LAI HOI YEE v. AN CHI PUN, the Personal Representative of the estate of KWAN SUI LIN, Deceased

HCA 557/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 557 OF 2014 ________________________ BETWEEN KWAN CHI PUN in his personal capacity and the executor of the estate of Kwan Sui Lin, deceased Plaintiff and LAI HOI YEE 1st Defendant LAI KAM MING 2nd Defendant HCMP 2078/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2078 OF 2015 (TRANSFERRED FROM FCMP 225 OF 2012) ___________________ IN THE MATTER OF the estate of KWAN SUI LIN, Deceased, late of Flat B, 1/F, Block 8, Chevalier Garden, No. 2, Hang Shun Street, Shatin, New Territories. and IN THE MATTER OF Section 4 of the Inheritance (Provision for Family and Dependence) Ordinance, Cap. 481. __________________ BETWEEN LAI HOI YEE Applicant and KWAN CHI PUN, the Personal Representative of the estate of KWAN SUI LIN, Deceased Respondent ________________________ Before: Hon Anthony Chan J in Chambers Dates of Hearing: 3 October 2016 Date of Decision: 3 October 2016 _______________ D E C I S I O N _______________ This is an application by Hoi Yee and Lai to vary the costs order nisi made in the Judgment in these actions dated 5 August 2016. It is contended by them that there should be no order as to costs. I am unable to accede to this application for the following reasons : These are not probate action (the Will was never disputed), and I do not believe that the principles applied to a testamentary suit (see Mitchell v Gard 164 ER 1280), which are heavily relied upon by Hoi Yee and Lai, should be applied in this case. I note the observation made by Briggs J in Pearson v Lehman Brothers Finance SA [2010] EWHC 3044 (Ch), para 13. I take into account the observation of Ormrod J made in Re Fullard (deceased) [1981] 2 All ER 796 at 799b-c concerning a small estate. The Estate is not substantial and the unfairness of depriving Kwan, who has lost his earning capacity, of the costs of the trial cannot be ignored. I agree with Mr Wong, appearing for Kwan, that Hoi Yee and Lai had a weak case in HCA 557/2014, which they pursued with full knowledge of the Will. It is said that the circumstances under which the Will was made are suspicious. However, one must not overlook the fact that the Will was made with the help of HAL and the Mother had ample opportunity to make a fresh will if she wanted to do so. As regards HCMP 2078/2015, the request that the Property be transferred to Hoi Yee was unrealistic. I do not agree that there was any conduct on Kwan’s part which justifies depriving him of the costs of these actions. On the contrary, he made on open offer to Hoi Yee before the trial started. That offer was improved upon. Yet the actions proceeded to the end. I should not overlook the fact that the trial of these actions involved Lai speaking ill of his ex-wife, who was unable to defend the allegations. That was specifically brought to the attention of the parties at the start of the trial. In the premises, this application is dismissed with costs to Kwan. (Anthony Chan) Judge of the Court of First Instance High Court Mr Paul Wong, instructed by Ford, Kwan & Co, for the plaintiff in HCA 557/2014 and the respondent in HCMP 2078/2015 Ms Sezen Chong, instructed by Fung & Fung, for the defendants in HCA 557/2014 and the applicant in HCMP 2078/2015