CHEUNG AU YUEN ROSALIND AND ANOTHER v. WONG KAN KIU AND ANOTHER

CHEUNG AU YUEN ROSALIND AND ANOTHER v. WONG KAN KIU AND ANOTHER

The court varied the nisi costs order to grant Madam Wong her costs of defence in her personal capacity and held the estate of Chow liable for the plaintiffs' costs of the action (including those payable to Madam Wong personally) because the allegations and defence in both capacities were effectively the same and the plaintiffs had accepted joinder; the application to alter the judgment on interest was dismissed because there was no slip or error, the court was aware of the joinder, and it would be artificial and unjust to deprive the plaintiffs of interest given the unified defence run in both capacities.

Citation
CHEUNG AU YUEN ROSALIND AND ANOTHER v. WONG KAN KIU AND ANOTHER
Parties
Plaintiff (executor of the Estate of Cheung Ka Kui Kenneth): Cheung Au Yuen Ling Rosalind; Plaintiff (executor of the Estate of Cheung Ka Kui Kenneth): Cheung Wing Hong Shannon; First Defendant (personal Capacity): Wong Kan Kiu; Second Defendant (as Administratrix of the Estate of Chow You, Deceased): Wong Kan Kiu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 October 2015
Case Number
HCA850/2011
Procedural Posture
Civil Action for Repayment of Loan and Counterclaim Involving Estates / Post Trial Applications to Vary Nisi Costs Order and to Amend Judgment on Interest (applications Heard 15 Sep 2015; Judgment 2 Oct 2015)
Outcome
Summons varied in part to alter allocation of costs; notice of motion by the estate of Chow dismissed; nisi orders as specified made absolute unless varied within 14 days
Legal Topics
Joinder, Costs Order, Pre Judgment Interest, Amendment of Judgment (o.20 R.11), Denial of Liability
Source Language
EN
Civil Procedure Probate and Estate Administration Debt Recovery Costs and Interest Joinder Costs Order Pre Judgment Interest Amendment of Judgment (o.20 R.11) +1 more

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Parties

Cheung Au Yuen Ling Rosalind

Plaintiff (executor of the Estate of Cheung Ka Kui Kenneth)

Cheung Wing Hong Shannon

Plaintiff (executor of the Estate of Cheung Ka Kui Kenneth)

Wong Kan Kiu

First Defendant (personal Capacity)

Wong Kan Kiu

Second Defendant (as Administratrix of the Estate of Chow You, Deceased)

Procedural Posture

Civil Action for Repayment of Loan and Counterclaim Involving Estates / Post Trial Applications to Vary Nisi Costs Order and to Amend Judgment on Interest (applications Heard 15 Sep 2015; Judgment 2 Oct 2015)

Legal Issues

  1. 1 Whether the nisi costs order should be varied to award the 1st defendant her personal costs of defence
  2. 2 Whether the estate of Chow should bear the plaintiffs' costs of the action including those incurred before the estate was joined
  3. 3 Whether the judgment should be altered so that pre-judgment interest runs from the date the estate of Chow was joined

Ratio Decidendi

The court varied the nisi costs order to grant Madam Wong her costs of defence in her personal capacity and held the estate of Chow liable for the plaintiffs' costs of the action (including those payable to Madam Wong personally) because the allegations and defence in both capacities were effectively the same and the plaintiffs had accepted joinder; the application to alter the judgment on interest was dismissed because there was no slip or error, the court was aware of the joinder, and it would be artificial and unjust to deprive the plaintiffs of interest given the unified defence run in both capacities.

Court Disposition

Summons varied in part to alter allocation of costs; notice of motion by the estate of Chow dismissed; nisi orders as specified made absolute unless varied within 14 days

Orders

  • Madam Wong in her personal capacity (1st defendant) shall have her costs of defence in her personal capacity
  • The plaintiffs shall have their costs of this action, including any costs reserved, against Madam Wong in her capacity as the administratrix of the estate of Chow (2nd defendant), which shall include the costs payable by the plaintiffs to Madam Wong personally