TANG KA HUNG ROBERT AND ANOTHER v. TANG TIM CHUE alias TANG TIM CHU

TANG KA HUNG ROBERT AND ANOTHER v. TANG TIM CHUE alias TANG TIM CHU

The Defence and Counterclaim were struck out as an abuse of process because they raised no issues affecting the validity of the will or entitlement to probate; costs follow the event so plaintiffs are entitled to costs of the caveat proceedings and probate action, but section 16C of the Legal Aid Ordinance means the defendant is personally liable only for costs incurred prior to the grant of the Legal Aid Certificate and the Director is responsible for costs occasioned by the counterclaim; section 17(3) is an exceptional remedy requiring impropriety by the aided person, and where the aided person acted on legal advice the court will not normally exercise its discretion to impose personal...

Citation
TANG KA HUNG ROBERT AND ANOTHER v. TANG TIM CHUE alias TANG TIM CHU
Parties
Plaintiff Executor: 1st Plaintiff (executor of Tang Sum On, deceased); Plaintiff Executor: 2nd Plaintiff (executor of Tang Sum On, deceased); Defendant Son and Half‑brother of Plaintiffs: Defendant (son of Tang Sum On)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 September 2007
Case Number
HCAP7/2006
Procedural Posture
Probate Action (caveat and Grant of Probate) / Chambers Hearing on Striking Out Application and Costs (application to Strike Out Defence and Counterclaim; Application Under S17(3) Legal Aid Ordinance)
Outcome
Defence and Counterclaim struck out; counterclaim dismissed; judgment for plaintiffs; costs ordered as specified with refusal to make order under s17(3) imposing personal liability for costs after Legal Aid Certificate
Legal Topics
Caveat Proceedings, Grant of Probate, Striking Out Pleadings, Legal Aid Ordinance S16 C, Legal Aid Ordinance S17(3), Abuse of Process, Executors' Duties
Source Language
EN
Probate Civil Procedure Costs Legal Aid Caveat Proceedings Grant of Probate Striking Out Pleadings Legal Aid Ordinance S16 C +3 more

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Parties

1st Plaintiff (executor of Tang Sum On, deceased)

Plaintiff Executor

2nd Plaintiff (executor of Tang Sum On, deceased)

Plaintiff Executor

Defendant (son of Tang Sum On)

Defendant Son and Half‑brother of Plaintiffs

Procedural Posture

Probate Action (caveat and Grant of Probate) / Chambers Hearing on Striking Out Application and Costs (application to Strike Out Defence and Counterclaim; Application Under S17(3) Legal Aid Ordinance)

Legal Issues

  1. 1 Whether the Defence and Counterclaim are irrelevant to the probate issue and should be struck out as an abuse of process
  2. 2 Whether the defendant is personally liable for costs incurred after the grant of the Legal Aid Certificate under section 17(3) of the Legal Aid Ordinance
  3. 3 How section 16C of the Legal Aid Ordinance affects recovery and enforcement of costs against an aided person and the Director of Legal Aid

Ratio Decidendi

The Defence and Counterclaim were struck out as an abuse of process because they raised no issues affecting the validity of the will or entitlement to probate; costs follow the event so plaintiffs are entitled to costs of the caveat proceedings and probate action, but section 16C of the Legal Aid Ordinance means the defendant is personally liable only for costs incurred prior to the grant of the Legal Aid Certificate and the Director is responsible for costs occasioned by the counterclaim; section 17(3) is an exceptional remedy requiring impropriety by the aided person, and where the aided person acted on legal advice the court will not normally exercise its discretion to impose personal...

Court Disposition

Defence and Counterclaim struck out; counterclaim dismissed; judgment for plaintiffs; costs ordered as specified with refusal to make order under s17(3) imposing personal liability for costs after Legal Aid Certificate

Orders

  • The Defence and Counterclaim are struck out.
  • The counter-claim is dismissed.