FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS

FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS

Clause 49 does not extend to the Stay Applications because they were not steps taken to implement the Settlement Agreement; the Stay Applications were hostile litigation falling within the third Re Buckton category so costs follow the event; accordingly Ben and Nora, having opposed and lost and acted in defiance of the Settlement Agreement, must pay indemnity costs to the successful parties; Pat incurs no costs liability.

Citation
FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS
Parties
Plaintiff (in His Capacity as a Co Executor of the Estate of Fok Ying Tung Henry, Deceased and in His Personal Capacity): Fok Chun Yue Benjamin; 1st Defendant (in His Personal Capacity and as an Executor of the Estate of Fok Ying Tung Henry, Deceased): Fok Chun Wan Ian; 2nd Defendant (in Her Capacity as Co Executrix of the Estate of Fok Ying Tung Henry, Deceased): Fok Mo Kan; 3rd Defendant: Fok Lai Ping Patricia; 4th Defendant: Fok Tsun Ting Timothy; 5th Defendant: Fok Lai Lor Nora; 6th Defendant: Fok Lai Lai Lily; 7th Defendant: Fok Man Bun Nelson; 8th Defendant: Manson Fok; 9th Defendant: Fok Man Fong Thomas; 10th Defendant: Fok Hin Yeung David; 11th Defendant: Fok Hin Suen Donald; 12th Defendant: Fok Hin Kwong Danny; 13th Defendant: Fok Hin Keung Michael; 14th Defendant: Fok Lui Yin Nei; 15th Defendant: Fok Fung Kin Nei Elaine; 16th Defendant (personal Representative): Personal Representative of the Estate of Lam Sook Duen, deceased
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 June 2014
Case Number
HCA2155/2011
Procedural Posture
Civil Action (high Court, Court of First Instance) Action No 2155 of 2011 / Costs Decision on Stay Applications Following a Settlement and Stay Order (post Implementation Directions)
Outcome
Costs of the Stay Applications ordered against the unsuccessful opponents (Ben and Nora); Clause 49 held not to cover those costs; Pat no order as to costs; counsel certificates granted.
Legal Topics
Stay Applications, Costs Follow the Event, Indemnity Costs, Re Buckton Principles, Interpretation of Settlement Agreement Clause 49, Implementation Relief
Source Language
EN
Civil Procedure Trusts and Estates Costs Contract Interpretation Settlement Enforcement Stay Applications Costs Follow the Event Indemnity Costs +3 more

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Parties

Fok Chun Yue Benjamin

Plaintiff (in His Capacity as a Co Executor of the Estate of Fok Ying Tung Henry, Deceased and in His Personal Capacity)

Fok Chun Wan Ian

1st Defendant (in His Personal Capacity and as an Executor of the Estate of Fok Ying Tung Henry, Deceased)

Fok Mo Kan

2nd Defendant (in Her Capacity as Co Executrix of the Estate of Fok Ying Tung Henry, Deceased)

Fok Lai Ping Patricia

3rd Defendant

Fok Tsun Ting Timothy

4th Defendant

Fok Lai Lor Nora

5th Defendant

Fok Lai Lai Lily

6th Defendant

Fok Man Bun Nelson

7th Defendant

Manson Fok

8th Defendant

Fok Man Fong Thomas

9th Defendant

Fok Hin Yeung David

10th Defendant

Fok Hin Suen Donald

11th Defendant

Fok Hin Kwong Danny

12th Defendant

Fok Hin Keung Michael

13th Defendant

Fok Lui Yin Nei

14th Defendant

Fok Fung Kin Nei Elaine

15th Defendant

Personal Representative of the Estate of Lam Sook Duen, deceased

16th Defendant (personal Representative)

Procedural Posture

Civil Action (high Court, Court of First Instance) Action No 2155 of 2011 / Costs Decision on Stay Applications Following a Settlement and Stay Order (post Implementation Directions)

Legal Issues

  1. 1 Whether Clause 49 of the Settlement Agreement covers costs of the Stay Applications
  2. 2 Whether costs of the Stay Applications should follow the event under Re Buckton principles
  3. 3 Whether the plaintiff Ben should be liable for costs of proponents of the Stay Applications and their supporters

Ratio Decidendi

Clause 49 does not extend to the Stay Applications because they were not steps taken to implement the Settlement Agreement; the Stay Applications were hostile litigation falling within the third Re Buckton category so costs follow the event; accordingly Ben and Nora, having opposed and lost and acted in defiance of the Settlement Agreement, must pay indemnity costs to the successful parties; Pat incurs no costs liability.

Court Disposition

Costs of the Stay Applications ordered against the unsuccessful opponents (Ben and Nora); Clause 49 held not to cover those costs; Pat no order as to costs; counsel certificates granted.

Orders

  • Ben and Nora to pay jointly and severally Ian, the Aunt, the Mother and members of the 2nd and 3rd Families costs of the Stay Applications on an indemnity basis, to be taxed if not agreed
  • No order as to costs between Pat and all other parties