RE CK

RE CK

Given the complexity of the MIPs' assets and the antagonism between competing applicants, the Court must avoid turning Part II applications into a forum for private forensic disputes; detailed asset investigation should generally be left to a neutral professional committee, and costs unnecessarily incurred as a result of antagonistic conduct should not be borne fully by the MIPs' estates. Accordingly the estates will bear limited costs (filing/service and fixed lump sums and indemnity costs for OS/DSW) while specific costs arising from unnecessary conduct are to be paid by the responsible applicant and all costs are to be summarily assessed by the judge.

Citation
RE CK
Parties
Alleged Mentally Incapacitated Person (mother, Mip): M; Alleged Mentally Incapacitated Person (son, Mip): S; Applicant (step Son Who Instituted HCMH 77 & 78): C; Applicant (step‑grandson Who Instituted HCMH 80 & 81): Y; Guardian Appointed by Guardianship Board / Interested Public Authority: Director of Social Welfare; Proposed Committee / Represented in Proceedings: Official Solicitor; Appointed Committee for Both Mips (professional Committee): Accountant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 September 2012
Case Number
HCMH77/2011
Procedural Posture
Part II Mental Health Applications Under Mental Health Ordinance Cap.136 / Decision on Appointment of Committees and Allocation of Costs Following Consolidated Applications and Hearings
Outcome
Accountant appointed as committee for both MIPs with consent of applicants; costs allocated between estates and individual applicants as detailed below
Legal Topics
Appointment of Committee, Evidence Requirements Under Section 7, Allocation of Legal Costs, Consolidation of Applications, Use of Part II Process for Private Disputes
Source Language
EN
Mental Health Law Guardianship Capacity Estate Administration Costs Law Appointment of Committee Evidence Requirements Under Section 7 Allocation of Legal Costs +2 more

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Parties

M

Alleged Mentally Incapacitated Person (mother, Mip)

S

Alleged Mentally Incapacitated Person (son, Mip)

C

Applicant (step Son Who Instituted HCMH 77 & 78)

Y

Applicant (step‑grandson Who Instituted HCMH 80 & 81)

Director of Social Welfare

Guardian Appointed by Guardianship Board / Interested Public Authority

Official Solicitor

Proposed Committee / Represented in Proceedings

Accountant

Appointed Committee for Both Mips (professional Committee)

Procedural Posture

Part II Mental Health Applications Under Mental Health Ordinance Cap.136 / Decision on Appointment of Committees and Allocation of Costs Following Consolidated Applications and Hearings

Legal Issues

  1. 1 Whether the estates of the MIPs should bear all costs of contested Part II applications
  2. 2 Extent of evidence of property and affairs required in a Part II application under s.7
  3. 3 Proper composition of committees where estates are complex and applicants are antagonistic

Ratio Decidendi

Given the complexity of the MIPs' assets and the antagonism between competing applicants, the Court must avoid turning Part II applications into a forum for private forensic disputes; detailed asset investigation should generally be left to a neutral professional committee, and costs unnecessarily incurred as a result of antagonistic conduct should not be borne fully by the MIPs' estates. Accordingly the estates will bear limited costs (filing/service and fixed lump sums and indemnity costs for OS/DSW) while specific costs arising from unnecessary conduct are to be paid by the responsible applicant and all costs are to be summarily assessed by the judge.

Court Disposition

Accountant appointed as committee for both MIPs with consent of applicants; costs allocated between estates and individual applicants as detailed below

Orders

  • Estates of the two MIPs to bear costs of all four applications up to filing in court and service on one another
  • Estates of the two MIPs to bear a lump sum of HK$60,000 for each side (ie HK$60,000 payable in respect of each camp)