TYM AND OTHERS v. WSP, THE INTENDED EXECUTRIX OF THE ESTATE OF LM, DECEASED AND ANOTHER

TYM AND OTHERS v. WSP, THE INTENDED EXECUTRIX OF THE ESTATE OF LM, DECEASED AND ANOTHER

Applicants failed to prove on the civil standard that the Deceased's estate (through the 1st Respondent as intended executrix) had the means to make full payment of the ordered monthly periodical payments; the Profit and Loss Statements produced were accepted as demonstrating insufficient means and thus there was no culpable contempt. On that basis and because there was no impediment to the course of justice and debarment would be disproportionate, the court dismissed the Hadkinson application and refused to exercise its discretion to debar the 1st Respondent.

Citation
TYM AND OTHERS v. WSP, THE INTENDED EXECUTRIX OF THE ESTATE OF LM, DECEASED AND ANOTHER
Parties
1st Applicant: TYM; 2nd Applicant: LKY; 3rd Applicant (by Next Friend Tym): LKM (an infant); 1st Respondent (intended Executrix of the Estate of LM Deceased): WSP; 2nd Respondent: KO Trading Limited
Court
Family Court
Jurisdiction
Hong Kong
Judgment Date
19 October 2016
Case Number
FCMP309/2014
Procedural Posture
Proceedings Under Inheritance (provision for Family and Dependants) Ordinance, Cap 481 (interim Maintenance and Hadkinson Application) / Substantive Hearing of Summonses (application for Hadkinson Order; Interim Maintenance Enforcement)
Outcome
Applicants' summonses dated 20 April 2016 and 27 September 2016 dismissed; Hadkinson order refused; costs ordered against Applicants (order nisi).
Legal Topics
Hadkinson Order, Interim Maintenance, Contempt for Non Payment, Access to Court, Variation of Maintenance, Enforcement of Court Orders
Source Language
EN
Family Law Civil Procedure Contempt of Court Probate/estate Constitutional Law Hadkinson Order Interim Maintenance Contempt for Non Payment +3 more

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Parties

TYM

1st Applicant

LKY

2nd Applicant

LKM (an infant)

3rd Applicant (by Next Friend Tym)

WSP

1st Respondent (intended Executrix of the Estate of LM Deceased)

KO Trading Limited

2nd Respondent

Procedural Posture

Proceedings Under Inheritance (provision for Family and Dependants) Ordinance, Cap 481 (interim Maintenance and Hadkinson Application) / Substantive Hearing of Summonses (application for Hadkinson Order; Interim Maintenance Enforcement)

Legal Issues

  1. 1 Whether a Hadkinson order should be made to debar the 1st Respondent from being heard for failure to comply with interim maintenance order
  2. 2 Whether non-payment alone establishes contempt or whether mens rea/ability to pay must be proved
  3. 3 Whether the Deceased's estate (through the 1st Respondent as intended executrix) had means to make the ordered payments

Ratio Decidendi

Applicants failed to prove on the civil standard that the Deceased's estate (through the 1st Respondent as intended executrix) had the means to make full payment of the ordered monthly periodical payments; the Profit and Loss Statements produced were accepted as demonstrating insufficient means and thus there was no culpable contempt. On that basis and because there was no impediment to the course of justice and debarment would be disproportionate, the court dismissed the Hadkinson application and refused to exercise its discretion to debar the 1st Respondent.

Court Disposition

Applicants' summonses dated 20 April 2016 and 27 September 2016 dismissed; Hadkinson order refused; costs ordered against Applicants (order nisi).

Orders

  • The summons dated 20 April 2016 and the summons dated 27 September 2016 are dismissed.
  • Ordered nisi that the Applicants shall pay the 1st Respondent's costs of the two summonses, including reserved costs, with certificate for Counsel's attendance.