CHAN SIU MAN v. LAM JENNY AND OTHERS

CHAN SIU MAN v. LAM JENNY AND OTHERS

The claim under the Ordinance disclosed no reasonable cause of action that survived the applicant's death because the Ordinance only confers the right to apply (locus) and does not create an enforceable right to provision at the date of death; therefore the personal representative's application to carry on was unarguable and must be struck out (LARCO s20(1) does not preserve mere statutory application rights).

Citation
CHAN SIU MAN v. LAM JENNY AND OTHERS
Parties
Plaintiff (deceased): CHAN SIU MAN; 1st Defendants; Personal Representatives of the Estate of Lam Kam Wai (deceased): LAM JENNY and NORMAN CHUI PAK MING; 2nd Defendants (children of Lam Kam Wai): LAM JENNY; LAM KA KEI ANNIE; LAM KA LING CALINA; LAM KAI TAK PHILIP; 3rd Defendants: LAM KA WAI REBECCA; LAM KAI CHEUNG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 July 2012
Case Number
HCMP1282/2010
Procedural Posture
Application Under the Inheritance (provision for Family and Dependants) Ordinance, Cap 481 / Chambers Hearing on Application to Carry on Proceedings After Applicant's Death and Strike Out Application
Outcome
Application by Chan's personal representative to carry on proceedings refused; Chan's application under the Ordinance struck out
Legal Topics
Inheritance (provision for Family and Dependants) Ordinance, Survival of Causes of Action, Statutory Applications for Maintenance, Strike Out for Plain and Obvious No Cause of Action
Source Language
EN
Succession Family Law Civil Procedure Estate Litigation Inheritance (provision for Family and Dependants) Ordinance Survival of Causes of Action Statutory Applications for Maintenance Strike Out for Plain and Obvious No Cause of Action

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Parties

CHAN SIU MAN

Plaintiff (deceased)

LAM JENNY and NORMAN CHUI PAK MING

1st Defendants; Personal Representatives of the Estate of Lam Kam Wai (deceased)

LAM JENNY; LAM KA KEI ANNIE; LAM KA LING CALINA; LAM KAI TAK PHILIP

2nd Defendants (children of Lam Kam Wai)

LAM KA WAI REBECCA; LAM KAI CHEUNG

3rd Defendants

Procedural Posture

Application Under the Inheritance (provision for Family and Dependants) Ordinance, Cap 481 / Chambers Hearing on Application to Carry on Proceedings After Applicant's Death and Strike Out Application

Legal Issues

  1. 1 Whether an application for reasonable financial provision under the Ordinance constitutes a cause of action that survives the applicant's death
  2. 2 Whether the personal representative can continue the deceased applicant's s3 application under Order 15 r7
  3. 3 Interpretation of LARCO s20(1) in relation to statutory causes of action under the Ordinance

Ratio Decidendi

The claim under the Ordinance disclosed no reasonable cause of action that survived the applicant's death because the Ordinance only confers the right to apply (locus) and does not create an enforceable right to provision at the date of death; therefore the personal representative's application to carry on was unarguable and must be struck out (LARCO s20(1) does not preserve mere statutory application rights).

Court Disposition

Application by Chan's personal representative to carry on proceedings refused; Chan's application under the Ordinance struck out

Orders

  • Chan's application under the Inheritance (Provision for Family and Dependants) Ordinance struck out as disclosing no reasonable cause of action on her death
  • Application by Chan's estate for further time to file evidence dismissed with costs (including costs of 22 June 2012 hearing)