Yoe Han Yauw v. Yoe Han Hian and Others

HCMP 85/2018

[2018] HKCFI 2369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 85 OF 2018

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D E C I S I O N

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1.The parties to this action are siblings. By an originating summons dated 18 January 2018, the applicant applied for declarations against the 1^st to 3^rdrespondents that they are jointly and/or severally indebted to him in the sum of $400,000 and $858,350.54, and orders for payment of those sums.

2.The applicant justified the use of the originating summons procedure by suggesting that the application is based on undisputed facts and that he is able to demonstrate a prima facie case against the respondents.  He also contended that the respondents have failed to discharge the burden of showing a bona fide defence.

3.The relevant facts that are not in dispute are straight forward.  The parties held an account in joint names at Chiyu Bank (“the Account”).  The parties, together with their mother (“Madam Gan”) were also directors and shareholders of a company known as Forever City International Limited (“the Company”).

4.The sum of $400,000 was said to be a shareholders’ loan to the Company.  They were paid into the Account by two cheques issued by the Company to the applicant on 3 October 2016 and 16 May 2017.  They were deposited into the Account behind the applicant’s back shortly thereafter.

5.The $858,350.54 was said to be the applicant’s one-third shareof the net proceeds of sale of a car parking space (“the Property”) which was jointly owned by him with the 1^st and 3^rd respondents.  They were paid into the Account by three instalments between June and August 2016.

6.A total sum of $4.76 million was withdrawn from the Account between June and August 2017, leaving a balance of some $9,000 on 29 August 2017. 

7.The respondents allege that the moneys in the Account were used for the liquidation of a factory in the mainland (“the Factory”).  The Factory formed part of the parties’ business in Hong Kong by a company known as Long Kong Enterprise Company (“Long Kong”).  Specifically, it is said that the moneys were used to make severance payments to workers and the moneys were paid pursuant to an alleged oral agreement between the applicant and the respondents (“the Agreement”).

8.It is common ground that the main issue in these proceedings is the existence of the Agreement.  The applicant denies the existence of the same and the issue is hotly disputed.

9.Having considered the submissions by the parties, I form the view that the matter cannot be disposed of without hearing viva voce evidence from the witnesses. Although the applicant made a number of valid points against the existence of the Agreement, I am not prepared to dismiss the respondents’ case summarily.

10.This leaves the option of converting these proceedings into a writ action under Order 28, rule 8 or hearing oral evidence in these originating summons proceedings under Order 28, rule 4. Having heard submissions from the parties on this issue, I have decided to opt for the latter.

11.The issue before the court is relatively clear and the filing of pleadings is unnecessary. The parties also confirmed that no further discovery is required and the key documents are already before the court.  In addition, one of the key witnesses in respect of the existence of the Agreement is the mother of the parties who is of an advanced age.  It is, therefore, in the parties’ interests for the matter to proceed to trial expeditiously.  

12.The parties are in agreement that the following directions are required and they are made by consent: 

(1)   Leave be given to the respondents to file and serve further evidence in opposition within 28 days;

(2)   Leave be given to the applicant to file and serve evidence in reply (if so advised) within 21 days thereafter;

(3)   No further evidence be filed without leave of court;

(4)   The parties to file an agreed list of issues within 21 days thereafter;

(5)   The substantive hearing of the originating summons be adjourned to a date to be fixed in consultation with counsel’s diaries with five days reserved;

(6)   The affirmations filed in these proceedings do stand as evidence-in-chief for the substantive hearing;

(7)   Leave be given to the parties to cross-examine the witnesses on their affirmations and no affirmation shall be admitted into evidence unless the deponents are to make themselves available for cross-examination;

(8)   The applicant to lodge and serve trial bundles within 28 days before the substantive hearing;

(9)   The applicant is to file and serve his opening submissions 14 days before the substantive hearing and the respondents shall file their opening submissions seven days before the substantive hearing;

(10)   Costs of this hearing be in the cause.

Mr Robert Chan, instructed by Alvan Liu & Partners, for the applicant

Mr Gary Lam, instructed by Chak & Associates, for the 1^st to 3^rd respondents