Chung Hon v. Ng Sau (or Shau) Chun and Others

HCA 1195/2014

[2019] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1195 OF 2014

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Before: Hon Au-Yeung J in Chambers

Date of Hearing: 6 March 2019

Date of Decision: 6 March 2019

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D E C I S I O N

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1.This is the plaintiff’s application for an order to substitute the estate of D8 for D8 and for the carrying on of the proceedings in the absence of a person representing D8.

2.D1 to D3 had by a previous order been substituted by D4 to D9.  D4 to D7 and D9, have written to the court seeking to be excused from the attendance of this hearing.  According to their letter, their solicitors have no instructions to act for D8 or his personal representatives.  They take a neutral stance to the present application. 

3.This is an adverse possession claim.  Regarding D8 and D9, they were interested in three pieces of land in respect of which the plaintiff claims a declaration as a squatter.

4.D8 had passed away in January 2019.  D8 was a joint tenant to the three pieces of land in question.  The estate of D8 will have no interest in the subject matter for which the declaration is sought by the plaintiff.  However, there remains a question of costs incurred prior to the demise of D8. 

5.At the PTR hearing on 30 January 2019, the parties have confirmed that they considered that the proceedings could proceed to trial as scheduled in May 2019. 

Legal provisions

6.Order 15, rule 7(1) and (2) provide that:

“(1) Where a party to an action dies … but the cause of action survives, the action shall not abate by reason of the death …

(2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party ...”

7.Order 15, rule 15, provides that:

“(1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

(2) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks just.”

8.In the present case, there is an issue of costs between the plaintiff and D8 which has devolved upon the estate of D8 upon the death of D8.  The estate of D8 should be substituted in place of D8 as a party.

9.After the PTR hearing, the plaintiff had written to D9, the only person who the plaintiff knew and believed to likely to consent to represent the estate of D8.  The plaintiff asked if D9 was willing to represent the estate of D8 and, if not, whether D9 might provide any information about any person who might be willing to take up such a role.  D9 has not replied.

10.The plaintiff had done a probate search but could not find record of any probate or letters of administration granted or applied for in respect of the estate of D8.  The Official Solicitor has made clear that it would not represent the estate of D8.

11.In this case, this court is content to make an order that the action be carried on without a person representing the estate of D8. 

12.Insofar as the subject lands are concerned, D8 no longer has interest in those lands as his interest had passed as a matter of law to D9 upon his demise.

13.The only outstanding issue is past costs incurred whilst D8 was alive.  The trial of the present case will be heard commencing 6 May 2019.  It is not clear when an administrator or executor of the estate of D8 will be appointed and whether he or she will be appointed before the trial commences.  If there is no order to continue, the proceedings will be delayed and yet for no substantial purpose.

14.Prior to his decease, D8 stood to have the same interest as D9 in the subject matter in this action and they were represented by the same firm of solicitors. 

15.There is no real likelihood that the absence of a person representing the estate of D8 at the trial will lead to real prejudice to the estate of D8.  I, therefore, exercise my discretion to make an order that:

(1)  The proceedings in this action be continued as between the plaintiff and the estate of Chung Tsz Shun as the 8th defendant;

(2)  This action shall proceed in the absence of a person representing the 8th defendant; and

(3)  Paragraphs 1 and 2 of this order and any judgment or order subsequent to today shall bind the 8th defendant to the same extent as he would have been bound had a personal representative of his been present as a party to the proceedings.

16.Costs of this application shall be in the cause.

Mr Michael Chai, instructed by Cham & Co, for the plaintiff

Attendance of the solicitors for the 4^th-7^th and 9^th Defendants be excused