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Tang Ying Ip and Others v. Tang Ying Loi

Read the full judgment text of FAMV 17/2016 on BabelCite. This Court of Final Appeal judgment was delivered on 5 July 2016 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ.

Civil procedure – leave to appeal – Court of Final Appeal – fiduciary duty – personal representative – account of profits – causal connection – breach of fiduciary duty – point of great general or public importance – 'or otherwise' ground – principles for establishing causal connection between breach and profits – independence of opportunity and decision – own resources – beneficial interest – disclosure to beneficiaries – leave granted

Legal issues: Leave to appeal on causation principles in account of profits for fiduciary breach

Outcome: Leave to appeal granted on the point of great general or public importance and on the 'or otherwise' ground.

Case No.FAMV 17/2016
Court
Court of Final Appeal
Date05 Jul 2016
JudgeChief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ
Case Document
100%Judiciary

FAMV No. 17 of 2016

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 2016 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 36 OF 2015)

____________________

BETWEEN

  TANG YING LOI
 Plaintiff
(Respondent)
  and
  TANG YING IP alias TANG YING YIP
 1st Defendant
(1st Applicant)
  YEUNG FOOK MUI
 2nd Defendant
  TRI-STRONG INVESTMENT LIMITED
 3rd Defendant
(2nd Applicant)

____________________

Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Fok PJ
Date of Hearing and Determination: 5 July 2016

__________________________________

DETERMINATION

__________________________________

The Appeal Committee:

1.Leave is granted on the following point of great general or public importance:

Where a personal representative has, in breach of fiduciary duty,used money from the estate for the purchase of a property for himself, and where proceedings are brought against him for an account of profits, in proving the causal connection between such breach of duty and the profits sought to be recovered, on what principles is such causal connection to be established?

2.Leave is also granted on the “or otherwise” ground regarding the application of the appropriate legal test taking into account the factual matters set out in sub-paras A(2) to (5) of the Notice of Motion dated 13 April 2016, namely:

“(2) whether it is irrelevant that the personal representative came by the opportunity and made the decision to purchase the property entirely independently from his office and the breach of duty;

(3) whether it is irrelevant that the personal representative could and would in any event have completed the purchase of the property with his own resources had he not used the money from the estate;

(4) whether it is irrelevant that the personal representative had acquired a beneficial interest in the property by entering into a specifically enforceable contract for the sale and purchase of the property and paying the deposit with his own funds; and

(5) whether the relevance of the personal representative’s repayment of the money from the estate is dependent on whether there was disclosure to the beneficiaries at the time.”

3.The hearing date of the appeal will be 16 January 2017.

(Geoffrey Ma) (RAV Ribeiro) (Joseph Fok)
Chief Justice Permanent Judge Permanent Judge

Mr Denis Chang SC and Ms Candy Chan, instructed by Wong, Hui & Co., for the 1st & 3rd Defendants (Applicants)

Mr Benjamin Chain, instructed by Pansy Leung Tang & Chua, for the Plaintiff (Respondent)