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Kwan Chui Kwok Ying And Another v Tao Wai Chun And Others

Judgment Cited authorities 1 Cited in 1 Precedent Map Related
Vincent
Judgment Date17 December 2007
Year2007
Citation[2008] 2 HKLRD 63
Judgement NumberCACV296/2006
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000296A/2006 KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

CACV 296/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 296 OF 2006

(ON APPEAL FROM COURT OF FIRST INSTANCE HCMP NO. 2996 OF 1990)

______________________

BETWEEN

KWAN CHUI KWOK YING 1st Plaintiff
KWAN SAU HANG SUZANNA 2nd Plaintiff
and
TAO WAI CHUN 1st Defendant
KWAN SAU SAN SUSAN 2nd Defendant
KWAN SAU FUN SYLVINE 3rd Defendant
KWAN WAI ON LAWRENCE 4th Defendant
KWAN LAI ON WARREN 5th Defendant
KWAN CHI ON 6th Defendant
KWAN SAU YUNG 7th Defendant
KWAN SAU KI 8th Defendant
KWAN TONG ON JOHN 9th Defendant
KWAN CHEE ON also known as JOHN KUAN YANG 10th Defendant
KWAN YAN ON KENNETH 11th Defendant
KWAN YEE ON (a bankrupt) 12th Defendant
KWAN KWOK ON 13th Defendant
KWAN SAU WO WINNIE 14th Defendant
KWAN TIN ON DANIEL 15th Defendant
KWAN KIN ON NORRIS 16th Defendant

THIRD PARTY PROCEEDINGS

BETWEEN:

KWAN CHI ON 6th Defendant
and
KWAN TIT ON DANIEL 15th Defendant

______________________

Before : Hon Cheung, Yeung JJA and Chung J in Court

Date of Hearing : 11 December 2007

Date of Judgment : 11 December 2007

Date of Reasons for Judgment and Judgment on Costs : 17 December 2007

____________________________

REASONS FOR JUDGMENT

____________________________

Hon Cheung JA :

The costs orders

1. On 30 May 2006, Deputy High Court Judge To made costs orders in favour of the 15th defendant against the 6th defendant in respect of the Third Party Proceedings brought by the 6th defendant against the 15th defendant.

2. The main action was in respect of the probate of the estate of Mr. Kwan Kai Ming deceased (‘the deceased’). The 6th and 15th defendants are the natural sons of the deceased and their mother Madam Wong Woon Wan (‘Madam Wong’). The 6th defendant persistently denied that the 15th defendant is a natural son of the deceased and commenced the Third Party Proceedings against him.

3. On 30 December 1994, Patrick Chan J (as he then was) dismissed the 6th defendant’s claim with costs (‘the 1994 trial’). However, this was reversed by the Court of Appeal and a re-trial was ordered. Judge To handled the re-trial.

4. On 4 October 2001 Judge To dismissed the 6th defendant’s action against the 15th defendant and granted a declaration that the 15th defendant is the legitimate child of the deceased and Madam Wong.

5. The costs orders made by Judge To were :

(1) the costs of and occasioned by the 1994 Trial before Patrick Chan J in 1994 be paid by D6 to be taxed on an indemnity basis with certificate for two counsel, if not agreed;
(2) the costs of the appeal to the Court of Appeal in 1995 be paid by D6 to be taxed on an indemnity basis with certificate for two counsel, if not agreed;
(3) unless otherwise provided for, the costs of preparation for the re-trial from 3 November 1995 until 10 May 1999, including all costs reserved if any, be paid by D6 to be taxed on an indemnity basis, if not agreed;
(4) unless otherwise provided for, 75% of the costs of preparation for the re-trial from 11 May 1999, including all costs reserved if any and the costs of the present costs hearing be paid by D6 to be taxed on an indemnity basis, if not agreed;
(5) the costs awarded under item (1) shall be with interest from 3 January 1995; the costs awarded under item (2) shall be with interest from 3 November 1995; and the costs awarded under item (3) and such of the costs awarded under item (4) which were incurred on or before 4 October 2001 shall be with interest from 4 October 2001;
(6) 50% of the total of Dl5’s costs taxed or agreed in accordance with items (1) to (4) above not inclusive of interest be borne by and paid out of the estate of Kwan Kai Ming; and
(7) upon recovery of the costs from D6, D15 shall reimburse the estate of Kwan Kai Ming with 50% of the costs so recovered not inclusive of interest.

Judge To further ordered that, for the avoidance of doubt, Patrick Chan J’s order made on 3 January 1995 in dismissing D15’s counterclaim with costs to D6 to be taxed on party and party basis remains valid.

Leave to appeal not obtained

6. On 29 August 2006 the 6th defendant served the Notice of Appeal in respect of the costs orders made by Judge To.

7. At the hearing of the appeal we invited the parties to deal with the preliminary point on whether the appeal was properly constituted in the first place.

8. Section 14(3)(e) of the High Court Ordinance (Cap. 4) clearly states that :

‘ No appeal shall lie ─
(e) without the leave of the court ... or of the Court of Appeal, from an order of the Court of First Instance ...
...

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