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Lyyc v Chl And Csms, The Executrices Of The Estate Of Cgsk Also Known As Cskg, Deceased

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date17 May 2022
Neutral Citation[2022] HKCFI 1431
Year2021
Judgement NumberHCMP683/2021
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP683/2021 LYYC v. CHL and CSMS, the Executrices of the Estate of CGSK also known as CSKG, Deceased

HCMP 683/2021

[2022] HKCFI 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 683 OF 2021

________________________

IN THE ESTATE OF CGSK also known as CSKG, late of Flat ABC, G Road, Hong Kong, deceased (“the Deceased”)
and
IN THE MATTER OF Sections 3 and 4 of the Inheritance (Provisions for Family and Dependents) Ordinance (Cap 481)

________________________

BETWEEN

LYYC Applicant
and
CHL and CSMS, the Executrices of the Estate of CGSK also known as CSKG, Deceased Respondents

________________________

Before: Hon B Chu J in Chambers (Not Open to Public)

Date of Hearing: 21 April 2022

Date of Applicant’s Reply Submission: 29 April 2022

Date of Decision: 17 May 2022

________________________

DECISION

(LITIGATION FUNDING)

________________________


Introduction

1. The Applicant issued her summons on 27 October 2021 for litigation funding (“Summons”)[1] and sought:

(1) an order that subject to the Applicant’s certain undertakings filed previously in FCMP 223/2017 (“Undertakings”)[2], the Respondents, ie the estate of the Deceased (“Estate”) to pay a sum of HKD 4,673,225 to the Applicant’s solicitors as litigation funding within 14 days from the date of the order, and for the avoidance of doubt, the interim financial support in paragraph 1(a) of the Order of Judge Melloy of 20 October 2020 in FCMP 223/2017 (“Melloy Order”)[3] shall continue to be in force (“Relief (1)”);

(2) the order of this Court of 16 June 2021 made by consent (“Consent Order”) to stand dismissed (“Relief (2)”).

2. The Consent Order referred to in Relief (2) above provides that subject to the Undertakings, the Estate to continue to pay HKD 38,000 per month to the Applicant’s solicitors as litigation funding with effect from 1 June 2021 until trial, and that for the avoidance of doubt, the interim financial support as per Paragraph 1(a) to continue to be in force.

Relevant procedural matters

3. The originating summons in these proceedings (“OS”) was issued in the Family Court on 2 November 2017 under FCMP 223/2017 for financial provision for the Applicant under sections 3, 4 and 7 of the Inheritance (Provisions for Family and Dependents) Ordinance, Cap 481 (“Cap 481”). On 19 November 2019, the Applicant issued a summons for “interim maintenance payment” pending the final determination of the OS.

4. Judge Melloy handed down a judgment on interim financial support including litigation funding on 20 October 2020 (“Melloy Judgment”)[4] pursuant to which the Melloy Order was made. Under paragraph 1 of the Melloy Order, and subject to the Undertakings, the Estate is ordered to pay to the Applicant:

“(a) HKD 55,000 per month for her interim financial support, such sum to be increased to HKD 92,500 per month with effect from 1 January 2021, to allow for the additional sum of HKD 37,500 per month for the mortgage repayments (“Paragraph 1(a)”);

(b) HKD 38,000 per month to the Applicant’s solicitors as litigation funding with effect from 1 November 2020 until the financial dispute resolution (“FDR”) hearing or trial, in the event that there is no FDR hearing[5](“Paragraph 1(b)”).

(emphasis added)

5. The FDR took place before Judge Melloy on 10 May 2021 but unfortunately there was no settlement. On the same day, the proceedings were transferred up to this Court by Judge Melloy.

6. On 10 June 2021, the parties agreed to the terms of the Consent Order and that the Estate was to continue to pay the sum ordered in Paragraph 1(b) of the Melloy Order for the litigation funding from 1 June 2021 until trial.

7. After transfer up, the OS was first fixed before this Court on 28 July 2021 for directions (“Directions Hearing”). It was on that day that a 10 day trial was fixed to commence on 5 December 2022 (“Trial”) and a pre-trial review hearing (“PTR”) was fixed on 19 July 2022. Counsel Mr Jeremy Chan appeared for the Applicant and Ms Theresa Chow appeared for the Estate at the Directions Hearing, during which Ms Chow indicated to this Court that Mr Bernard Man SC would be leading Ms Chow at the trial for the Estate.

8. The Summons was initially fixed for argument on 8 March 2022 but due to a dispute between the parties in relation to the fixing of that hearing date, and due to the then pandemic situation, the hearing date was vacated and the Summons was directed by this Court to be dealt with on papers with directions for the lodging of written submissions.

9. The Applicant’s written submissions by her counsel Mr Jeremy Chan were lodged on 8 February 2022 and the Estate’s by their counsel Ms Theresa Chow were lodged on 22 February 2022 (referred to respectively as each party’s “1st Submissions”).

10. It was pointed out in the Estate’s 1st Submissions that the Consent Order was arrived at by the parties’ agreement which, as argued on behalf of the Estate, demonstrated the quantum therein was wholly appropriate and just. The Estate was relying on res judicata and that the Court would be discharged from the duty of further investigating the matter. It was further submitted on behalf of the Estate that the Summons was an abuse of process referring to Henderson v Henderson (1843) 3 Hare 100. In order words, it appeared that it was being submitted on behalf of the Estate that the Applicant should be estopped/barred from making any application for further litigation funding by reason of the Consent Order.

11. In any event, as it was not stated in the margin of the Summons which statutory provisions the Summons was made under[6], this Court was not clear which statutory provision or jurisdiction the Applicant was relying on for seeking Relief (2), namely for a dismissal of the Consent Order.

12. In light of the above , on 24 March 2022, the Court directed the parties to lodge further written submissions[7].

13. In response thereto, the Applicant’s solicitors Messrs Withers sent a letter to the Court to say “With the intention of saving both time and costs (this is especially so when the submissions on the upward variation itself was only 5 pages long) and without going into the merits of whether this Court has to jurisdiction to [dismiss the Consent Order]”, instead of filing further supplemental submissions, the Applicant sought leave to amend the Summons instead. The Applicant’s solicitors had set out their proposed amendments in their said letter (“1st Proposed Amendments”)[8].

14. As pointed out by the Estate’s solicitors Messrs Ip & Heathfield, where in the original Relief (1) sought by the Applicant, she was seeking a fresh order for legal costs, by the 1st Proposed Amendments to Relief (1), the Applicant appeared to be seeking an upward variation of the Consent Order. The Estate’s solicitors pointed out that there would be different facts and legal principles which were relevant in such an amendment, and in light of this, if the Court were to grant leave, there should be further directions for submissions to be lodged.

15. Messrs Withers then replied by saying they did not agree that there was any distinction between an “upward variation” and a “fresh order”. This cannot be correct.

16. Having considered the various exchanges of correspondence between Messrs Withers and Messrs Ip & Heathfield, by a letter dated 31 March 2022, this Court pointed out that the issue raised by the Estate was whether the Court could vary and/or dismiss a consent order under Cap 481 and this Court would need further submissions on this issue. Having regard to the matter and the imminent ending of GAP, this Court directed the Summons be refixed for a remote hearing[9].

17. Subsequently, the parties agreed to the Applicant filing an amended summons deleting the Relief (2) she was seeking, namely the dismissal of the Consent Order (“Amended Summons”)[10]. In other words, the Applicant decided not to seek any amendment to Relief (1), or the “upward variation” as set out in her 1st Proposed Amendments.

18. During the remote hearing, the Applicant made it clear she was seeking a “fresh order”, or a “further order” for legal cost provision and that she was no longer seeking to replace or to vary the Consent Order which should continue as it is, and having taken into account the amounts which would continue to be paid under Paragraph 1(b) of the Consent Order, the Applicant sought a sum of HKD 4,369,225 or any other sum the Court may determine on top of the monthly HKD 38,000 in Paragraph 1(b) in the Melloy Order until trial.

19. The Estate however complained that the quantum sought by the Applicant at the hearing was again different from that stated in the Amended Summons. Leave was then granted to the Applicant to re-amend the Amended Summons to reflect the quantum sought or any other sum that the Court may determine (“Re-Amended Summons”). The Applicant also sought an adjournment and applied for time to lodge reply submissions to the Estate’s Supplemental Submissions. This was granted.

20. Counsel Mr Jeremy Chan appeared for the Applicant and Ms Lareina J Chan appeared for the Estate at the remote hearing.

Discussion

21. To begin with, I accept that there is a distinction between section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (“MPPO”) in relation to maintenance pending suit and section 7 of Cap 481 in relation to interim orders.

22. Section 7 of Cap 481 provides as follows:

“7. Interim orders

(1) Where on an application for an order under section 4 it appears to the court—

(a) that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made under that section; and

(b) that property forming part of the net estate of the deceased is or can be made...

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