CLEMENCIA MANANSALA GALLAGHER v. MARK EDWARD KIRKHAM

CLEMENCIA MANANSALA GALLAGHER v. MARK EDWARD KIRKHAM

Extension of time was refused because the delay was substantial and wholly inexcusable and the proposed grounds of appeal lacked sufficient merit to outweigh the prejudice to the respondent; leave to appeal the costs order was refused because there was no real prospect of impugning the judge's discretionary finding that the 2nd defendant acted unreasonably and the indemnity costs order was justified; failure to obtain a Beddoe order weighed against the 2nd defendant.

Citation
CLEMENCIA MANANSALA GALLAGHER v. MARK EDWARD KIRKHAM
Parties
Plaintiff/respondent: Clemencia Manansala Gallagher; 1st Defendant/respondent: Mark Edward Kirkham; 2nd Defendant/applicant: Azure Trustees Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 March 2011
Case Number
HCMP315/2011
Procedural Posture
Inheritance (provision for Family and Dependants) Ordinance Application (family Provision) / Court of Appeal Interlocutory Applications for Extension of Time and Leave to Appeal (in Chambers)
Outcome
Both applications refused
Legal Topics
Extension of Time to Appeal, Leave to Appeal on Costs, Construction of Trust Instrument, Indemnity Costs, Beddoe Order, Hostile Beneficiary Provisions
Source Language
EN
Trusts Probate and Succession Civil Procedure Costs Estate Administration Extension of Time to Appeal Leave to Appeal on Costs Construction of Trust Instrument +3 more

Case Brief

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Parties

Clemencia Manansala Gallagher

Plaintiff/respondent

Mark Edward Kirkham

1st Defendant/respondent

Azure Trustees Limited

2nd Defendant/applicant

Procedural Posture

Inheritance (provision for Family and Dependants) Ordinance Application (family Provision) / Court of Appeal Interlocutory Applications for Extension of Time and Leave to Appeal (in Chambers)

Legal Issues

  1. 1 Whether an extension of time to appeal should be granted despite substantial inexcusable delay
  2. 2 Whether leave to appeal the costs order should be granted
  3. 3 Proper construction of the trust instrument as to the widow's entitlement

Ratio Decidendi

Extension of time was refused because the delay was substantial and wholly inexcusable and the proposed grounds of appeal lacked sufficient merit to outweigh the prejudice to the respondent; leave to appeal the costs order was refused because there was no real prospect of impugning the judge's discretionary finding that the 2nd defendant acted unreasonably and the indemnity costs order was justified; failure to obtain a Beddoe order weighed against the 2nd defendant.

Court Disposition

Both applications refused

Orders

  • Summons for extension of time to appeal refused
  • Application for leave to appeal the costs order refused