CHAN CHUN PUI AND ANOTHER v. FENG CUIXIAN

CHAN CHUN PUI AND ANOTHER v. FENG CUIXIAN

Proceedings were hostile litigation rather than limited inquiries into testamentary capacity; therefore the general rule that costs follow the event applies. Defendant is awarded costs of the action, but Defendant must pay the Plaintiffs' costs resulting from the Defendant's change of expert and the recall of the Plaintiffs' expert; costs of the present application are awarded to the Defendant.

Citation
CHAN CHUN PUI AND ANOTHER v. FENG CUIXIAN
Parties
Plaintiffs: Plaintiffs; Defendant: Defendant; Deceased (testator): Madam Chan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 December 2009
Case Number
HCAP13/2007
Procedural Posture
Probate / Will Challenge / Post Trial Application to Vary Costs Order
Outcome
Defendant awarded costs of the action subject to exception for costs arising from change of expert; Defendant to have costs of the present application.
Legal Topics
Testamentary Capacity, Undue Influence, Costs Order, Expert Evidence, Hostile Litigation, Banks V. Goodfellow Test
Source Language
EN
Probate Wills Costs Civil Procedure Capacity Evidence Testamentary Capacity Undue Influence +4 more

Case Brief

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Parties

Plaintiffs

Plaintiffs

Defendant

Defendant

Madam Chan

Deceased (testator)

Procedural Posture

Probate / Will Challenge / Post Trial Application to Vary Costs Order

Legal Issues

  1. 1 Whether the general rule that costs follow the event should be displaced by exceptions in will challenges
  2. 2 Whether the proceedings attracted the second exception because testamentary capacity required investigation
  3. 3 Whether the Plaintiffs' conduct transformed the dispute into hostile litigation negating the exceptions

Ratio Decidendi

Proceedings were hostile litigation rather than limited inquiries into testamentary capacity; therefore the general rule that costs follow the event applies. Defendant is awarded costs of the action, but Defendant must pay the Plaintiffs' costs resulting from the Defendant's change of expert and the recall of the Plaintiffs' expert; costs of the present application are awarded to the Defendant.

Court Disposition

Defendant awarded costs of the action subject to exception for costs arising from change of expert; Defendant to have costs of the present application.

Orders

  • Defendant will be awarded the costs of this Action
  • Defendant to pay the Plaintiffs' costs incurred as a result of (i) the change of the Defendant's expert from Dr Dominic Tak-shing Lee to Dr Chung-kwong Wong, and (ii) the recalling of Dr Cheung Hung Kin to testify on 17 February 2009; such costs to be taxed if not agreed