Junying Yan v Xiangting Kong (in Her Capacity as Administrator of the Estate of the Deceased)

Junying Yan has commenced a claim against Xiangting Kong (second defendant), as well as two other defendants (third and fourth defendants), seeking relief under the Family Provision Act and for a constructive trust. The second defendant, supported by the third and fourth defendants, has applied for an order for security for costs. Junying Yan has applied for a stay of the proceedings. The plaintiff’s application was opposed by the second, third and fourth defendants.

The court needed to decide whether the plaintiff’s application for a stay should be granted, and whether the second defendant’s application for security for costs should be granted. The court found that the plaintiff’s application for a stay was not justified. The court found that the plaintiff had commenced the proceedings, and it was not open to her to contend that the Court was not an appropriate forum. The court found that the plaintiff’s position was not that the outcome of the Chinese proceedings would resolve the issues in the action in this Court. The court found that the balance of convenience did not favour a stay, as the second defendant and the other defendants had not provided any evidence that proceeding to the resolution of the action in the Court would prejudice the plaintiff. The court found that the plaintiff’s position amounted to having her cake and eating it. The court found that the second defendant’s application for security for costs should be granted. The court found that the plaintiff’s application for a stay of proceedings had not been successful, and the second defendant and the other defendants had incurred significant costs as a result of the proceedings. The court found that the plaintiff should pay $350,000 by way of security for costs.

The court dismissed the plaintiff’s application for a stay of the proceedings. The court granted the second defendant’s application for security for costs. The court ordered that the plaintiff pay $350,000 by way of security for costs, and that the action be stayed until such time as the plaintiff provides said security. The court ordered that the parties be heard as to the timing by which such payment is to be made and the costs of these applications. The court deferred the requirement for the defendants to file a defence to the plaintiff’s claim until further order. The court granted permission for the defendants to apply for further security prior to and for the costs of trial.