Denview Estates Ltd v. Chan Kwong Tsun and Others

CACV000023/1982

O.15 r.6A is applicable not only to running-down actions but to any case where an action would have lain against a person since deceased and where the cause of action has survived.

BETWEEN

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Coram: Sir Alan Huggins, V.-P. : Yang & Barker, JJ.A.

Date of hearing: 11 March 1982

Date of Judgment handed down on: 18 March 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. The Plaintiff owns two one-third undivided shares in a piece of land. The remaining one-third share was owned by one Chan Kwong-tsun, who has died. The Plaintiff had a scheme for redeveloping the land and was negotiating for the purchase of the Deceased's interest. Those negotiations did not produce any effective results because of the death of the Deceased and the fact that no grant of representation has yet been made. The Plaintiff therefore decided to apply to the Court for partition or sale, with the object of acquiring the Deceased's interest.

2. A partition action was commenced, but unfortunately it was framed as an action for partition or sale of the Deceased's one-third share. Under O.15 r.6A the action was brought against the estate of the Deceased and application was duly made for an order appointing a person to represent the Deceased's estate for the purpose of the proceedings. The person named was, in fact, the wife of the Deceased, who had been named as sole executrix in his will. The application was dismissed by the judge in chambers on the ground that it was misconceived, and the Plaintiff appeals.

3. Although this was not appreciated at the hearing of the application, it was not so much the application as the whole action which was misconceived: what ought to have been sought was partition or sale of the whole of the land and not merely the Deceased's one-third share. This had been appreciated by Mr. Li, who appeared for the Plaintiff before us but who had not been present in chambers, and at the suggestion of the Court he applied for amendment of the Originating Summons. We thought it right to grant that application.

4. We had no note of the reasons which led the judge to decide that the application for an order to appoint a representative for the purpose of the proceedings was misconceived, but we are told that he thought the provisions of O.15 r.6A were applicable only to running down actions. We have been supplied with a copy of the judge's personal notes of the argument, but, although they were no doubt perfectly intelligible to him, they have been of little assistance to us. It does, however, appear that he was referred to In re Amirteymour, deceased 1979 1 W.L.R. 63 and it may be that he misunderstood a passage in the judgment of the court at p.67B

"In point of fact, as the master pointed out in his judgment, the principal reason for the [Proceedings Against Estates Act 1979] and for rule 6A was to avoid delay in prosecuting running-down actions against deceased drivers pending grant of letters of administration."

That may have been the principal reason, but it was not the only reason and there is no ground for declining to apply the rule where some other type of action can be brought within the four corners of its provisions. We were satisfied that the present action would have lain. against the Deceased and that the cause of action survived. Accordingly, no grant of probate having been made, the action was properly brought against the estate of the Deceased and it was right that the sole executrix should be appointed to represent the estate for the purposes of the proceedings. We therefore allowed the appeal and made the order which had been asked for.

18th March 1982.

Representation:

A.Li (Johnson, Stokes & Master) for Appellant.

1st Respondent not appearing.

Mrs. A. Nandi for 2nd Respondent.