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Chan Siu Man v Lam Jenny And Others

Judgment Cited authorities 15 Cited in Precedent Map Related
Vincent
Judgment Date24 December 2013
Citation[2014] 1 HKLRD 529
Judgement NumberCACV186/2012
CourtCourt of Appeal (Hong Kong)
Subject MatterCivil Appeal
CACV186/2012 CHAN SIU MAN v. LAM JENNY AND OTHERS

CACV 186/2012 AND CACV 187/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 186 AND 187 OF 2012

(ON APPEAL FROM HCMP NO. 1282 OF 2010)

________________________

IN THE MATTER of the Estate of LAM KAM WAI, deceased

and

IN THE MATTER of the Inheritance (Provision For Family and Dependants) Ordinance, Cap 481

________________________

BETWEEN

CHAN SIU MAN Plaintiff
and
LAM JENNY and NORMAN CHUI PAK MING, the personal representatives of the estate of Lam Kam Wai, deceased 1st Defendants
LAM JENNY, LAM KA KEI ANNIE, LAM KA LING CALINA and LAM KAI TAK PHILIP 2nd Defendants
LAM KA WAI REBECCA and LAM KAI CHEUNG 3rd Defendants

________________________

Before: Hon Kwan, Barma JJA and Poon J in Court
Date of Hearing: 12 December 2013
Date of Judgment: 24 December 2013

________________________

J U D G M E N T

________________________

Hon Kwan JA:

1. The question raised in these appeals is whether an application under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the Inheritance Ordinance”) by a person claiming to be dependent on the deceased, is abated by the death of the applicant. In the decision of Deputy High Court Judge M Chan (as she then was) on 30 July 2012, she answered the question in the affirmative, and hence she struck out the application of the deceased plaintiff under the Inheritance Ordinance and dismissed the application of the personal representative of the deceased plaintiff for an order to carry on the proceedings.

2. CACV 186/2012 is the appeal against the strike out order. CACV 187/2012 is the appeal against the refusal of an order to carry on the proceedings; leave to appeal this decision was given by us at the outset of the hearing.

The background

3. The relevant background matters, taken largely from the decision of the judge, may first be stated as follows.

4. The deceased, Lam Kam Wai (“the deceased”), who died intestate on 8 September 2006, was survived by six children. Four of them were born to him and his former wife. The other two were born to the deceased and Madam Chan Siu Man (“Madam Chan”). Madam Chan had cohabited with the deceased since 1988. Their first child, a daughter named Lam Ka Wai Rebecca (“Rebecca”), was born in 1989. The deceased and his former wife were divorced in 1993. Letters of administration of the deceased’s estate were granted in November 2009.

5. On 29 March 2010, Madam Chan issued an originating summons against the personal representatives of the deceased’s estate (later re-named as the 1st defendants; “the 1st defendants”) pursuant to section 3 of the Inheritance Ordinance, seeking financial provision out of the deceased’s estate. She claimed that she and her two children had been maintained by the deceased throughout the 18 years of their cohabitation until his death, and that the deceased had provided for them in all respects of their lives. She relied on section 3(1)(ix), claiming that she was a person who immediately before the death of the deceased was being maintained wholly or substantially by him. She sought a declaration that she be entitled to exclusive occupation for life of the residence she shared with the deceased, interim periodical payments, periodical payments, lump sum payment, and an order for the transfer to her of property comprised in the deceased’s estate.

6. On 25 October 2010, Madam Chan issued a summons for interim payment. On 18 March 2011, she issued a summons seeking leave to accept the sanctioned offer made by the 1st defendants by letter dated 10 January 2011[1] and to withdraw her summons of 25 October 2010 for interim payment. Chung J made an order on 23 March 2011 giving leave to Madam Chan to accept the sanctioned offer, he made no order on paragraph 1 of Madam Chan’s summons of 25 October 2010 (for interim payment out of the deceased’s estate), and adjourned the question of costs of the summonses of 25 October 2010 and 18 March 2011 for argument to a date to be fixed. The originating summons was adjourned sine die with liberty to restore.

7. On 19 January 2012, Chung J ordered that the four children born to the deceased and his former wife be joined as the 2nd defendants in the proceedings and the two children born to the deceased and Madam Chan be joined as the 3rd defendants.

8. Before the originating summons was heard, Madam Chan passed away on 19 May 2012. She left a will appointing her daughter Rebecca as the executrix of her estate. Probate was granted to her on 17 July 2013.

9. On 1 June 2012, Rebecca issued an ex parte application for an order that the further proceedings in this action be carried on by her as the personal representative of Madam Chan against the defendants, and that she should cease to be the first-named 3rd defendant.

10. The 2nd defendants countered with a summons on 8 June 2012 for an order that Madam Chan’s claim be struck out on the ground that she had passed away and that the cause of action under the Inheritance Ordinance does not survive her death.

11. The judge gave directions on 22 June 2012 that the strike out application and the application for carrying on the proceedings be heard together on 3 July 2012. As mentioned earlier, she gave judgment on 30 July 2012 ordering that Madam Chan’s application by originating summons be struck out and dismissing Rebecca’s application for an order that further proceedings in the action be carried on by her.

12. On 9 October 2012, the judge varied the costs order nisi she made on 30 July 2012 and ordered there be no order as to the costs of this action, inclusive of the orders for costs reserved made prior to 22 June 2012, and that the costs of the application for a carry on order and of the strike out application be paid by Madam Chan’s estate to the 2nd defendants.

The judgment below

13. The judge considered the relevant provisions in the Inheritance Ordinance, and the meaning of “cause of action” as used in section 20(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”)[2], and as explained in Letang v Cooper [1956] 1 QB 232 at 242 to 243 and Sugden v Sugden [1956] P 120 at 135.

14. She took into account two English authorities dealing with the question whether the right to apply for financial provision under the Inheritance (Provision for Family Dependents) Act 1975 (“the 1975 Act”), upon which the Inheritance Ordinance was based, was a cause of action that could survive the death of the applicant.

15. In Whytte v Ticehurst [1986] Fam 64, Booth J held that the surviving widow, who applied under the 1975 Act but had died before the substantive hearing, had no enforceable right against the deceased’s estate and hence no cause of action that could survive her death and be enforced by her personal representative. The reasoning of this case was followed in In re Collins, Deceased [1990] Fam 56, in which an application was made by a son of the deceased but he was adopted three months before the application was made. Hollings J dismissed the son’s application holding that the right to apply for provision was not a cause of action and a fortiori not an “interest expectant” in the form of a vested right that would be preserved on the child’s adoption by the Adoption Act 1976, and as the son had ceased to qualify as a child of the deceased under the 1975 Act on the date of his adoption, the court had no jurisdiction to accede to his application.

16. The judge also referred to Tam Mei Kam (bankrupt) [2012] 4 HKLRD 345, in which Barma J (as he then was) held that the maintenance payments made to the bankrupt under the Inheritance Ordinance are property personal to the bankrupt and do not form part of the bankruptcy estate.

17. Having regard to the statutory provisions, in particular sections 3, 4 and 5 of the Inheritance Ordinance, and the authorities referred to above, the judge arrived at the conclusion that at most, what Madam Chan had at the time when she issued the proceedings and prior to her death was the right to make a claim under section 3. There was no “enforceable right” at the time of her death to any relief from the deceased’s estate, or to any of the orders for reasonable provision which the court can make under section 4, prior to her dependence and case for maintenance having been established to the satisfaction of the court, and prior to the exercise of the court’s discretion having regard to the relevant factors set out in section 5, and as known at the date of the hearing of the application[3].

18. For this reason, the judge was not satisfied that proof of the existence of the factual situation of Madam Chan’s dependence on the deceased by virtue of her having been maintained by him immediately before his death would have “entitled” her to relief under section 4, or that there was any enforceable right or vested interest in her at the date of her death, which can be said to constitute a cause of action which can survive for the benefit of her estate under section 20(1) of LARCO[4].

19. Rebecca, in her capacity as Madam Chan’s personal representative, brought these appeals against the judge’s decision. The 1st and 3rd defendants have not taken part in the appeals. Leading counsel for Rebecca and for the 2nd defendants, neither of whom had appeared below, have given this court a much fuller citation of the relevant authorities, covering not just English cases, but cases in Commonwealth countries.

The arguments for Rebecca

20. Mr Horace Wong, SC[5] advanced these arguments on appeal on behalf of Rebecca.

21. The starting point is section 20(1) of LARCO, which made “comprehensive provision” for the survival of causes of action “over the whole...

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