,400 respectively.

The applicant appeared in person

The 1st, 3rd, 4th and 5th respondents, excused from attendance