WONG TAT LUN EDDIE AND OTHERS v. WONG CHI HO JIMMY AND OTHERS

WONG TAT LUN EDDIE AND OTHERS v. WONG CHI HO JIMMY AND OTHERS

Although the plaintiffs failed to remove the executor, they obtained substantial remedial disclosure by D1 up to D1's 2nd affirmation and it was not unreasonable to bring and continue the application; the continuation fell within Re Buckton's second class (administrative questions affecting the estate) so the court departed from the usual costs rule and ordered D1 to pay plaintiffs' costs up to D1's 2nd affirmation (party and party with two counsel certificate) and ordered that all parties' costs after that date, including the Leave Application, be paid out of the deceased's estate (solicitor and client taxed with two counsel certificate); no order as to costs for D2–D4.

Citation
WONG TAT LUN EDDIE AND OTHERS v. WONG CHI HO JIMMY AND OTHERS
Parties
1st Plaintiff: WONG TAT LUN EDDIE; 2nd Plaintiff: WONG OI LUN; 3rd Plaintiff: WONG TAI WAI DAVID JASPER; 1st Defendant: WONG CHI HO JIMMY (as the sole executor of the estate of Wong Chung Ming, deceased); 2nd Defendant: CHEUNG SIU FUNG; 3rd Defendant: The Personal Representative(s) of Chan Lau Kong, deceased; 4th Defendant: WONG MAN HA MONICA
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 February 2015
Case Number
HCMP2391/2013
Procedural Posture
Probate and Administration: Application to Remove Executor; Costs / Costs Decision Following Judgment Dismissing Removal Application
Outcome
Costs order made departing from usual rule: split costs allocation between pre- and post-2nd affirmation periods
Legal Topics
Removal of Executor, Costs Orders and Allocation, Beneficiaries' Rights to Information and Accounts, Fiduciary Duties of Executors, Application of Re Buckton Principles, Leave Application Procedure
Source Language
EN
Probate Trusts Estate Administration Civil Procedure Costs Law Removal of Executor Costs Orders and Allocation Beneficiaries' Rights to Information and Accounts +3 more

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Parties

WONG TAT LUN EDDIE

1st Plaintiff

WONG OI LUN

2nd Plaintiff

WONG TAI WAI DAVID JASPER

3rd Plaintiff

WONG CHI HO JIMMY (as the sole executor of the estate of Wong Chung Ming, deceased)

1st Defendant

CHEUNG SIU FUNG

2nd Defendant

The Personal Representative(s) of Chan Lau Kong, deceased

3rd Defendant

WONG MAN HA MONICA

4th Defendant

Procedural Posture

Probate and Administration: Application to Remove Executor; Costs / Costs Decision Following Judgment Dismissing Removal Application

Legal Issues

  1. 1 Whether the removal application against the executor was justified
  2. 2 Whether costs should follow the event or be paid out of the estate
  3. 3 Whether the beneficiaries' application falls within the second class in Re Buckton (necessary administration) or is hostile litigation

Ratio Decidendi

Although the plaintiffs failed to remove the executor, they obtained substantial remedial disclosure by D1 up to D1's 2nd affirmation and it was not unreasonable to bring and continue the application; the continuation fell within Re Buckton's second class (administrative questions affecting the estate) so the court departed from the usual costs rule and ordered D1 to pay plaintiffs' costs up to D1's 2nd affirmation (party and party with two counsel certificate) and ordered that all parties' costs after that date, including the Leave Application, be paid out of the deceased's estate (solicitor and client taxed with two counsel certificate); no order as to costs for D2–D4.

Court Disposition

Costs order made departing from usual rule: split costs allocation between pre- and post-2nd affirmation periods

Orders

  • 1) 1st Defendant to pay plaintiffs' costs up to 1st Defendant's 2nd affirmation, to be taxed on a party and party basis if not agreed, with certificate for two Counsel
  • 2) The costs of plaintiffs and 1st Defendant for the period after 1st Defendant's 2nd affirmation, including the costs of the Leave Application, shall be paid out of the deceased's estate, to be taxed on a solicitor and client basis if not agreed, with certificate for two Counsel