LAM MAN YIN AND ANOTHER v. LAM MAN CHEUNG AND ANOTHER

LAM MAN YIN AND ANOTHER v. LAM MAN CHEUNG AND ANOTHER

Reduction of MC Lam’s costs liability by 50% was disproportionate; a 30% disallowance of the costs incurred in preparing the irrelevant parts of MY Lam’s affirmation is appropriate. MC Lam shall bear the costs of OS/375 except the disallowed 30%, those costs are not to be paid out of the estate; the Executors’ own costs of OS/375 and OS/739 are to be paid out of the estate on a trustee basis with certificate for counsel; the Executors (and MY Lam personally) have the costs of OS/739 to be borne by MC Lam and Jiao, not to be paid out of the estate. Payments from the residue were refused because that would unfairly burden the residuary devisee under Clause 5 of the Will.

Citation
[2022] HKCFI 1201
Parties
Plaintiff in HCMP 375/2021; 1st Defendant in HCMP 739/2021: Lam Man Cheung (林文翔); Defendant in HCMP 375/2021; 1st Plaintiff in HCMP 739/2021 (suing Personally and as Executrix): Lam Man Yin (林文燕); Defendant in HCMP 375/2021; 2nd Plaintiff in HCMP 739/2021 (suing as Executor): Lam Man Pang (林文鵬); 2nd Defendant in HCMP 739/2021: Jiao Fangfang (焦芳芳)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 April 2022
Case Number
HCMP739/2021
Procedural Posture
Miscellaneous Proceedings (order 85 Applications Concerning Estate) / Costs Application — Variation of Costs Order Nisi Following Judgment on 28 March 2022
Outcome
Costs order nisi varied in part; 30% of costs for preparing specified parts of MY Lam’s affirmation disallowed; costs allocation determined as between parties and the estate
Legal Topics
Variation of Costs Order, Trustee Basis Costs, Executor Costs, Relevance of Affidavit Material, Residuary Legacy Allocation of Costs
Source Language
EN
Estate Administration Probate Civil Procedure Costs Variation of Costs Order Trustee Basis Costs Executor Costs Relevance of Affidavit Material +1 more

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Parties

Lam Man Cheung (林文翔)

Plaintiff in HCMP 375/2021; 1st Defendant in HCMP 739/2021

Lam Man Yin (林文燕)

Defendant in HCMP 375/2021; 1st Plaintiff in HCMP 739/2021 (suing Personally and as Executrix)

Lam Man Pang (林文鵬)

Defendant in HCMP 375/2021; 2nd Plaintiff in HCMP 739/2021 (suing as Executor)

Jiao Fangfang (焦芳芳)

2nd Defendant in HCMP 739/2021

Procedural Posture

Miscellaneous Proceedings (order 85 Applications Concerning Estate) / Costs Application — Variation of Costs Order Nisi Following Judgment on 28 March 2022

Legal Issues

  1. 1 Whether MC Lam’s costs liability for OS/375 should be reduced by 50% because parts of an affirmation were irrelevant
  2. 2 Whether the Executors’ own costs should be paid out of the estate residue or on a trustee basis out of the estate
  3. 3 Whether costs of OS/739 should be borne by MC Lam and Jiao and whether such costs may be paid out of the estate

Ratio Decidendi

Reduction of MC Lam’s costs liability by 50% was disproportionate; a 30% disallowance of the costs incurred in preparing the irrelevant parts of MY Lam’s affirmation is appropriate. MC Lam shall bear the costs of OS/375 except the disallowed 30%, those costs are not to be paid out of the estate; the Executors’ own costs of OS/375 and OS/739 are to be paid out of the estate on a trustee basis with certificate for counsel; the Executors (and MY Lam personally) have the costs of OS/739 to be borne by MC Lam and Jiao, not to be paid out of the estate. Payments from the residue were refused because that would unfairly burden the residuary devisee under Clause 5 of the Will.

Court Disposition

Costs order nisi varied in part; 30% of costs for preparing specified parts of MY Lam’s affirmation disallowed; costs allocation determined as between parties and the estate

Orders

  • MC Lam shall bear the costs of OS/375 (save 30% of the costs incurred for the purpose of preparing MY Lam’s affirmation filed on 20 May 2021) which, for the avoidance of doubt, are not to be paid out of the Estate, and the Executors’ own costs of OS/375 on a trustee basis be paid out of the Estate, with certificate...
  • The Executors (and MY Lam in her personal capacity) shall have the costs of OS/739 which shall be borne by MC Lam and Jiao (which, for the avoidance of doubt, are not to be paid out of the Estate), and the Executors’ own costs of OS/739 on a trustee basis be paid out of the Estate, with certificate for counsel