LEE CHARLES v. LEE YAN CHUN AND OTHERS

LEE CHARLES v. LEE YAN CHUN AND OTHERS

The court held that the defendants (D1–D3), sued as executors and trustees, had acted unreasonably in opposing the amendment and had not sought Re Beddoe protection; therefore the costs of opposing the amendment and the hearing on 23 September 2008 (and the costs of the subsequent hearing) were not properly incurred on the estate and must be paid personally by D1–D3. The existing order nisi was otherwise not varied except as to specified items and carve-outs concerning costs incurred after 6 March 2008.

Citation
LEE CHARLES v. LEE YAN CHUN AND OTHERS
Parties
Plaintiff (beneficiary): Plaintiff; 1st Defendant; Executor and Trustee: 1st Defendant (D1); 2nd Defendant; Executor and Trustee: 2nd Defendant (D2); 3rd Defendant; Executor and Trustee: 3rd Defendant (D3); Estate (deceased): Estate of Lee Da Kor
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 April 2009
Case Number
HCMP1709/2007
Procedural Posture
Probate/trusts Dispute Under Probate and Administration Ordinance and Rules of the High Court / Application to Vary Costs Order Nisi; Decision on Costs After Judgment on Amendment to Originating Summons
Outcome
Application to vary order nisi partially granted and partially refused: the court refused to permit certain costs to be paid out of the estate and ordered specified costs to be paid personally by D1–D3; other parts of the order nisi remain unchanged.
Legal Topics
Costs Order, Re Beddoe Principle, Amendment to Originating Summons, Service Out of Jurisdiction, Trustee Indemnity
Source Language
EN
Trusts and Trustees Probate Civil Procedure Costs Costs Order Re Beddoe Principle Amendment to Originating Summons Service Out of Jurisdiction +1 more

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Parties

Plaintiff

Plaintiff (beneficiary)

1st Defendant (D1)

1st Defendant; Executor and Trustee

2nd Defendant (D2)

2nd Defendant; Executor and Trustee

3rd Defendant (D3)

3rd Defendant; Executor and Trustee

Estate of Lee Da Kor

Estate (deceased)

Procedural Posture

Probate/trusts Dispute Under Probate and Administration Ordinance and Rules of the High Court / Application to Vary Costs Order Nisi; Decision on Costs After Judgment on Amendment to Originating Summons

Legal Issues

  1. 1 Whether costs of the amendment application and related hearings should be paid out of the estate or personally by the defendants (trustees)
  2. 2 Whether the costs order nisi should be varied
  3. 3 Whether trustees who defend without a Re Beddoe order can recover costs from the estate

Ratio Decidendi

The court held that the defendants (D1–D3), sued as executors and trustees, had acted unreasonably in opposing the amendment and had not sought Re Beddoe protection; therefore the costs of opposing the amendment and the hearing on 23 September 2008 (and the costs of the subsequent hearing) were not properly incurred on the estate and must be paid personally by D1–D3. The existing order nisi was otherwise not varied except as to specified items and carve-outs concerning costs incurred after 6 March 2008.

Court Disposition

Application to vary order nisi partially granted and partially refused: the court refused to permit certain costs to be paid out of the estate and ordered specified costs to be paid personally by D1–D3; other parts of the order nisi remain unchanged.

Orders

  • The costs of and occasioned by the amendment to the originating summons shall be paid by the plaintiff to D1, D2 and D3 in any event save that the costs of the plaintiff incurred after 6 March 2008 shall be paid by D1, D2 and D3 to the plaintiff in any event personally and not out of the estate.
  • The costs of the summons dated 23 July 2008 are to be paid by the plaintiff to D1, D2 and D3 in any event.