Tym And Others v Wsp, The Intended Executrix Of The Estate Of Lm, Deceased And Another

CourtFamily Court (Hong Kong)
Judgment Date19 Dec 2016
Judgement NumberFCMP309/2014
SubjectMiscellaneous Proceedings
FCMP309A/2014 TYM AND OTHERS v. WSP, THE INTENDED EXECUTRIX OF THE ESTATE OF LM, DECEASED AND ANOTHER

FCMP 309 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 309 OF 2014

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IN THE MATTER OF the estate of LM deceased

and

IN THE MATTER OF sections 4 and 12 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the Ordinance”)

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BETWEEN

TYM 1st Applicant
LKY 2nd Applicant
LKM, an infant, by her mother and next friend, TYM 3rd Applicant

and

WSP, the Intended Executrix of the estate of LM, deceased 1st Respondent
KO Trading Limited 2nd Respondent

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Coram: Deputy District Judge K K PANG in Chambers (Not Open to Public)
Date of Hearing : 21 November 2016
Date of Judgment : 19 December 2016

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D E C I S I O N
(Variation of Costs Order)

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Introduction

1. By the Judgment dated 19 October 2016 (the “Judgment”), it was ordered nisi that the Applicants were to pay the 1st Respondent the costs of the Hadkinson Application to be taxed if not agreed (the “Costs Order Nisi”).

2. There are before the court two applications:

(1) The Applicants’ Summons dated 2 November 2016 for varying the Costs Order Nisi to the effect that there shall be no order as to costs between the parties notwithstanding the dismissal of the Hadkinson Application;

(2) The 1st Respondent’s Summons dated 4 November 2016 (filed on 21 November 2016) for varying the Costs Order Nisi to the extent that the costs awarded be payable forthwith.

3. In so far as it is necessary but not otherwise, it is not in serious dispute that leave should be given to the parties to take out the said applications out of time.

4. I shall first deal with the Applicants’ application.

The Applicants’ case

5. The grounds of the Applicants’ application are as follows:

(i) The court should take into account the conduct of the parties and overall justice in the exercise of its discretion on the question of costs.

(ii) The court should take into account the special feature of the Hadkinson Application that it was taken out to enforce the Consent Order dated 6 March 2016 (the “Consent Order”).

(iii) The Applicants did not have any other effective means to enforce the Consent Order.

(iv) The question of costs should not be approached on the over-simplistic basis of costs follow the event. Due regard should be given to the question of whether the Hadkinson Application was reasonably taken out by the Applicants.

(v) In face of her non-compliance, it was the 1st Respondent’s burden to explain about the default.

(vi) The Applicants were entitled to take active steps to enforce the consent Order.

(vii) The 1st Respondent’s consent to the making of the Consent Order was akin to an undertaking to the court and the Applicants that the estate of the Deceased had the means to pay and would pay the periodical payments.

(viii) It was reasonable for the Applicants to assume that, at all material times, the 1st Respondent had the means to comply with the Consent Order but wilfully refused to do so.

(ix) Notwithstanding that the court held that the 1st Respondent had adopted the “open position” that the estate of the Deceased did not have the cash flow to pay the interim periodical payments:

(a) The Applicants had disputed such stance before the Consent Order was made.

(b) After the making of the Consent Order, the Applicants could legitimately expect that the issue on the estate of the Deceased’s ability to pay had already been spent by the doctrine of merger, i.e. the 1st Respondent had practically admitted/conceded about the estate of the Deceased’s ability to pay.

(c) In such circumstance, the Applicants could reasonably assume the estate of the Deceased’s ability to pay and such matter should not be re-litigated during the Hadkinson Application.

(d) Moreover, even according to the Profit and Loss Statements produced by the 1st Respondent, Cheung Fat had an annual business turnover of more than HK$3M. Such fact alone could cast reasonable doubt on whether the estate of Deceased was truly short of cash flow.

(x) Despite that, after the 1st Respondent defaulted in her payment in July 2015, the Applicants repeatedly chased for an explanation, the 1st Respondent refused to give an explanation.

(xi) It was only until the letter dated 19 April 2016 that she barely asserted that the estate of the Deceased was short of cash. Although it would be necessary to apply to vary the Consent Order in the circumstance, she did not make any application for variation.

(xii) From the above, it was submitted that the conduct and behaviour of the 1st Respondent were deplorable and could reasonably give rise to an adverse inference that the 1st Respondent was in wilful disregard of the Consent Order;

(xiii) The 1st Respondent was unresponsive from the Applicants’ request for documentary evidence of the financial situation of Cheung Fat’s business.

(xiv) The Applicants’ inability to discharge the burden to adduce evidence to establish the 1st Respondent’s contempt was indeed caused by her non-disclosure. For such reason, it was not entirely correct to put the blame on the...

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