Re Glenlyon Ltd

HCMP 2372/2017

[2018] HKCFI 1038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2372 OF 2017

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Before: Hon Wilson Chan J in Chambers (Open to public)

Date of Hearing: 18 April 2018

Date of Judgment: 18 April 2018

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J U D G M E N T

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1.This is an application by Glenlyon Limited (“the applicant”)  pursuant to section 62 of the Trustee Ordinance, Cap 29, to pay into court the unclaimed funds standing in its Australian Dollar Time Deposit Account number 694-4-0180710 (“the Unclaimed Funds”) with China CITIC Bank International Limited (“the AUD Account”).

2.The applicant was incorporated on 21 November 1978.  At all material times, the applicant’s directors and shareholders were and are partners of the firm of solicitors, Messrs Hampton, Winter & Glynn (“HWG”). 

3.The applicant was incorporated for use by the clients of Messrs Charles Russell & Co (“CR”), and became a nominee company of HWG after HWG merged with CR in April 1984.  Its main role was to act as a trustee for trusts of the clients of CR, and later, HWG, and it also acted as nominee shareholder for their respective clients. 

4.Section 62 of the Trustee Ordinance, Cap 29, empowers trustees (or a majority of trustees) to pay into court trust money or securities under their control, and such payment in is a good discharge. 

5.A payment in may be made by a trustee under section 63 of the Trustee Act 1925 (the UK equivalent to section 62 of the Trustee Ordinance) where trust money is held in trust for a beneficiary from whom, for some reason (for example, because he cannot be found), a sufficient discharge cannot be obtained [see: Lewin on Trusts, 19th edition, paragraph 027-097]. 

6.In Hong Kong, courts have often allowed finance/security companies to pay into court under section 62 of the Trustee Ordinance unclaimed cash and deposits of its clients who could not be contacted. 

7.On the basis of the evidence filed before the court, it is clear that the applicant is a trustee in respect of the Unclaimed Funds, which are in the applicant’s control, and are trust money. 

8.The court’s jurisdiction under section 62 of the Trustee Ordinance is thus engaged, and this court may exercise its discretion to allow the applicant to pay the Unclaimed Funds into court. 

9.Further, I agree there is sufficient evidence before the court to indicate that the applicant has done everything it could to identify the owners of the Unclaimed Funds, but has not been able to contact any of them.  The applicant therefore is unable to obtain a discharge from any of the beneficiaries of the Unclaimed Funds.

10.Accordingly, I agree with the applicant that this is an appropriate case where the court should invoke its jurisdiction under section 62 of the Trustee Ordinance, and make the following orders sought in the originating summons:-

(1)  A declaration that the unclaimed funds standing in its Australian Dollar Time Deposit Account number 694-4-0180710 in the amount of AUD319,142.46 (“the Unclaimed Funds”) with China CITIC Bank International Limited (“the AUD Account”) are held by the applicant as trustee for clients as set out in the Affirmation of Vanky Mak dated 24 October 2017 and filed herein; 

(2)  The applicant do have leave to pay into court the Unclaimed Funds subject to any deduction of costs;

(3)  The applicant shall give notification of this court’s order and the rights of such clients to apply for payment out of their respective unclaimed cash under Order 92 of the Rules of the High Court by way of advertising in:

(a) one Chinese language and one English language daily newspaper in Hong Kong; and

(b) one English language daily newspaper in London, United Kingdom and Sydney, Australia, within 60 days from the date of the order, and by letter to their last known address.

(4)  Upon compliance of sub-paragraph (3), Order 92, rule 4 of the Rules of the High Court is deemed to have been complied with by the applicant;

(5)  The costs of and occasioned by this application be paid out of the Unclaimed Funds to be taxed on a trustee basis. 

11.As far as costs is concerned, I have considered the skeleton bill lodged with the applicant’s Skeleton Submissions.  Taking a broad-brush approach, I would summarily assess the costs of and occasioned by this application at HK$590,000.

Mr Eugene Fung, SC, instructed by Hampton, Winter & Glynn, for the Applicant