AU LICK HANG LEDWIN AND ANOTHER v. AU SUK HAN AND ANOTHER

AU LICK HANG LEDWIN AND ANOTHER v. AU SUK HAN AND ANOTHER

An inter partes summons under s7(1) was appropriate in the factual matrix and was not precluded by the availability of an ex parte s7(3) registrar subpoena; the Firm was entitled before the summons to decline to release the original will to one competing beneficiary but, once served, could not insist on withdrawal of the summons; the Firm’s conduct did not justify indemnity costs so costs of the summons were ordered to the plaintiffs on a party-and-party basis with specified apportionment and a nisi order for hearing costs (50% to plaintiffs).

Citation
[2021] HKCFI 21
Parties
1st Plaintiff: AU LICK HANG LEDWIN; 2nd Plaintiff: AU CIN HANG CYNTHIA; 1st Defendant: AU SUK HAN; 2nd Defendant: AU MING CHUNG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 January 2021
Case Number
HCMP250/2019
Procedural Posture
Probate and Administration (application Under Section 7 Probate and Administration Ordinance) / Costs Hearing / Decision on Costs After Interlocutory Summons for Production of Will
Outcome
Costs order in favour of plaintiffs on party-and-party basis with specific apportionment; indemnity costs refused; nisi order for hearing costs
Legal Topics
Production of Will, Section 7 Probate and Administration Ordinance, Rule 49 Non Contentious Probate Rules, Summons Vs Ex Parte Registrar Subpoena, Costs Orders and Indemnity Vs Party and Party
Source Language
EN
Probate Civil Procedure Costs Production of Will Section 7 Probate and Administration Ordinance Rule 49 Non Contentious Probate Rules Summons Vs Ex Parte Registrar Subpoena Costs Orders and Indemnity Vs Party and Party

Case Brief

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Parties

AU LICK HANG LEDWIN

1st Plaintiff

AU CIN HANG CYNTHIA

2nd Plaintiff

AU SUK HAN

1st Defendant

AU MING CHUNG

2nd Defendant

Procedural Posture

Probate and Administration (application Under Section 7 Probate and Administration Ordinance) / Costs Hearing / Decision on Costs After Interlocutory Summons for Production of Will

Legal Issues

  1. 1 Whether the firm was entitled to refuse to release the original 1994 will to the plaintiffs before and after the summons
  2. 2 Whether applicants were required to proceed ex parte under s7(3) PAO or could proceed inter partes under s7(1)
  3. 3 Whether the firm's post-summons conduct warranted indemnity costs in favour of the plaintiffs

Ratio Decidendi

An inter partes summons under s7(1) was appropriate in the factual matrix and was not precluded by the availability of an ex parte s7(3) registrar subpoena; the Firm was entitled before the summons to decline to release the original will to one competing beneficiary but, once served, could not insist on withdrawal of the summons; the Firm’s conduct did not justify indemnity costs so costs of the summons were ordered to the plaintiffs on a party-and-party basis with specified apportionment and a nisi order for hearing costs (50% to plaintiffs).

Court Disposition

Costs order in favour of plaintiffs on party-and-party basis with specific apportionment; indemnity costs refused; nisi order for hearing costs

Orders

  • The costs of and incidental to the Summons, down to the perusal of the same and the affidavit evidence in support, be to the Firm.
  • The costs of and incidental to the Summons thereafter, be to the plaintiffs.