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CAMP 31/2019
[2019] HKCA 521
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 31 OF 2019
(ON AN INTENDED APPEAL FROM FCMP 223/2017)
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IN THE ESTATE OF CGSK also known as CSKG, late of Flat ABC, G Road, Hong Kong, deceased (“the Deceased”) |
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and |
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IN THE MATTER OF Section 3 and 4 of the Inheritance (Provisions for Family and Dependents) Ordinance (Cap 481) |
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BETWEEN
| LYYC |
Applicant |
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| CHL & CSMS, the Executrices of the Estate of CGSK also known as CSKG, Deceased |
Respondents |
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Before: Hon Lam VP and Au JA in Court
Dates of Written Submissions: 21 February and 7 March 2019
Date of Judgment: 14 May 2019
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
Introduction
1. By a summons dated 21 February 2019 (“the Summons”), the Respondents renewed the application for leave to appeal against the decision of HH Judge Melloy (“the Judge”) dated 8 January 2019 ([2019] HKFC 7; “the Striking Out Decision”).
2. By the Striking Out Decision, the Judge dismissed the Respondents’ application for striking out the Applicant’s originating summons made under the Inheritance (Provisions for Family and Dependents) Ordinance (Cap 481) (“the Ordinance”). On 15 February 2019, the Judge refused to grant the Respondents leave to appeal against the said decision ([2019] HKFC 39; “the Leave Decision”).
3. Together with the Summons, the Respondents lodged a written statement in support of the application in pursuance of the Practice Directions 4.1.
4. The Applicant lodged a statement in opposition on 7 March 2018.
5. Having considered the documents placed before us together with the parties’ written statements, we are of the view that the matter is suitable for determination without any oral hearing.
Background
6. The Respondents are the executrices of the estate of the Deceased, a wealthy businessman who passed away on 20 July 2016. The Applicant was the Deceased’s secretary and personal assistant.
7. It is the Applicant’s case that she and the Deceased had developed an intimate relationship and the Deceased had financially supported her and her family. According to the Applicant, the Deceased had made various inter vivos gifts to her during his life time. He also made financial arrangement for her and her family after his death.
8. The Respondents vigorously dispute that there was any romantic relationship between the Applicant and the Deceased. Furthermore, the Respondents seek to strike out the Applicant’s claim for maintenance on the ground that the Applicant does not fall within the category of “any person … who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased” under s.3(1)(ix) of the Ordinance.
9. The Judge heard the striking out application on 19 September 2018. In her decision, the Judge took the view that, in light of the factual dispute between the parties, it would not be appropriate for the court to come to a decision based on affidavit evidence. The Judge did not find it appropriate to resolve if there should be a wide or narrow construction of the phrase “immediately before his death” in the section.
Grounds of Appeal
10. According to the draft notice of appeal annexed to the Summons, the grounds of appeal on which the Respondents seek to rely may be summarized as follows:
(1) The Judge erred in failing to have regard to the undisputed facts and evidence that payments ceased to be advanced to the Applicant since September 2013, i.e., almost 3 years before the death of the Deceased;
(2) The Judge erred in failing to hold the Applicant was neither wholly nor substantially maintained by the Deceased; and
(3) The Judge erred in failing to consider that the legal argument concerning the construction of the phrase “immediately before his death” did not necessitate a full trial.
Legal principles
11. The legal principles for granting leave to appeal are well established. Leave would not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice that the intended appeal should be heard by the Court of Appeal: see s.14AA of the High Court Ordinance (Cap. 4).
12. Equally well established are the legal principles for the exercise of the court’s summary power to strike out. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim...
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