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CACV 239/2018
[2018] HKCA 759
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 239 OF 2018
(ON APPEAL FROM HCMP 3186/2016)
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IN THE MATTER OF the estate of CHAN CHUNG HAN (陳仲嫺) also known as CHAN CHUNG HONG (陳仲嫺) late of Flat 907, 9th Floor, Kent Mansion, Nos 97 Tin Hau Temple Road, North Point, Hong Kong, Married Woman, deceased |
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and |
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IN THE MATTER OF the Grant of Letters of Administration No 11355 of 2013 |
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and |
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IN THE MATTER OF Section 33(3) of the Probate and Administration Ordinance, Cap 10 |
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BETWEEN
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TSANG WING KWAI |
Plaintiff |
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and |
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TSANG WING FAI |
Defendant |
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| Before: Hon Lam VP and Poon JA in Court |
| Dates of Written Submissions: 8, 17, 21 and 28 August 2018 |
| Date of Judgment: 26 October 2018 |
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
Introduction
1. In this appeal, the Defendant sought to reverse the judgment of W Chan J on 21 May 2018. In the judgment, the Judge granted relief to the Plaintiff as follows (“the Order”):
“ H. Conclusion
46. For the reasons set above, I order as follows: –
(1) The defendant do within 14 days provide the plaintiff with a true and perfect inventory and account of the Estate (“the Account”) as verified on affirmation.
(2) The defendant do within 14 days thereafter allow the plaintiff and/or his legal representatives to inspect all supporting documents in relation to the Account and allow the plaintiff to take copies thereof.
(3) The defendant shall be removed as the executor of the Estate of the Deceased.
(4) The parties may within 14 days and in writing submit their respective nominations of professional accountant, if any, for appointment as the executor of the Estate of the Deceased (together with their curriculum vitae and normal level of charges) for the Court’s consideration.
(5) Sub-paragraph (3) above shall take effect upon the actual appointment of the new executor of the Estate by the Court, which shall be made on paper.
47. Further, I order that the defendant shall personally pay the plaintiff the costs of and occasioned by these proceedings, which shall be taxed, if not agreed.
48. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.”
2. The Defendant served the notice of appeal on 19 June 2018. A few days later, on 22 June 2018, the Defendant took out a summons seeking a stay of the Order (“the June Summons”).
3. The June Summons (together with another summons concerning costs) came before the Judge on 27 June 2018. Counsel for the Defendant described the hearing of 27 June 2018 in his skeleton submissions (26 June 2018) as a call-over hearing and proposed certain directions. Accordingly, the Judge adjourned the June Summons to a date to be fixed for 3 hours’ substantive argument with directions for the filing of evidence.
4. Counsel for the Defendant then made an application for an interim stay pending the hearing of the substantive argument. That application was opposed and counsel for the Plaintiff offered undertaking to indemnify the estate for the costs and reasonable expenses for engagement of professional accountant as executor in place of the Defendant and to fortify such indemnity by paying $1.5 million into court. The Judge refused to grant such a stay (other than a short stay of 21 days to give time to the defendant to apply for similar relief before this Court).
5. On 13 July 2018, the Defendant issued a summons in this appeal seeking an interim stay pending the substantive determination of the stay summons by the Judge (“the July Summons”). There was no application to this Court seeking an expedited hearing of the July Summons. It was therefore processed in accordance with the procedures in PD 4.1 paragraph 36.
6. In the meantime, the short interim stay granted by the Judge expired on 18 July 2018. Though the Defendant had issued a summons on 18 July 2018 (scheduled to be heard on 10 September 2018) seeking extension of that interim stay, that application was withdrawn by a consent summons of 5 September 2018.
7. Based on nominations provided by the parties, the Judge appointed Ms T Wong of KPMG as the executrix of the estate on 13 August 2018. Thus, since that date, the substantive relief granted by virtue of Order (except the provision for costs) have been fully implemented and the estate has been under the administration by the new executrix.
8. On 18 July 2018, representatives of the parties attended the Listing Officer to fix a date for the hearing of substantive argument of the June Summons before the Judge. Notwithstanding that dates in December 2018, January, February and April 2019 were offered, the parties could only agree to have the June Summons heard on 11 June 2019.
9. As for the progress of the appeal, on 14 August 2018 the appeal was fixed to be heard on 11 January 2019 with the agreement of the parties.
10. Submissions were lodged by counsel in accordance with PD 4.1, the last round of submissions being those of Mr Man SC (together with Mr Wong) on behalf of the Defendant of 28 August 2018. Previously, Mr Man lodged one set of submissions on 8 August 2018 and a set of supplemental submissions on 17 August 2018. Mr Ho SC (together with Mr Yuen) lodged submissions on behalf of the Plaintiff on 21 August 2018.
11. Solicitors for the Defendant also wrote to the Court on 21 and 28 August 2018 attaching additional documents: transcript of the hearing before the Judge on 4 April 2018 and skeleton argument at the call-over hearing. For reasons below, we do not find it necessary to refer to the transcript though we take note of the skeleton argument of counsel for the Defendant at the call-over hearing.
12. It is against the above background that the July Summons is considered by this Court. Having read the submissions and the papers, we are of the view that the application is suitable for being processed on the papers without any oral hearing pursuant to Order 59 Rule 14A.
Disposal of the July Summons
13. From the procedural history of the case recited above, it is plain that the Defendant is trying to ask this Court to re-examine the decision of the Judge on 27 June 2018 refusing to grant interim interim relief.
14. There is disagreement between counsel as to the proper approach to the July Summons that this Court should adopt. Mr Man submitted that this Court should approach it on the basis that it was a renewed application for stay of execution in the exercise of our concurrent jurisdiction under Order 59 Rule 13, Rules of the High Court. On the other hand, Mr Ho submitted that this Court should not interfere with a decision on interim interim relief unless it is extremely plain that the Judge had erred in his decision to withhold such relief. In this respect, Mr Ho relied on a line of recent authorities: NPYJ v SMRC [2018] 1 HKLRD 573; China Shanshui Cement Group Ltd v Zhang Caikui [2018] HKCA 409; Symphony Partners Ltd v Fullerton Bay Investment Ltd [2018] HKCA 505.
15. In our judgment, for the following reasons, the proper approach in the present circumstances is the one set out in NPYJ v SMRC [2018] 1 HKLRD 573 and China Shanshui Cement Group Ltd v Zhang Caikui [2018] HKCA 409:
(a) Though in those cases the applications were brought before this Court by way of seeking leave to appeal against the lower court decisions, the rationale for the approach is that it involves an interim interim relief which is meant to cover the situation pending the opportunity for full consideration of the substantive application;
(b) The relief sought in the July Summons is for interim stay pending the determination of the June Summons. The latter Summons is still extant before the Judge;
(c) Whilst we would have further things to say about the listing of the June Summons for hearing on 11 June 2019, it remains the position that the Defendant is not seeking to have this Court to determine the substantive stay application. As the application presently before us, this Court is not asked to exercise its concurrent jurisdiction on a stay application as that decision is reserved (by the extant application by virtue of the June Summons) for the Judge. The relief sought is clearly an interim interim measure;
(d) Hence, the rationale of NPYJ v SMRC, supra and China Shanshui Cement Group Ltd v Zhang Caikui, supra, is applicable;
(e) Order 59 Rule 13 gives this Court the concurrent jurisdiction to entertain a substantive stay application. Such jurisdiction, in accordance with Order 59 Rule 14(4), should not be made in the first instance to this Court. It is only when there are special...
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