YU WING CHEONG alias YU JOSEPH WING CHEONG, Executor substituted named in the Will of YAU SIN WAH alias YAU KAM LAN (“Deceased”) AND ANOTHER v. YU WING YIN

YU WING CHEONG alias YU JOSEPH WING CHEONG, Executor substituted named in the Will of YAU SIN WAH alias YAU KAM LAN (“Deceased”) AND ANOTHER v. YU WING YIN

The consent Stay of Execution related only to the then‑pending Court of Appeal appeal and lapsed on dismissal of that appeal on 19 January 2022; therefore it was irrelevant to the ex parte leave application in January 2023 and non‑disclosure of a lapsed order was not material; Tse's affirmation was factually correct in context; the statutory notice requirements under HKCP §45/3/3 were satisfied; accordingly the Writ of Possession was validly obtained and the Defendant's appeal to set it aside failed.

Citation
[2023] HKCFI 2098
Parties
1st Plaintiff; Executor (substituted): YU WING CHEONG; 2nd Plaintiff; Executor (substituted): YU WING KIT; Defendant; Respondent in Possession of Property: YU WING YIN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 August 2023
Case Number
HCMP2089/2017
Procedural Posture
Civil: Probate/possession (writ of Possession Arising From Estate Administration) / Appeal From Master to Deputy High Court Judge in Chambers (rehearing of Application)
Outcome
Defendant's appeal dismissed
Legal Topics
Writ of Possession, Stay of Execution, Ex Parte Application and Disclosure, Notice Requirements for Possession, Costs — Indemnity
Source Language
EN
Civil Procedure Probate Property Writ of Possession Stay of Execution Ex Parte Application and Disclosure Notice Requirements for Possession Costs — Indemnity

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Parties

YU WING CHEONG

1st Plaintiff; Executor (substituted)

YU WING KIT

2nd Plaintiff; Executor (substituted)

YU WING YIN

Defendant; Respondent in Possession of Property

Procedural Posture

Civil: Probate/possession (writ of Possession Arising From Estate Administration) / Appeal From Master to Deputy High Court Judge in Chambers (rehearing of Application)

Legal Issues

  1. 1 Whether an earlier consent Stay of Execution Order continued to operate after dismissal of the Court of Appeal appeal and pending any CFA leave application
  2. 2 Whether plaintiffs committed material non‑disclosure or misrepresentation in ex parte application by failing to disclose the lapsed Stay of Execution Order or by a statement in affirmation
  3. 3 Whether the Notice of Proceedings complied with HKCP §45/3/3 and whether timeline for vacatur was legally defective

Ratio Decidendi

The consent Stay of Execution related only to the then‑pending Court of Appeal appeal and lapsed on dismissal of that appeal on 19 January 2022; therefore it was irrelevant to the ex parte leave application in January 2023 and non‑disclosure of a lapsed order was not material; Tse's affirmation was factually correct in context; the statutory notice requirements under HKCP §45/3/3 were satisfied; accordingly the Writ of Possession was validly obtained and the Defendant's appeal to set it aside failed.

Court Disposition

Defendant's appeal dismissed

Orders

  • Defendant's Appeal dismissed
  • Writ of Possession to stand