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2015 - 區穎麟的勝利 - 送達給他的爭產案質詢書被鍾安德法官撤銷
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發表於 2015-9-23 15:22
http://alanandersonhk.blogspot.hk/2015/07/Victory-for-Au-Wing-Lun-William-Interrogatores-Served-on-Him-Set-Aside-by-Andrew-Chung-J.html
Victory for Au Wing Lun William - Interrogatories Served on Him Set Aside by Andrew Chung J - 區穎麟的勝利 - 送達給他的爭產案質詢書被鍾安德法官撤銷
http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=99592&currpage=T
http://www.hklii.hk/eng/hk/cases/hkcfi/2015/1283.html
CHOY PO CHUN AND ANOTHER v. AU WING LUN [2015] HKCFI 1283; HCAP 7/2010 (24 July 2015)
HCAP 7/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PROBATE ACTION NO 7 OF 2010
____________
[table] | | IN THE ESTATE OF AU, KONGTIM (區幹恬), late of Flat A, 23rd Floor, Block 12, Provident Centre, No. 43 Wharf Road, North Point, Hong Kong, married man, Deceased |
____________
| BETWEEN | | | | CHOY PO CHUN (蔡寶珍) | 1st Plaintiff | | AU CHADWICK (區卓威) | 2nd Plaintiff | | and | | | AU WING LUN (區穎麟) also known as (區頴麟) and AU WING LUN WILLIAM | Defendant |
____________
| Before: Hon Chung J in Chambers |
| Date of Hearing: 7 July 2015 | | Date of Decision: 7 July 2015 | | Date of Reasons for Decision: 24 July 2015 |
________________________________
REASONS FOR DECISION
________________________________
Introduction
1. There were 4 applications:
(a) the defendant’s application to set aside the interrogatories served earlier by the plaintiffs (“the set aside application”);
(b) the defendant’s application for an order that unless the plaintiffs file and serve their expert report on the deceased’s mental capacity within a prescribed period, they be barred from adducing such expert evidence at trial (“the unless order application”);
(c) the plaintiffs’ application to strike out and/or expunge the defendant’s expert report on the deceased’s mental capacity (“the strike out application”);
(d) the defendant’s application for leave to adduce expert evidence on the deceased’s physical ability (“the expert evidence application”). 2. At the end of the hearing, the following orders were made:
(1) the plaintiffs’ interrogatories were set aside;
(2) an order was made in terms of the unless order application (but 28 days, instead of 14 days, were given to the plaintiffs);
(3) the strike out application was dismissed;
(4) the expert evidence application was dismissed. The reasons for the above are set out below.
Background
3. The parties are the close relatives of the late Mr Au Kong Tim, who passed away in July 2009 (“the dec’d”). The plaintiffs (the dec’d’s daughter-in-law and grandson) commenced this action in March 2010 alleging that they are the executors appointed by (and one of them is one of the beneficiaries named in) an English will made by the dec’d in July 2002 (“the plaintiffs’ 2002 will”).
4. The defendant (the dec’d’s son), on the other hand, alleges that he is one of the executors appointed by (and one of the beneficiaries named in) a Chinese will made by the dec’d in September 2008 (“the defendant’s 2008 will”).
5. The parties further allege that the will relied upon by the opposite side is a forgery and does not evidence the dec’d’s testamentary intention. Further, the plaintiffs allege that the dec’d was physically incapable of signing any documents by the time of the defendant’s 2008 will.
The set aside application
6. It is part of the defendant’s case the defendant’s 2008 will was witnessed by two solicitors, a Mr Yeung (“Yeung”) and a Mr Lau (“Lau”).
7. Relying on RHC Ord 26 rr 1(1), 2(1)(c) and 3(1), the plaintiffs served interrogatories on the defendant on 6 January 2015. Although the defendant was the party served, the plaintiffs intend that the interrogatories are to be answered by the two solicitors themselves by making and filing an affidavit (or affirmation).
8. Two grounds of objection have been put forth by the defendant:
(a) the statute does not provide for potential witnesses themselves to be compelled to answer interrogatories by affidavit;
(b) in any event, the interrogatories served by the plaintiffs are objectionable because they cover matters which ought to be matters of evidence and/or matters for cross-examination. 9. As regards para 8(a) above, the plaintiffs relied heavily on Ord 26 r 2(1)(c) the relevant parts of which read:
“Where interrogatories are served, a note at the end of the interrogatories shall specify … where the interrogatories … are required to be answered by an agent … of a party, which of the interrogatories … an agent … is required to answer, … which agent … ” (emphasis supplied). 10. The plaintiffs argue that the above language shows that a party’s agent can be compelled to answer interrogatories. For the reasons set out below, I disagree with the argument.
11. First, Ord 26 r 1(1) stipulates that interrogatories have to be served on parties, not witnesses or other third parties. The duty to answer interrogatories is provided for by Ord 26 r 2(2):
“a party on whom interrogatories are served shall, … be required to give within the period specified under paragraph (1)(a) answers, … be on affidavit” (emphasis supplied).
12. That the duty to answer interrogatories lies with parties, not witnesses or other third parties can also be discerned from the language used by Ord 26 rr 5(2), 5(3), 6(1) and 6(2). In addition, Atkin’s Encyclopaedia of Court Forms in Civil Proceedings (1968) 2nd Ed, Vol 22, para 8, text to nn, d, f, g and h, said:
“It is the duty of the party answering to answer … to the point of substance … he must answer to the best of his knowledge, information and belief. … a party must always use such means of knowledge as are reasonably available to him in order to answer … For example, where the matters inquired into are such as would be known to the party’s servants or agents in the ordinary course of their employment, he must make inquires of them and give the result of his inquiries. He is not, however, bound to inquire of persons who are no longer his servants or agents or under his control … ” (p 375 thereof). (see similar comments in Atkin’s Court Forms (1980), Vol 22, para 8, text to nn p and q (pp 460-1 thereof))
13. Interrogatories have been replaced in England by “information requests” (Part 18, Civil Procedure Rules). Comments similar to those quoted in para 12 above have been made in relation thereto in Atkin’s Court Forms (2014) 2nd Ed, Vol 15, para 87, text to n 2 (p 308 thereof).
14. The precedent form is also consistent with such a conclusion; see, for example, Atkin’s Court Forms (1996) 2nd Ed, Vol 22(1), Forms 4 (p 532 thereof).
15. In view of the above, I agreed with the defendant and disagreed with the plaintiffs regarding the above first ground (para 8(a) above).
16. I also agreed with the defendant regarding the above second ground (para 8(b))....
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