Ku Camey v. Ku Scarlet, The Executrix of the Estate of Chen Elsie , Deceased and Another

On 14 September 2026, the Court of Appeal (Au and Anthony Chan JJA) handed down judgment in Ku Camey v Ku Scarlet (executrix of the estate of Chen Elsie, deceased) CACV 561/2024, dismissing the plaintiff's summons for leave to file a respondent's notice out of time, but granting leave to adduce two post-judgment letters as fresh evidence on appeal. Mr Axis Yu, instructed by Iu, Lai & Li, acted for the successful 1st Defendant.

The underlying dispute concerns the estate of Madam Chen Elsie, who died on 21 August 2021. Camey, Scarlet and Miranda are her three daughters. Probate was granted to Scarlet in July 2022. Camey sued to remove Scarlet as executrix and, by a decision dated 25 November 2024, Tsui J granted summary judgment in Camey's favour, finding that Scarlet had failed to render a proper account with supporting documents and that there had been no proper administration of the estate ([63], [67]). Scarlet appealed. Earlier, by a Consent Summons filed in April 2025, the parties had agreed Camey could file an earlier respondent's notice out of time.

Camey subsequently took out the present summons seeking (a) to file a further respondent's notice out of time advancing four additional grounds, and (b) leave to rely on two letters dated 18 June 2025 and 9 July 2025 as fresh evidence. The Letters came into existence well after the Summary Judgment Decision and record Scarlet's solicitors' correspondence with the court-appointed administrator, including Scarlet's agreement to repay US$50,000 and HK$68,831.89 to the estate.

Holding

The Court held that:

(1) The respondent's notice should not be allowed out of time. The 11-month delay was significant and unexplained. Grounds (1) (hostile acts) and (2) (conflict of interest) had not been pleaded in the Re-Amended Statement of Claim, and the Summary Judgment below had proceeded on assumed facts in Scarlet's favour ([7]–[8]); the court on appeal would be in no better position to resolve disputed factual issues on affidavits. Ground (3) was poorly formulated and added nothing. Ground (4) was unnecessary because the Letters, once admitted, would fortify the Judge's existing finding.

(2) The Letters were admissible as fresh evidence. The court has a wide discretion under O 59 r 10(2) RHC to admit post-judgment evidence (Cheung Wing Kuen Samuel v Ip Chui Sum [2022] 3 HKLRD 709, [43]). The Letters were incontrovertible and might fortify the Judge's central finding of failure to render a proper account.

Paragraph 1 of the Summons was dismissed; paragraph 2 was allowed. Costs of paragraph 1 were summarily assessed at HK$80,000 to Scarlet.

For practitioners, three points follow. First, a respondent seeking to expand an earlier respondent's notice cannot rely on the appellant's consent to the earlier notice as a springboard; consent has to be specific to the further grounds. Second, post-judgment evidence that fortifies existing findings is readily admitted, but it cannot be deployed to introduce new grounds on appeal unless the court grants an extension to do so. Third, the court flagged its displeasure at four out of eight affirmations in the hearing bundles being substantive affirmations by solicitors containing inadmissible submissions, warning that inappropriate conduct by professionals may attract costs sanctions ([31]).