XIAO XIONGWEI, sole executor of the estate of TSANG WONG MEI, DECEASED AND ANOTHER v. TO SHING WO AND SIU HING FONG as Managers of TIN HAU WUI AND ANOTHER

XIAO XIONGWEI, sole executor of the estate of TSANG WONG MEI, DECEASED AND ANOTHER v. TO SHING WO AND SIU HING FONG as Managers of TIN HAU WUI AND ANOTHER

Plaintiff is ordinarily resident out of jurisdiction and does not possess a high probability of success on key legal issues; withdrawal of the counterclaim removed the 'same issue' and 'real attacker' objections; on a broad-brush assessment the court exercised its discretion under O 23 to order security for costs but applied a substantial discount to the claimed quantum, fixing security at $260,000 payable into court within 14 days and staying further proceedings until payment; failure to pay will result in dismissal of the claim with costs.

Citation
[2020] HKDC 1081
Parties
1st Plaintiff (by Original Action): Xiao Xiongwei (sole executor of the estate of Tsang Wong Mei, deceased); 2nd Plaintiff (by Original Action): Xiao Xiong Wei; 1st Defendant (by Original Action); 3rd Defendant (by Counterclaim): To Shing Wo and Siu Hing Fong as Managers of Tin Hau Wui; 2nd Defendant (by Original Action); Plaintiff (by Counterclaim): Siu Kwok Cheung
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
24 November 2020
Case Number
DCCJ3746/2019
Procedural Posture
Civil Action — Inheritance/dispute Over Share in Family Association (tin Hau Wui) / Pre Trial — Application for Security for Costs; Counterclaim Withdrawal Application
Outcome
Order to allow withdrawal of counterclaim and strike specified paragraphs; security for costs ordered against plaintiffs in the sum of $260,000 with stay of proceedings until payment; failure to pay will result in dismissal; costs order nisi for parties to bear their own costs of the application
Legal Topics
Security for Costs, Intestacy, Family Tong/customary Law, Withdrawal of Counterclaim, Costs Orders
Source Language
EN
Civil Procedure Probate and Estate Law Inheritance Law Trusts and Customary Law Security for Costs Intestacy Family Tong/customary Law Withdrawal of Counterclaim +1 more

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Parties

Xiao Xiongwei (sole executor of the estate of Tsang Wong Mei, deceased)

1st Plaintiff (by Original Action)

Xiao Xiong Wei

2nd Plaintiff (by Original Action)

To Shing Wo and Siu Hing Fong as Managers of Tin Hau Wui

1st Defendant (by Original Action); 3rd Defendant (by Counterclaim)

Siu Kwok Cheung

2nd Defendant (by Original Action); Plaintiff (by Counterclaim)

Procedural Posture

Civil Action — Inheritance/dispute Over Share in Family Association (tin Hau Wui) / Pre Trial — Application for Security for Costs; Counterclaim Withdrawal Application

Legal Issues

  1. 1 Whether to order security for costs under Order 23 where plaintiff is ordinarily resident out of jurisdiction and address in writ is incorrect
  2. 2 Whether merits of plaintiff's claim preclude ordering security for costs
  3. 3 Impact of withdrawal of counterclaim on 'same issue' and 'real attacker' grounds

Ratio Decidendi

Plaintiff is ordinarily resident out of jurisdiction and does not possess a high probability of success on key legal issues; withdrawal of the counterclaim removed the 'same issue' and 'real attacker' objections; on a broad-brush assessment the court exercised its discretion under O 23 to order security for costs but applied a substantial discount to the claimed quantum, fixing security at $260,000 payable into court within 14 days and staying further proceedings until payment; failure to pay will result in dismissal of the claim with costs.

Court Disposition

Order to allow withdrawal of counterclaim and strike specified paragraphs; security for costs ordered against plaintiffs in the sum of $260,000 with stay of proceedings until payment; failure to pay will result in dismissal; costs order nisi for parties to bear their own costs of the application

Orders

  • Leave granted for Plaintiff (By Counterclaim) to withdraw the Counterclaim entirely and paragraphs 65 to 75 of the Defence and Counterclaim filed 5 November 2018 be struck out consequentially
  • Costs of the withdrawal application and of, incidental to and occasioned by the Counterclaim to be paid by the Plaintiff (By Counterclaim) to the 1st and 2nd Defendants (By Counterclaim), to be taxed if not agreed