FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS

CACV 13/2014,
CACV 16/2014 and
CACV 17/2014
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 13, 16 and 17 OF 2014

(ON APPEAL FROM HCA NO. 2155 OF 2011)

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BETWEEN
FOK CHUN YUE BENJAMIN Plaintiff
(in his capacity as a co-executor of the estate of Fok Ying Tung Henry, deceased and in his personal capacity)
and
FOK CHUN WAN IAN 1st Defendant
(in his personal capacity and as an executor of the estate of Fok Ying Tung Henry, deceased)
FOK MO KAN 2nd Defendant
(in her capacity as co-executrix of the estate of Fok Ying Tung Henry, deceased)
FOK LAI PING PATRICIA 3rd Defendant
FOK TSUN TING TIMOTHY 4th Defendant
FOK LAI LOR NORA 5th Defendant
FOK LAI LAI LILY 6th Defendant
FOK MAN BUN NELSON 7th Defendant
MANSON FOK 8th Defendant
FOK MAN FONG THOMAS 9th Defendant
FOK HIN YEUNG DAVID 10th Defendant
FOK HIN SUEN DONALD 11th Defendant
FOK HIN KWONG DANNY 12th Defendant
FOK HIN KEUNG MICHAEL 13th Defendant
FOK LUI YIN NEI 14th Defendant
FOK FUNG KIN NEI ELAINE 15th Defendant
PERSONAL REPRESENTATIVE OF THE ESTATE OF LAM SOOK DUEN, DECEASED 16th Defendant

________________________

(Heard together)

Before: Hon Lam VP, Kwan and Barma JJA in Court

Dates of Written Submissions: 5, 26 March and 9 April 2015
Date of Judgment: 20 January 2016

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. We handed down our judgment on 12 February 2015. Since then parties filed submissions on costs of the appeal and costs below. Inthe meantime, time was given to the first family siblings (Ian, Tim, Ben, Nora and Pat) to try to resolve their differences by mediation.

2. Unfortunately, despite efforts by those siblings and the very experienced mediator, and despite several extensions of time beinggranted by the court for that purpose, no agreement was reached. It was acknowledged that the disputes would have to be addressedby way of fresh proceedings and at a hearing on 10 December 2015, the court granted an extension up to 31 January 2016 for the freshproceedings to be commenced.

3. In light of that, this court has to address the submissions on costs before us.

4. By a letter of 9 December 2015 from the solicitors for the Aunt (the 2nd Defendant), the court and other parties were informed of the demise of the Aunt on 25 November 2015. The solicitors have no furtherinstructions in the matter. Up to now, there has not been any application under Order 15 Rule 7 for a carry-on order to be made. In light of that, we shall defer the matter on costs with regard to the Aunt in the appeal and in the court below, whether costsin her favour or costs against her.

5. As between the other parties, we shall first consider the costs of the appeal.

6. We have read the submissions of the parties. The main protagonists in the appeal were Ben, Nora, Pat, Ian and Tim. As between them,the appeal (and the proceedings below) is clearly hostile litigation. In our main judgment, we held in favour of Ben, Nora and Paton the key issues in the appeal which was resisted by Ian and Tim. We do not think the incidence of costs of the appeal should dependon the outcome of the fresh proceedings. The terms of the stay have been finally determined by us (accepting the submissions ofBen, Nora and Pat) and it is not apt to draw an analogy with the costs of an Order 14 appeal. Notwithstanding what had happenedin the court below, we do not find any cogent basis for departing from the general rule of costs to follow the event. We thereforeorder that Ian and Tim shall jointly and severally pay the costs of Ben, Nora and Pat. Such costs are to be taxed on party and partybasis if not agreed, with certificates for 2 counsel.

7. As regards the position of the Mother (the 14th Defendant) and those in the 2nd and 3rd Families (the 6th to 13th, 15th and 16th Defendants), they are innocent parties unfortunately dragged into this dispute amongst the first family siblings. They should notbe out of pocket in terms of costs. The costs should not be borne, as suggested by counsel for Ian, by the first family portionof the estate since we consider this piece of litigation as hostile litigation amongst the first family members and there is no reasonwhy Ben, Nora and Pat should have to share in the payment of such costs. We order Ian and Tim to pay jointly and severally the costsof the Mother, and the siblings in the 2nd and 3rd families in the appeal. Such costs are to be taxed on indemnity basis if not agreed.

8. In respect of costs below, in light of our conclusions in the main judgment, the costs order of Poon J against Ben and Nora hasto be set aside.

9. In the court below, the main protagonists were Ben, Nora, Ian and Tim, Pat adopted a neutral stance. Pat did not appeal againstthe order as to costs made by Poon J in respect of her costs. We shall leave it as it is.

10. At the same time, taking account of the ultimate outcome in this appeal, we do not consider any one of the four main protagonistshas emerged as the successful party or parties. Many of the points taken at that stage for Ben were rightly rejected. In the presentcircumstances, we regard it as fair as between them to order each of them to bear their own costs below.

11. As for the Mother and the 2nd and 3rd Family siblings, again we see no reason why they should not be compensated for their costs incurred below. We order that Ian, Tim,Ben and Nora shall jointly and severally bear their costs below, such costs are to be taxed on indemnity basis if not agreed, withcertificate for 2 counsel for the 2nd and 3rd Family siblings.

12. The above costs order in the appeal shall include the costs of the applications for costs.

(M H Lam) (Susan Kwan) (Aarif Barma)
Vice President Justice of Appeal Justice of Appeal

Mr Clifford Smith SC, Mr Richard Todd and Ms Bonnie Y K Cheng, instructed by Norton Rose Fulbright Hong Kong, for the plaintiff(Appellant in CACV 13/2014)

Mr Denis Chang SC, Mr Ronny Wong SC and Mr Nelson Miu, instructed by Hobson & Ma, for the 1st defendant

Mr Wong Chao Wai Brian, instructed by Peter C Wong, Chow & Chow, for the 2nd defendant

Mr Victor Joffe and Mr Kerby Lau, instructed by Hampton, Winter & Glynn, for the 3rd defendant (Appellant in CACV 16/2014)

Mr Victor Dawes SC and Mr Wilson Leung, instructed by Wilkinson & Grist, for the 4th defendant

Mr Benjamin Yu SC and Ms Eva Sit, instructed by Clifford Chance, for the 5th defendant (Appellant in CACV 17/2014)

Mr Samuel Wong, instructed by Sit, Fung, Kwong & Shum, for the 6th to 13th, 15th and 16th defendants

Mr Leon Ho, instructed by Fred Kan & Co, for the 14th defendant