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CACV 136/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 136 OF 2012
(ON APPEAL FROM FCMP NO. 270 OF 2010)
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BETWEEN
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ACLS |
Plaintiff |
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and |
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HSB(T)L |
Defendant |
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and |
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AYL |
1st Intervener |
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ALSH |
2nd Intervener |
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CPC |
3rd Intervener |
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ACW |
4th Intervener |
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| Before : Hon Cheung, Fok and Lam JJA in Court |
| Date of Hearing : 1 February 2013 |
| Date of Judgment : 1 February 2013 |
| Date of Reasons for Judgment : 19 February 2013 |
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REASONS FOR JUDGMENT
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Hon Lam JA (giving Reasons for Judgment of the Court):
1. The Plaintiff applied for interim maintenance from the estate of her grandfather under the Inheritance (Provision for Family and Dependants) Ordinance Cap 481 [“the Ordinance”]. Her grandfather passed away in July 2009. There are probate actions in respect of the estate of her grandfather in High Court Probate Actions Nos. 7 and 9 of 2010. Those actions have not been concluded. A corporate administrator pendente lite was appointed. It takes a neutral stance with regard to the Plaintiff’s application.
2. For the purpose of this appeal, it is not necessary to set out the disputes in the probate actions. The litigations stemming from such disputes have been the subject matters of a number of judgments including at least two judgments of this court in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148 and Au Cheuk Wei Wilson v Hang Seng Bank (Trustee) Ltd CACV 213 of 2011, 7 January 2013. The background of the disputes has been adequately set out in those judgments. There is substantial wealth in the estate of the grandfather. It is estimated that as in April 2010 the stocks in the estate were over $520 million and in addition it held 22 landed properties.
3. The Plaintiff sought interim maintenance on the basis that she had been a person who immediately before the death of the deceased was being maintained by him. Her case was that the grandfather had been supporting her in her education, both in Hong Kong and overseas. In the summer of 2009, the Plaintiff enrolled herself in a degree course offered by a university in England. At that time she expected that the grandfather, as in the past, would support her overseas living and education expenses. However, after the death of the grandfather, she encountered difficulties in obtaining such support and therefore the present application was made.
4. Her application was dismissed by the judge in March 2012. In the judgment of 2 March 2012, the judge was sympathetic to the Plaintiff’s claim. Subject to one point, the judge made it clear that he was of the view that the Plaintiff was likely to succeed[1]. The point which the judge considered to be fatal to the Plaintiff’s claim was this: since she had already completed her undergraduate study and was about to complete her postgraduate study, all her education expenses had been paid, albeit, according to the evidence, by loans from the Plaintiff’s brother. Given that there is no evidence that the brother would take legal action or other action to recover such loans, the judge was not satisfied that the Plaintiff was in “immediate need of financial assistance” and therefore this is not a case coming within the scope of s7(1) of the Ordinance.
5. The Plaintiff appealed against that judgment and contended the judge erred in his construction of s7(1). Mr Kenneth Lam, counsel for the Plaintiff, contended that the word “immediate” in s7(1) should mean “current” and/or “existing at the present time” as opposed to “urgent” as held by the judge at para 60 of the judgment.
6. The Administrator pendente lite continued to maintain a neutral stance in the appeal and its attendance was excused. The interveners (who resisted the application at the court below) resisted the appeal.
7. On behalf of the 2nd to 4th Interveners, Mr Kevin Li submitted that the judge did not confine himself to a consideration of the urgency of the Plaintiff’s need. He also submitted that urgency is a relevant consideration and the judge was correct in taking that into account. He contended that the Plaintiff’s appeal is effectively a dressed up complaint against the court’s exercise of discretion with which this court should not interfere as it was not obviously wrong. Counsel said the Plaintiff was well-provided for by her parents and adequately financed in her overseas education by the loans from her brother. Counsel also drew this court’s attention to a recent case[2] where another judge of the District Court refused to grant interim maintenance under the Ordinance on the ground that the probate disputes had not been resolved. There is however, no respondent’s notice raising this point.
8. On behalf of the 1st Intervener, Ms Belinda Ma supported the following arguments which, she said, were advanced by the 2nd to 4th Interveners,
(a) The judge should take a literal approach in construing the word “immediate” which means both “urgent” and “current”;
(b) Even if “immediate” should mean “current”, the Plaintiff does not have current financial need.
9. She also submitted that current liabilities should be distinguished from current financial needs. In her submissions, past debts should not be regarded as “immediate financial need” in the absence of any indication that creditors are seriously pressing for repayment.
10. In his skeleton in reply, Mr Lam said he did not dispute that urgency is a relevant consideration in determining how the discretion of the court should be exercised in an interim maintenance application under s7 of the Ordinance. However, he contended that the judge did not reject the Plaintiff’s application as a matter of discretion. Rather, according to Mr Lam, the judge rejected the application on the basis that the Plaintiff could not satisfy the statutory criterion of being “in immediate need of financial assistance”. Thus, if the construction on that criterion adopted by the judge was wrong, it was an error of law which had precluded the judge from having exercised his discretion altogether.
11. As regards whether the needs of the Plaintiff were current, Mr Lam referred to the unchallenged evidence that the Plaintiff was a student with no income or assets and her brother had borrowed money from others in order to lend the money to her. There was no evidence of the Plaintiff being provided for by her parents or that she had other sources of finance. Counsel said the Plaintiff had an indebtedness of at least $885,000 and she should be required to rely on loans or the continuing generosity of others.
12. Mr Lam objected to the jurisdiction point (viz probate disputes not having been resolved) being taken at this stage.
13. On 1 February 2013, after hearing submissions from the parties, we dismissed the appeal with an order that the Plaintiff shall pay the costs of the Interveners, such costs to be taxed if not agreed. Here are our reasons for our judgment.
The basis for the dismissal of the Plaintiff’s application
14. The first issue is: what was the judge’s basis for the dismissal of the Plaintiff’s application. Did he dismiss it on the ground that the Plaintiff did not satisfy the criterion of “immediate need” in s7 or did he dismiss it as a matter of his exercise of discretion having regard to the overall circumstances, including the urgency of the Plaintiff’s need?
15. In our judgment, it is plain from a reading of the reasons set out in the judgment of 2 March 2012[3] that the judge refused to grant the Plaintiff interim maintenance because she was not in immediate need of financial assistance.
16. We do not think the judge had in mind the exercise of his discretion when he held that the Plaintiff did not satisfy the statutory criterion. This is quite apparent from the fact that after reaching his conclusion in this respect, he went on to discuss what he would have done if the Plaintiff had met such criterion. In that context, he had regard to the considerations set out under section 5 of the Ordinance on a broad-brush basis. Having regards to all the circumstances, he said subject to his decision on the statutory criterion of immediate need, the Plaintiff did have a good chance of success.
17. The judge did not explicitly give consideration as to how “immediate need” should be construed. The judge started his discussion on this criterion by reciting s 7(1) at para 56 and stating at para 57 that the burden of proof as to “immediate financial needs” was on the Plaintiff. After referring to the factual background at paras 58 and 59, he said at para 60,
“Bearing this background in mind, the question that has to be asked is this: If the Plaintiff is only asking for the reimbursement of her expenses incurred and paid for during the past 3 years, is the court satisfied that she is now really in urgent financial needs so that an interim maintenance order has to be made at this stage?”
18. He then to proceed to answer that question in the negative and held at para 63 that the Plaintiff was not in such a precarious financial position that warranted an interim maintenance order to be made.
19. Therefore, the judge dismissed the Plaintiff’s application on the basis that she failed to establish “immediate need of financial assistance” instead of refusing relief as a matter of discretion. Was he correct as a matter of law?
Construction of “immediate need” in section 7 of the Ordinance
20. Mr Lam took us to the dictionary meanings of the word “immediate” and he said the word is capable of encompassing the meanings of “current” as well as “urgent”. He relied on the English authority of M v M [2011] 1 FLR 1773 and contended that in the context of the Ordinance, the word...
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