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Choy Po Chun And Another v Au Wing Lun

Judgment Cited authorities 2 Cited in 2 Precedent Map Related
Vincent
Judgment Date09 July 2014
Year2014
Citation[2014] 4 HKLRD 730
Judgement NumberHCAP7/2010
Subject MatterProbate Action
CourtHigh Court (Hong Kong)
HCAP7D/2010 CHOY PO CHUN AND ANOTHER v. AU WING LUN

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

____________

IN THE ESTATE ofAU, KONG TIM, (區幹恬) late of Flat A, 23rd Floor, Block 12, Provident Centre, No. 43 Wharf Road, North Point, Hong Kong, married man, Deceased

____________

BETWEEN

CHOY PO CHUN蔡寶珍 1st Plaintiff
AU CHAD WICK區卓威 2nd Plaintiff
and
AU WING LUN區穎麟 also known as (區頴麟)and AU WING LUN WILLIAM Defendant

____________
Before: Deputy High Court Judge B Chu in Chambers
Dates of Hearing: 2 May 2014
Date of Judgment: 9 July 2014

________________

J U D G M E N T

________________

Introduction

1. The main action is a probate action over, among other things, the validity of an alleged will in which the defendant (“D”) was appointed as one of the executors. Before the court were three applications as follows:

(i) A notice of appeal filed by the plaintiffs (collectively called “Ps”) on 26 November 2013 against Master Levy’s order allowing extension of time for D to comply with O 76 r 5 of the Rules of the High Court (“RHC”) in filing an affidavit of testamentary scripts (“Appeal”);

(ii) Ps’ summons issued on 29 November 2013 to strike out D’s amended defence and counterclaim (“Striking Out Summons”);

(iii) D’s summons issued on 25 March 2014 for retrospective leave for him to file his 7th affirmation on 19 March 2014 (“Leave Summons”).

2. The Appeal was in fact lodged earlier than the Striking Out Summons, but for some reasons, it was fixed for hearing before this court after the hearing for the Striking Out Summons. I will deal with the Appeal first, then the Leave Summons and lastly the Striking Out Summons.

Brief Background

3. The Deceased was a man of substantial wealth. He passed away on 7 July 2009 at the age of 93, survived by his wife, 2 sons and a daughter, and 6 grandchildren (“Grandchildren”). D is the elder son, and the younger son is called Au Yuk Lun, Anthony (“Anthony”). Both Anthony and D are solicitors.

4. The 1st plaintiff (“P1”) is Anthony’s wife and they have 4 children, a son who is the 2nd plaintiff (“P2”) herein, and 3 daughters, one of whom is called Charleen.

5. D has 2 children, namely a son Wilson and a daughter Sarah.

6. The Deceased had executed at least 4 wills:

(i) In 1976, the Deceased executed a will bequeathing all of his properties to Anthony and D only (“1st Will”)[1];

(ii) On 31 October 1977, the Deceased executed a will in English bequeathing all his real and personal property to his wife Madam Leung Sheut Hung, and appointing her the sole executrix of the will (“2nd Will”)[2];

(iii) On 19 July 2002, the Deceased executed a will in English (“3rdWill”), in which he appointed P1, P2 and Charleen as executors and trustees, and devised and bequeathed his residuary estate to the Grandchildren in equal shares[3];

(iv) On 5 September 2008, the Deceased executed a will in Chinese in which he appointed Anthony and D as executors and trustees, and devised and bequeathed his residuary estate to his four male descendants, namely, Anthony and his son P2, and D and his son Wilson in equal shares (“4th Will”).

7. There was no dispute that the 1st Will was revoked by the 2nd Will which was in turn revoked by the 3rd Will, and that the 3rd Will was duly executed in all respects. Neither D nor Anthony was named as beneficiaries under the 3rd Will, but under that will, Anthony’s family would have control of the Deceased’s estate as they would be entitled to two-thirds of the estate.

8. D and Anthony were both named beneficiaries under the 4th Will, and effectively under this will, D and Anthony would have joint control of the Deceased’s estate and each family would be entitled to one half share of the estate.

9. On 24 September 2009, D applied for grant of probate under HCAG 10859 of 2009, claiming to be one of the executors under the 4th Will (“Grant Application”).

10. On 29 March 2010, Ps commenced the present probate action HCAP 7 of 2010 for the pronouncement of the validity of 3rd Will and against the validity of the 4th Will, alleging, among other things, that the Deceased’s signature on the 4th Will was forged, or alternatively, the Deceased did not know or approve the contents of the 4th Will, as he had been suffering from dementia since in or about 2007 (“Probate Action”).

11. D filed his acknowledgment of service on 12 April 2010. Ps filed their affidavit of testamentary scripts on 21 April 2010. Under O 76 r 5 of the RHC, D’s affidavit of testamentary scripts should have been filed on or before 26 April 2010 but he failed to do so.

12. On 14 June 2010, D filed the defence and counterclaim, seeking to pronounce for the validity of the 4th Will.

13. It was not until 12 November 2013 that D took out a summons for an extension of time to comply with O 76 r 5. The hearing was heard on 14 November 2013, and Master Levy granted leave to D to comply with the rule within 7 days (“Order”).

14. On 15 November 2013, D filed an affirmation purportedly to be in compliance with O 76 r 5 (“4th Affirmation”).

15. Ps lodged the Appeal on 26 November 2013, against the Order.

16. It was further Ps’ case that the contents of the 4th Affirmation did not meet the requirements, in that D only deposed to the existence of the 4th Will and nothing else. D had not deposed in the affirmation as to whether any other testamentary scripts (in the form of a draft or otherwise) existed or not, nor had he exhibited the original of the 4th Will in the 4th Affirmation nor lodged the same with the court for filing.

17. Three days after Ps lodged the Appeal, Ps further took out a summons on 29 November 2013 to, among other things, strike out D’s amended defence and counterclaim, or alternatively seek an order that D should have the burden of proof in respect of the due execution of the 4th Will and the physical and mental capacity of the Deceased at the time of the execution of the 4th Will (“Striking Out Summons”).

18. The day before the hearing of the Striking Out Summons, D filed his 7th affirmation, said to be a supplemental affirmation of testamentary scripts (“7th Affirmation”). At that time, D had not sought leave to file his 7th Affirmation.

19. Notwithstanding the filing of the 7thAffirmation, Ps proceeded with the Striking Out Summons, which was first heard before this court on 19 March 2014, and was adjourned part-heard to 2 May 2014. In the meantime, the Appeal came up for hearing on 24 March 2014, during which D undertook to issue a summons seeking retrospective leave to file his 7th Affirmation within 3 days. D was accordingly directed to do so, and all matters were later adjourned to 2 May 2014. D then issued his Leave Summons.

The Appeal

Generally

20. An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. Further, a judge hearing such an appeal is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself, and by so doing, the judge does not fail to exercise the discretion conferred on him[4].

21. There was no written decision of Master Levy, but her reasons could be seen from the transcript as follows[5]:

“Court : So you refuse to let the defendant comply? So that means they don’t need to comply with Order 76, rule 5.

[Ps’ Counsel] : No, no, no, Master … Our view is that there will be some serious consequences arising from them, even if they comply with filing the affirmation …

…

Court : I don’t understand what your objection is? Your objection is they are not allowed … they should not be given any opportunity to comply with Order 76, rule 5?

[Ps’ Counsel] : Without consequences

Court : I don’t understand what you mean by ‘without consequences’ …

Court : … it is unfortunate that in this case the non-compliance by the defendant of Order 76, rule 5, has not been brought to the attention of the court and the plaintiff has not taken any step to compel the defendant to comply. The obligations under Order 76 rule 5 are mandatory on both the Plaintiff and the defendant. Plaintiff counsel, Mr Au, seemed to be objecting this application on the ground that the defendant’s compliance with this rule may bring to some consequences that may further delay the matter. As I have said, since the obligations on both parties are mandatory, this must be done. If there may be further issues arising from this compliance, the matter may be taken further. However, so far as this summons is concerned, it is only a matter of time. Therefore, I order the defendant to comply with Order 76, rule 5, within 7 days.”

22. It was accepted by Ps’ Counsel Mr Kevin Li that Master Levy would have jurisdiction or power to grant an extension of time before the defence and the counterclaim had been filed under O 2 and O 3. The issue was whether Master Levy should exercise such jurisdiction or power after the defence and counterclaim had been filed.

23. Mr Li submitted that although a default in complying with time, being an irregularity, should not nullify any proceedings, where the irregularity was of fundamental nature and involving an application which might involve an order with drastic consequences, a court would be slow to overlook the irregularity and he had referred to paragraph 2/1/1 of the Hong Kong Civil Procedure 2014 Vol 1 (“HKCP”).

24. It was Ps’ case that there had been a fundamental irregularity that was incurable and the Master had no power to grant an extension of time...

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2 cases
  • Choy Po Chun And Another v Au Wing Lun
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • August 1, 2018
    ...Order 76 rule 5 and the plaintiffs’ application to strike out the amended defence and counterclaim. Both were dismissed by a judge ([2014] 4 HKLRD 730). 17. The third instance was the interrogatories served by the plaintiffs on the attesting solicitors who were potential witnesses and the p......
  • Leung Po Po And Another v Olympic Leader International Ltd And Another
    • Hong Kong
    • District Court (Hong Kong)
    • April 19, 2016
    ...not agents of the defendant (As Ms Szeto has helpfully referred the court to paragraph 99 of the judgment in Re Estate of Au Kong Tim [2014] 4 HKLRD 730, the two solicitors were involved in the drafting of the will and were witnesses to the deceased’s execution of the 35. Thus, despite the ......

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