LIU CHING YUEN v. LIU HAU KAN FUNG

HCAP 34/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 34 OF 2012

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BETWEEN

LIU CHING YUEN(廖靜遠), the sole executor Plaintiff
of the last will dated 23rd October 1996
of the late LIU FAT(廖發) deceased

and

LIU HAU KAN FUNG(廖侯根鳳) Defendant

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Before: Hon Chung J in Chambers

Date of Reply Submissions: 24 December 2013
Date of Decision on costs: 10 January 2014

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DECISION ON COSTS

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1. In a judgment handed down on 5 December 2013 (“the said judgment”), summary judgment was entered in the plaintiff’s favour. In addition, no order was made on the defendant’s own summons.

2. Pursuant to the directions given in the said judgment, the parties have lodged written submissions relating to costs. In short,the plaintiff seeks the costs to be paid by the defendant whereas the defendant argues that no order as to costs should be made againsther; further, her own costs be paid out of the suit property.

3. The defendant’s case rests principally on:

(a) RHC Ord 62 r 6(1) (in gist, reasonable ground for opposing the will, and for insisting it to be proved);

(b) provisions in the Legal Aid Ordinance (Cap 91).

The plaintiff argues in essence costs should follow the event.

4. There is no need to go into the details, suffice it to say this is a case where neither party has acted entirely reasonably; see:

(1) para 4 and 9 to 21, the said judgment for the defendant’s unsatisfactory conduct; and

(2) para 22, 25 and 32 to 34, the said judgment for the plaintiff’s.

5. Bearing the above in mind, this is a case the circumstances of which are similar to those in Re Moss, Larke v Nugus [2000] WTLR 1033 when the court there considered the question of costs (para 26, 28 to 29, the said judgment).

6. Here, the defendant’s queries were not entirely satisfactorily answered by the plaintiff (let alone answered in good time); onthe other hand, although the defendant has not put forth positive allegations of impropriety on the plaintiff’s part, she has notwithdrawn the opposition to the said will either.

7. I therefore find that it is appropriate to let costs “lie where they fall”. Like the court in the Larke case, (save as set out in para 8 below) no order as to costs is made for the parties in this action.

8. The defendant’s own costs are to be taxed in accordance with the provisions of the Legal Aid Regulations (Cap 91A).

(Andrew Chung)
Judge of the Court of First Instance
High Court

Mr Lee Tung Ming, instructed by David YY Fung & Co, for the plaintiff

Mr Jeremy SK Chan, instructed by Joseph Li & Co, assigned by Director of Legal Aid, for the defendant