Lau Kin Wing Ken And Another v Deng Yujiao One Of The Proving Executors Of The Estate Of Lau Heung, Deceased And Another

CourtCourt of Appeal (Hong Kong)
Judgment Date27 September 2019
Neutral Citation[2019] HKCA 1086
Subject MatterCivil Appeal
Judgement NumberCACV49/2018
CACV49A/2018 LAU KIN WING KEN AND ANOTHER v. DENG YUJIAO One of the Proving Executors of the Estate of Lau Heung, Deceased AND ANOTHER

CACV 49/2018

[2019] HKCA 1086







IN THE ESTATE OF LAU HEUNG (劉享) late of Flat A, 2nd Floor, Besthing Garden, 35 Cheung Ning Street, To Kwa Wan, Kowloon, Hong Kong, retired, deceased (“the Deceased”)



LAU KIN WING KEN 1st Plaintiff
LAU LAI HAR 2nd Plaintiff
One of the Proving Executors of the Estate of Lau Heung, Deceased
1st Defendant
One of the Proving Executors of the Estate of Lau Heung, Deceased
2nd Defendant


Before: Hon Lam Ag CJHC, Yuen and Au JJA in Court
Dates of Written Submissions: 14, 16, 27 and 28 August 2019
Date of Judgment: 27 September 2019




Hon Lam Ag CJHC (giving the Judgment of the Court):

1. Since we handed down our main judgment on 11 July 2019 dismissing the appeal, 2 summonses were issued in relation to the costs order nisi at [94] of the judgment. The costs order nisi was that the Plaintiffs shall pay the costs of the appeal with certificate for two counsel. The summonses are as follows:

(a) A summons of the Defendants of 23 July 2019 seeking variation of the costs order nisi so that (i) the costs of the appeal be paid by the Plaintiffs to the estate with certificate for 2 counsel; and (ii) Defendants’ own costs be paid out of the estate to be taxed on trustee basis with certificate for 2 counsel.

(b) A summons of the Plaintiffs of 1 August 2019 seeking extension of time to vary the costs order nisi so that the Plaintiffs would bear their own costs of the appeal but not the Defendants’ costs.

2. The Plaintiffs need an extension of time for their summons because it was taken out beyond the period prescribed under Order 42 Rule 5B(6). However, as Mr So submitted (on behalf of the Plaintiffs), in light of the summons of the Defendants of 23 July 2019, the costs order nisi did not become absolute. In light of the circumstances leading to the delay on the part of the Defendants as set out in their affirmations and the short duration of the delay (7 days), we grant the extension of time to the Plaintiffs.

3. From the written submissions lodged by counsel, the following are the crucial issues for the determination of these summonses:

(a) The general approach on costs when a party having unsuccessfully challenged a will in a probate action further brought an appeal against the first instance judgment and failed again in the appeal;

(b) In the present circumstances, bearing in mind the general approach, whether the Plaintiffs should be ordered to pay the costs of the appeal.

4. The general approach for costs in a probate action was discussed by Ribeiro PJ in Nina Kung v Wong Din Shin (No 2) (2006) 9 HKCFAR 800. It has subsequently been applied by the Court of Final Appeal in Tam Mei Kam v HSBC International Trustee Ltd (2011) 14 HKCFAR 512 where Bokhary PJ summarized the principles as follows at [48]:

“ (1) The general rule that costs should follow the event applies where a party has unsuccessfully raised opposition to a will. Spiers v English [1907] P 122; Re Cutcliffe’s Estate [1959] P 6; Nina Kung v Wang Din Shin, (2006) 9 HKCFAR 800.

(2) There are two exceptions to the general rule. The first is where the litigation is caused by the conduct of the testator or the residuary beneficiary: the costs of the litigation would normally come out of the estate. This is not the case here. The second exception is where the circumstances are such that there are reasonable grounds for opposing the will: the court would allow good cause to be shown why the general rule should not apply. In such a case, the unsuccessful party will not usually be condemned in costs, although he may not be given his costs out of the estate. See Williams, Mortimer and Sunnucks on Executors, Administrators and Probate 19th ed. paragraph 40-06. Mitchell v Gard (1863) 3 Sw. & Tr. 275; Spiers v English; and Nina Kung v Wang Din Shin, paragraphs 11 to 14.

(3) Where the opposing party goes beyond putting the proponent of the will to strict proof of its validity, such as putting forth a positive case of, say, undue influence, fraud or forgery, the litigation becomes hostile. In such a case, the general rule applies and if he is unsuccessful, he will be ordered to pay the costs of the other party. This is to ensure that a party would not unjustifiably challenge the will with the hope that the costs of doing so will be borne by the estate or the other party. Mitchell v Gard, at 279. See also Nina Wang v Wang Din Shin, paras 15 to 17.

(4) Where the opposing party having failed to challenge the will before the judge takes the matter on appeal, there is little or no reason why this should not be regarded as hostile litigation or why he should not be ordered to pay the costs of the other parties to the appeal (on a generous basis, if necessary), if he turns out to be unsuccessful.”

5. These are the general principles. However, as costs are ultimately a matter of discretion, the principles must be applied in light of the circumstances of the case. In this regard, in respect of proposition (4) above, the reasons for an appeal being dismissed can vary. Whilst we respectfully agree that with the failure at the court below an appeal can generally be regarded as hostile litigation, there could occasionally...

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