CHENG TANG KAM YUNG v. TANG KAM CHEUNG AND ANOTHER

CACV185/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2013

(ON APPEAL FROM HCMP NO. 147 OF 2008)

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J U D G M E N T
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Hon Cheung JA:

1. I agree with the judgment of Yuen JA.

Hon Yuen JA:

2. This is an appeal from the order of DHCJ Simon Leung made on 26 August 2013 ordering that the 1^st defendant (on behalf of himself and as representative of the estate of the 2^nd defendant) be removed as the administrator of the estate of Tang Chung Shau alias Tang Chun Fat (“the Deceased”), such order to take effect upon the appointment of a new administrator by the court pending the 1^st defendant’s submission within 14 days of his nomination of a professional accountant for appointment as administrator.

3. On 9 September 2013 the 1^st defendant (on behalf of himself and as representative of the estate of the 2^nd defendant) filed a Notice of Appeal from that order and issued a summons for stay of execution.  He did not submit a nomination.

4. On 10 October 2013 the judge dismissed the summons for stay and appointed David Yen Ching Wai an accountant with Ernst and Young as administrator of the Deceased’s estate in place of the 1^st and 2^nd defendants. 

5. Apart from the appeal, there was also before us a summons issued by the 1^st defendant on 12 November 2015 for leave to adduce fresh evidence on appeal.  We have considered the documents de bene esse.

Application for stay

6. After the judge refused a stay on 10 October 2013, the 1^st defendant (on behalf of himself and as representative of the estate of the 2^nd defendant) applied for a stay from this court.  On 5 December 2013 Chu JA dismissed his application.  There were further proceedings consequential thereto which are not material to this Judgment.

Background

7. For the purposes of the 1^st defendant’s argument on appeal, it suffices to summarize the background (as disclosed in the documents before this court) as follows.

8. The Deceased was the husband of the 2^nd defendant, with whom he had two children, a son (the 1^st defendant) and a daughter (the plaintiff).  The Deceased died on 15 July 1998, leaving a sizeable estate including a number of lots of land in the New Territories.

9. In 2000, a probate action (HCAP3/2000) was commenced in which the 2^nd defendant, the 1^st defendant and the plaintiff in these proceedings were the plaintiffs and Ng Mei Kun and Tang Ieng Kit were the defendants. 

10. On 7 November 2003 a Tomlin order was made that Letters of Administration be granted to the 2^nd defendant, the schedule to the order including a term that for the purpose of distribution of the Deceased’s estate, “the Plaintiffs [in HCAP3/2000] shall not challenge the claim by the 2^nd Defendant [Tang Ieng Kit] that he is a son of the Deceased and entitled to a share of the estate in such capacity”.

- Letters of Administration 

11. On 1 December 2004 Letters of Administration were granted to the 1^st and 2^nd defendants.

- Registration

12.1.  On 17 January 2005 the Letters of Administration were registered in the Yuen Long New Territories Land Registry in respect of 21 lots of land owned by the Deceased.

12.2.  On 23 August 2007 the Letters of Administration were registered in the Yuen Long New Territories Land Registry in respect of 2 further lots of land owned by the Deceased.

12.3.  All these lots are referred to collectively in this Judgment as “the lots”. 

13.1.   In respect of the lots,

-  the memorials for registration showed under the column for “Status of parties (Assignor/Assignee)” that the status of the 1^st and 2^nd defendants were “the Administrators”;

-  the “Owner Particulars” in the Land Registry also showed under the column for “Capacity” that the capacity under which the 1^st and 2^nd defendants held the lots was as “Administrator”. 

13.2.  This is relevant to the 1^st defendant’s argument in the appeal before us which will be discussed later in this Judgment.

Originating Summons

14. In March 2006, the plaintiff acting through solicitors sought accounts from the 1^st and 2^nd defendants.  She was not provided with any.

15. Eventually on 30 January 2008 the plaintiff issued an Originating Summons seeking accounts and insofar as may be necessary, administration of the Deceased’s estate.

16. It would appear that in November 2008, a master ordered accounts for the period commencing from the Deceased’s death (15 July 1998) to 31 March 2008 which accounts were verified by the 1^st defendant on oath in March 2009.

17. In October 2011 the 2^nd defendant died.  By an order of 27 December 2012, the 1^st defendant was ordered to represent her estate.

18. In the meantime on 21 November 2012, the plaintiff issued a summons for the replacement of the 1^st defendant as administrator of the Deceased’s estate.  This was the matter which was heard by DHCJ Leung on 26 June 2013 (at which hearing the 1^st defendant was represented by counsel), from whose order this is the appeal.

DHCJ Leung’s judgment

19. On 26 August 2013 the judge gave judgment in favour of the plaintiff and made the order set out in paragraph 2 of this Judgment.  His reasons appear in the written judgment and they will not be repeated or discussed here, because (as the 1^st defendant confirmed orally at the hearing before us) he relies on only one argument on appeal.

The 1st defendant’s argument on appeal

20. The argument relied on by the 1^st defendant is that since the lots had been transferred into the names of himself and the 2^nd defendant on 17 January 2005 and 23 August 2007, which occurred prior to the commencement of the Originating Summons on 21 January 2008, the proceedings are concerned with the determination of their property, and not with the administration of the Deceased’s estate.  The 1^st defendant sought the return of the lots to them.

Discussion

21. As was pointed out to the 1^st defendant during the hearing, the transfer of the lots to the 1^st and 2^nd defendants was solely in their capacities as administrators of the Deceased’s estate. 

22. The interests vesting in personal representatives such as administrators do not vest in them beneficially as they hold “in auter droit” (in right of another), and so their interest “is different from the absolute and ordinary interest which a person would have in his own property” (Williams,Mortimer and SunnucksonExecutors, Administrators and Probate, 20^th ed para.41-09, p.582).  The law is therefore clear that the 1^st and 2^nd defendants did not acquire any beneficial interest in the lots (or in any other assets of the estate).

23. It does not matter that the 1^st and 2^nd defendants would be entitled to share in the distribution of the Deceased’s estate when the administration is completed.  Until administration is completed, the inchoate right of beneficiaries in an intestacy is only to have the estate properly administered and ultimately to take under the statutory trust for sale and conversion of the assets in the estate (s.62(1) Probate and Administration Ordinance Cap. 10; Williams,Mortimer and Sunnucks para.81-03, p.1414).

24. Further it cannot be suggested that there has been any assent, ie an acknowledgment by a personal representative that a particular asset is no longer required for the payment of debts, funeral expenses or general pecuniary legacies, so that that asset can be, and is, distributed to a beneficiary (Williams,Mortimer and Sunnucks para.81-01, pp.1411-1412).  The memorials and registration particulars which the 1^st defendant has relied on are not assents within the provisions of s.66(3) of the Probate and Administration Ordinance.

25. The 1^st defendant’s argument that the lots have become the property of himself and the 2^nd defendant is therefore misconceived in law.

Order

26. The appeal should therefore be dismissed with an order that the 1^st defendant and the estate of 2^nd defendant should pay the plaintiff’s costs of the appeal.  The 1^st defendant and the estate of the 2^nd defendant should also pay the costs of the summons to adduce fresh evidence.  The items were either irrelevant (the 1^st item), unnecessary (correspondence with the court) or could have been produced before the judge (the rest of the items).

Notice

27.1.  As mentioned earlier, it would appear from the Tomlin order that Tang Ieng Kit was acknowledged as being entitled to share in the estate as a son of the Deceased.  He is not however a party to these proceedings. 

27.2. As noted by Chu JA (at para. 30) in her Judgment on the stay application, Order 85 rule 3(2) of the Rules of the High Court provides that all persons having a beneficial interest in the estate need not be parties to the action.  However as the identity of the administrator may affect Tang Ieng Kit, it seems appropriate to direct that notice of this Judgment be served on him in the exercise of the court’s power under Order 44 rule 2(1) of the Rules of the High Court.

Hon Poon JA:

28. I agree.

CACV 185/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2013

(ON APPEAL FROM HCMP NO. 147 OF 2008)

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BETWEEN

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Hon Cheung JA (giving Decision of the Court) :

1.  The defendants apply for leave to appeal to the Court of Final Appeal against our judgment of 27 March 2014.The issue we addressed in our judgment was the defendants’ appeal out of time against the decision of Chu JA sitting as a single judge of the Court of Appeal.  Chu JA refused to stay execution of the judgment of Deputy Judge Leung pending the determination of the defendants’ appeal against that judgment.

2.  In our view the defendants have failed to satisfy the requirement for obtaining leave to appeal.  The refusal to stay execution is not a final judgment.  It does not satisfy the ‘as of right’ limb.  No issue of great, general or public importance has been identified.  The defendants merely suggested during the oral submission that the case involved traditional customs without any elaboration.  Nor is the ‘or otherwise’ limb engaged.

3.  Accordingly the application is refused with costs to the plaintiff to be taxed if not agreed.

Mr Matthew Tse, instructed by Lily Fenn & Partners, for the plaintiff

The 1^st and 2^nd defendants, unrepresented, appeared in person

CACV 185/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2013

(ON APPEAL FROM HCMP NO. 147 of 2008)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving judgment of the Court) :

1.  Deputy High Court Judge Simon Leung removed the 1^st defendant as the administrator of the estate of his late father and replaced him by a professional administrator. The defendants lodged an appeal against the judgment and applied before Judge Leung for a stay of execution of the judgment. It was refused. The defendants then renewed the stay application before Chu JA, sitting as a single judge of the Court of Appeal. It was likewise refused on 5 December 2013. The defendants by summons dated 23 December 2013 asked this Court to stay the execution of the judgment. In our view the defendants’ summons must be treated as an appeal out of time against the determination of a single judge of this Court. Under Order 59 rule 14(12) of the High Court Rules the application must be made within 10 days of the determination. The defendants’ application is out of time. The 1^st defendant says that he was told by a staff of the registry that the application was within time. We will address the matter on its merits.

2.  In refusing the stay, Chu JA was exercising a discretionary remedy.  The principle regarding an appeal to this Court against the exercise of discretion by a single judge is that this Court is not to exercise the discretion afresh but to consider whether the discretion had been improperly exercised in the first place.  This Court will only interfere if, for example, the discretion was exercised on erroneous principles or irrelevant considerations had been taken into account or relevant considerations had been ignored.

3.  In the present case Chu JA clearly had recognised the principle governing the stay of execution of judgment pending appeal. Short of demonstrating that the appeal is so strong that justice requires the execution of the judgment to be stayed, the appellant must show that the appeal will be rendered nugatory if the execution is not stayed.

4.  The 1^st defendant was removed because of his delay in completing the administration, failure to administer the estate properly and failure to render proper accounts.  Some examples of the 1^st defendant’s default are his reliance on loans obtained from individuals who charged exorbitant interest rate of 43-48% and while the estate had received over $60 million, the 1^st defendant claimed that they were absorbed by the expenses of and for the estate.  These are all factual findings which the Court of Appeal is unlikely to disturb unless they are plainly wrong.  Chu JA had considered the merits of the appeal and the arguments of the defendants in seeking to challenge the judgment.  She held that the defendants had not demonstrated that the chance of success of the appeal is high.  We agree with her view.  The defendants are now merely repeating their arguments made before Chu JA which she had addressed.  Many of these matters clearly do not assist the defendants in establishing a strong appeal, such as the plaintiff not being a filial daughter, the terms of the 1^st defendant’s undertaking on the sale of the estate, the method of sale of the estate by professional administrator, his expenses and also local customs on who should be the administrator.  Neither can we see how the defendants’ appeal will be rendered nugatory in the event they are successful if the judgment is not stayed now.  Between now and the appeal the task of administration is simply taken over by a professional administrator.  Hence Chu JA said that the defendants’ position is not prejudiced.

5.  Accordingly, the appeal is dismissed with costs to the plaintiff.

Mr Matthew Tse, instructed by Lily Fenn & Partners, for the plaintiff

1^st and 2^nd defendants, in person, present

CACV185/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2013

(ON APPEAL FROM HCMP NO. 147 OF 2008)

________________________

____________________

_____________________________

REASONS FOR DECISION

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1.  By summons filed on 24 October 2013, the 1^st and 2^nd defendants apply for stay of execution of the judgment and order made by Deputy High Court Judge Leung (“the Judge”) on 26 August 2013 and 15 October 2013 respectively pending their appeal herein. By the judgment and order, the 1^st and 2^nd defendants were removed from their office as the administrators of the estate (“the Estate”) of Tang Chung Sau (“the Deceased”) and, in their place, Mr David Yen Ching Wai of Ernst & Young was appointed to be the administrator of the Estate.

2.  After hearing submissions, I dismissed the summons and ordered the 1^st and 2^nd defendants personally pay the plaintiff’s costs of the application, to be taxed if not agreed.  My reasons appear below.

HCMP147/2008

3.  The plaintiff is the sister of the 1^st defendant.  The deceased and Madam Cheung Yuk Ying (“Mother”) were their parents.  The Deceased died intestate on 15 July 1998.  The Estate is substantial.  According to the provisional schedule of properties filed with the Estate Duty Office in 2003, the Estate comprises mainly of: (1) cash and bank deposits in the amount of about HK$630,000; (2) 23 lots of land in the New Territories with an estimated value of about HK$80 million; (3) debts due to the Deceased in the sum of about HK$3,200,000; and (4) right to compensation from the government for resumption of land, the value of which was unspecified.

4.  On 1 December 2004, Letters of Administration was granted to the 1^st defendant and Mother, who was by then some 80 years old and in poor health.  The Judge had found that the Estate was effectively administered by the 1^st defendant.  As of today, the administration of the Estate has not been completed and no distribution has ever been made.

5.  In 2006, in reply to the plaintiff’s solicitors’ request for an account, the 1^st defendant confirmed that the Estate had received from the government compensation together with interest in the sum of about $8,700,000.

6.  In January 2008, the plaintiff commenced HCMP147/2008 against the 1^st defendant and Mother pursuant to Order 85 of The Rules of High Court, Cap.4A (“RHC”) for the production of account and an administration of Estate or alternatively an order for payment into court of money held by the defendants as administrators of the Estate.  Throughout the proceedings in the court below, both parties were legally represented.  

7.  Pursuant to an order for account made in November 2008, the defendants rendered an account which was later verified by affidavit.

8.  Mother died in October 2011. The 1^st defendant was given leave to represent the estate of Mother and in that representative capacity becomes the 2^nd defendant.

9.  On 21 November 2012, the plaintiff applied by summons for an order appointing her or a professional accountant to replace the 1^st and 2^nd defendants as the administrators of the Estate.  As an alternative, the plaintiff sought an order appointing her in the place of the 2^nd defendant to act jointly with the 1^st defendant to complete the administration of the Estate. 

10.  At a direction hearing before Au Yeung J on 6 March 2013, an undertaking was given by the 1^st defendant through his solicitors to the effect that he would not dispose of the landed properties and buildings in the Estate by way of sale, charges or otherwise without first giving to the plaintiff 14 days’ written notice of his intention to do so (“the Undertaking”).   

11.  Both the plaintiff and the 1^st defendant had filed affidavits in respect of the application.  The grounds for the plaintiff’s application are: (1) there had been inordinate delay in the administration and distribution of the Estate; (2) the administration was not carried out properly, fairly and impartially; and (3) the defendants had failed to keep proper and accurate account of the Estate.  The defendants opposed the application, contending that further accountant’s report was being prepared.

12.  By judgment handed down on 26 August 2013 (“the Judgment”), the Judge granted the plaintiff’s application.  The Judge was of the view that the manner in which the Estate was administered by the 1^st defendant in the past nine years, even on the 1^st defendant’s own case, together with the 1^st defendant’s failure to keep and furnish full and accurate account of the Estate, cried out for intervention.  The Judge further considered that it is more appropriate to appoint independent professional accountants to be the administrators.  This is because both the plaintiff and the 1^st defendant are directors in and indebted to a company (Happy Post Enterprises Ltd), whose shares are held by the Estate.

13.  The Judge therefore ordered the removal of the 1^st defendant (both in his personal capacity and as personal representative of Mother) as administrator of the Estate to take effect upon the appointment of independent, professional accountants as the administrators of the Estate.  The Judge gave the 1^st defendant 14 days within which to make proposals on the persons to be appointed as the new administrators.  The 1^st defendant, however, did not make any nomination.

14.  On 15 October 2013, the Judge appointed Mr David Yen of Ernst & Yeung as the new administrator of the Estate.  Mr Yen has since commenced working on the administration.  The 1^st defendant indicated at the hearing that Mr Yen had written to him to request for information.

Applications for stay of execution

15.  In the meantime, on 9 September 2013, the 1^st and 2^nd defendants, acting in person, commenced these proceedings to appeal against the Judgment. By summons filed on the same day, the 1^st and 2^nd defendants applied to the Judge to stay the Judgment pending his appeal.  Subsequently, by another summons filed on 17 September 2013, the 1^st and 2^nd defendants applied for an order that they may have interim capacity to act as the administrators of the Estate to conduct two civil litigations until the final disposal of their appeal.

16.  The Judge heard the summonses on 10 October 2013 and dismissed them with costs against the defendants.  The reasons for the decision were handed down on 15 October 2013.

Applicable legal principles

17.  The starting point in considering the defendants’ present application is Order 59 rule 13(1)(a) RHC which provides that a pending appeal does not operate as a stay.  The grant of a stay of execution pending appeal is a matter of the court’s discretion. 

18.  The relevant legal principles are well settled: Star Play Development Ltd v. Bess Fashion Management Co Ltd [2007] 5 HKC 84, at paras.6-10.  A stay will only be granted if there are good reasons to justify it.  A strong appeal will usually constitute a good reason for a stay.  By “strong appeal”, it means that something has grievously gone wrong with the process of law in the court below: per Litton JA (as he then was) in World Trade Centre Group Limited v. Resourceful River Limited, unreported, Civ App No 70 of 1993, 12 May 1993; and Wenden Engineering Service Company Limited v. Lee Shing Yue Construction Co Ltd, unreported, HCCT No 90 of 1999, 17 July 2002 at paras.6-8. Conversely, a mere arguable appeal is by itself insufficient.  The appellant will have to provide additional reasons to justify the stay.  If the appeal will be rendered nugatory without the stay, that would provide an additional good reason justifying a stay of execution.

19.  With these principles in mind, I turn to look at the reasons put forward by the defendants in support of their application.

The defendants’ reasons for stay of execution

20.  The defendants made two affirmations and further filed four other affirmations in support of their application.  The defendants had not lodged any submissions, notwithstanding the directions given by the Master on 30 October 2013. 

21.  The defendants put forward the following reasons as special circumstances justifying a stay of execution:

(1)   The Estate was mainly inherited from the Deceased’s ancestors. The plaintiff had never paid tribute to the ancestral tombs. The Deceased’s restaurant business was managed by the 1^st defendant and the plaintiff had never helped to run the business.

(2)   The plaintiff was not a filial daughter.  She did not pay visit to Mother or attended her funeral.

(3)   It is costly to have a professional accountant to administer the Estate.  There is no requirement that the account of the Estate has to be audited.  The plaintiff’s son is an accountant and it is questionable whether he is connected to Ernst & Young. 

(4)   The Undertaking was given without the 1^st defendant’s consent and he had not signed any written undertaking.

(5)   The 1^st defendant was not afforded an opportunity to defend himself or to call evidence in the proceedings below.

(6)   There is one other beneficiary to the Estate, Tang Ieng Kit, and he has no knowledge of the proceedings and the application taken out by the plaintiff.

22.  I shall deal with these points in turn.

Reasons for decision

23.  The source of the Estate, whether the plaintiff had helped out in the Deceased’s restaurant business and whether she had been a filial daughter, are all irrelevant considerations in the defendants’ application for stay of execution.

24.  Similarly, the manner in which the Undertaking came to be given to the court is irrelevant and cannot support a stay of execution.  It is essentially a matter between the defendants and their former solicitors.  Contrary to the 1^st defendant’s suggestion at the hearing, the Undertaking did not prevent the sale of the landed properties in the Estate; it merely required the 1^st defendant to give notice to the plaintiff of disposal of the landed properties.  There is also no merit in the 1^st defendant’s oral submission that the Undertaking had the effect of giving the plaintiff a head start in the proceedings while posing a psychological threat to him.    

25.  The Judge was fully aware of the defendants’ objection to their removal and the appointment of a professional accountant to administer the Estate.  The Judge had also considered the arguments advanced by the defendants including it would be costly to appoint an independent professional administrator.  In order to reduce the costs, the Judge had reduced the number of administrators from two to one.  He had also in the order of appointment imposed a cap on the administrator’s fees. 

26.  In addition, having regard to the size of the Estate, the appointment of an independent professional administrator is not unreasonable.  Given the 1^st defendant’s inability to come up with a full and accurate account of the Estate, it is apt to appoint a professional accountant whose expertise will be of use in investigating, tracing and establishing what have happened to the assets of the Estate.

27.  In his oral submission, the 1^st defendant informed me that in his nine years of administration, the Estate had received over $60 million from the sale of land.  After discharging approximately $12 million estate duty and defraying expenses of about $3 to 4 million, the rest of the money was however absorbed by repayment of loans incurred by him on behalf of the Estate and the payment of interest on those loans.  Admittedly, an excess of $40 million had been incurred in administering the Estate since 2004.  In these circumstances, it is not open to the 1^st defendant to complain that the costs of professional administrator are high and that he should be allowed to continue administering the Estate.

28.  The 1^st defendant further said that they are Hakka people and the customary practice is that administration of estate should be carried out by people within the family.  Accordingly, he argued, the appointment of an outsider or third party to administer the estate is both unheard of and contrary to customary practice.  Insofar as the 1^st defendant sought to advance an argument based on customary Chinese law, there is no such evidence before the Judge.  There is also no such evidence before this court.  The affirmation of 陳潤新, who used to be an indigenous villager representative, is hardly sufficient to prove the alleged Chinese or Hakka custom.  The 1^st defendant has also not established the basis for adducing new evidence on appeal: see the legal requirements in Ladd v. Marshall [1954] 1WLR 1489.

29.  The 1^st defendant also complained that at the hearing before the Judge, there was no opportunity for him to defend himself, to cross-examine witnesses and to call oral evidence.  He therefore said there ought to be a re-trial.  The proceedings in the court below were brought pursuant to Order 85 RHC.  Under Order 85 rule 4, the court may make any order or grant any relief notwithstanding that the action was begun by originating summons.  If the defendants desired to call oral evidence or cross-examine the plaintiff, it would be incumbent upon them to apply for directions.  The defendants were legally represented in the proceedings below.  No procedural objection had been taken.  There was also no application to the Judge to adduce oral evidence or to cross-examine witnesses.  The defendants have not demonstrated in what way the Judge erred procedurally in not turning the application into a writ action and/or in determining the application on affidavits.  Importantly, too, the Judge had concluded that even accepting the 1^st defendant’s case, the state of the administration cried out for intervention.

30.  Turning to the complaint that one of the beneficiaries has not been given notice of the plaintiff’s application, Order 85 rule 3(2) RHC provides that it is not necessary to make all persons who have beneficial interest in the estate parties to proceedings brought under Order 85.  Moreover, until he was removed, the 1^st defendant as the administrator of the Estate could and should have given notice of the application to Tang Ieng Kit if indeed he thought that Tang Ieng Kit should be informed.

31.  In short, none of the reasons advanced by the defendants provides proper grounds for staying the Judgment and the appointment of the new administrator.

32.  Apart from the matters discussed above, the defendants have in the notice of appeal also complained that: (1) the Judge was wrong to have found that the interest for the loans incurred by the 1^st defendant on behalf of the Estate was high; (2) the defendants’ former solicitors had not included everything in drafting the 1^st defendant’s 2^nd affirmation; and (3) the Judge had not taken into account that the defendants had used their best endeavours and had diligently and conscientiously discharged their duties in administering the Estate.

33.  As this is not the hearing of the appeal, I shall refrain from embarking upon detailed discussion and analysis of the grounds of appeal.  I need only form a preliminary view on the merit of appeal.  It is sufficient for the purpose of the present application to say that the defendants are primarily seeking to challenge the Judge’s findings on the fact and that unless the Judge is shown to be clearly wrong, the appellate court is slow to interfere with his findings.  Given that it is the defendants’ case that millions of dollars had been incurred on interest payment, it is difficult to say that the Judge was not entitled to comment that the interest rate was high.  Further, on the materials before the court and in the light of the analysis and reasons given by him, the Judge is, in my view, entitled to conclude that the defendants should be removed and a new professional administrator be appointed.  As to the complaint levied against their former legal representatives, there is a lack of particulars.  It has not been shown what prejudice had been occasioned to the defendants. 

34.  The merit of the defendants’ appeal is accordingly not a strong one and does not justify a stay of execution.

35.  For the above reasons, the defendants’ summons was dismissed.

Costs

36.  The 1^st defendant argued that as the application relates to the administration of the Estate, the costs should be borne by the Estate.  The plaintiff however asked that the costs be paid by the defendants personally.

37.  Generally speaking, costs should follow event.  The defendants, having failed in their application, should pay the costs of the plaintiff.  When the defendants took out the present application, they were no longer the administrators of the Estate and they had no entitlement to have their costs met by the Estate. Further, under Order 62 rule 6(2) RHC, where a personal representative (which includes an administrator) has acted unreasonably or has in substance acted for his own benefit rather than for the benefit of the estate, the court may order that the costs not be paid out of the estate.  There is no doubt that the defendants acted for their own benefit rather than that of the Estate in bringing the application for stay.  This provides a further reason why the costs should not be paid out of the Estate. 

38.  Accordingly, I ordered that the 1^st and 2^nd defendants personally pay the plaintiff the costs of the application, to be taxed if not agreed.