Po Ka Ying v. Chu Pui Lai Kitty

HCMP 1263/2018

[2020] HKCFI 2289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1263 OF 2018

____________

_____________

____________

_____________

D E C I S I O N

_____________

1.This case can be divided into administration of the estate of the grandfather, Mr Chu, and the estate of the grandmother, Madam Tse.

2.The first and foremost issue that comes to mind is whether or not the plaintiff is a beneficiary to these two estates, in the light of sections 4(3) and 5(1)(a) of the Intestates’ Estates Ordinance, Cap 73.  The plaintiff must have that sorted out as soon as possible, and in any case, before the next hearing. 

3.The next issue concerns appointment of administrators.  Both estates involve related assets and so it is best to have one set of administrators to administer both estates.  There is no longer any dispute that the plaintiff’s mother and the aunt (the defendant) were sisters and natural daughters of the grandmother.  The estates of the grandfather and grandmother, subject to the issue I have earlier raised under paragraph 2 as to whether the plaintiff is a beneficiary, involve infant beneficiaries. Therefore, it is necessary to have co-administrators. 

4.The dispute between the parties is who should be the administrators of the estate.  Given the mistrust of the plaintiff towards the defendant and the defendant’s mistrust towards the plaintiff and her father, there is probably sufficient basis for the court to consider removal of the defendant as administratrix if she is not willing to cease acting.

5.The question is who should be appointed in her stead:

(a) I require the defendant to inform the court in writing within 21 days, copied to the other side whether she consents to cease being an administratrix; and

(b) I require the parties to jointly give me a letter within the next 21 days, each party naming three sets of co-administrators who are willing and able to handle both estates with their respective CVs and estimated charges and costs.

The court will decide this issue of appointment on the papers without the need for a hearing unless otherwise directed.  This should largely dispose of the prayers in paragraphs 1 to 4 of the amended originating summons. 

Giving of Accounts

6.Whether the defendant will be an outgoing administratrix, she has to give an account of the grandfather’s estate.  I therefore direct her to give an account within 42 days in the terms of prayer no 5 of the amended originating summons. 

7.In relation to prayer no 6 for handing over of title deeds, this matter will be deferred until after appointment of the co-administrators.  At this stage, the court will only direct the defendant to state where the title deeds of the PRC property A and the Shatin property are.

8.Prayer no 7 of the amended originating summons involves an issue of fact and law.  The court is yet to see a properly drafted list of issues before deciding on how to move this case forward. 

9.In relation to prayer no 8 of the amended originating summons, there is no application for interim injunction before me, and so this court will defer resolution of this matter.

10.In relation to the grandmother’s estate, it has never been administered and there are no administrators.  The question of who should be the administrators will be dealt with together with the grandfather’s estate as stated above.  This will deal with prayer nos 10 and 10A of the amended originating summons. 

11.In relation to giving of accounts of the grandmother’s estate, it is strictly not correct to require the defendant to give a set of accounts as she is not an administratrix to the grandmother’s estate.  However, even on her own affirmations, there are clearly assets belonging to the grandmother that had been, were, or still are in her hands. They include properties, cash, proceeds of sale, and rental income.  She should give an affidavit stating what assets there were and are in her hands and what has become of them. 

12.In the interest of time and to assist the court in the fair and just resolution of the dispute between the parties, I ask the defendant to give her affirmation of her case in relation to prayer no 11 of the amended originating summons within 42 days. 

13.Prayer no 11A is a question of fact and law.  Again, I defer resolution of this prayer until the issues are crystallised. 

14.Prayer no 12 concerns the title deeds. They should be given to the incoming co-administrators and not the plaintiff unless she is appointed.  What the defendant can do is to inform the court where the title deeds are. 

15.Prayer no 13 concerns an injunction. Again, there is no application for interim injunction before me and so I defer resolution of this issue. 

16.I order as follows:

(1) This case is adjourned to 6 October 2020 for a second CMC;

(2) As directed above, I require the defendant to inform the court within 21 days, copied to the plaintiff, whether the defendant consents to cease being an administratrix, and the parties shall jointly give me a letter within the next 21 days, each naming three sets of co‑administrators who are willing and able to handle both estates with their respective CVs and estimated costs and charges.  The court will decide the issue of appointment on the papers without the need for a hearing unless otherwise directed;

(3) The defendant is to give an account on affirmation as administratrix of the grandfather’s estate within 42 days in terms of paragraph 5 of the amended originating summons;

(4) The defendant is to state on affirmation the assets of the grandmother’s estate which had been, or were, or are in her possession, custody and/or control, and what has become of them. This affirmation shall be filed and served within 42 days and to contain the matters stated in prayer no 11 of the amended originating summons;

(5) 7 days before the next CMC, counsel shall agree a list of issues of fact and law.  Parties shall be bound by the list of issues; and

(6) If expert evidence is required, or retrospective leave is needed for any expert report filed, the proper expert issue has to be framed in the list of issues for the court’s approval.  There should be a proper timetable for preparation of reports, joint discussion of experts and preparation of joint reports.  In particular, parties need to address issues as to the relevance of PRC law on succession rights to land and personal assets and valuation of landed properties.

17.Finally, I require the plaintiff to rearrange the sequence of affirmations in the hearing bundles for the next CMC hearing. There shall be proper updating of this bundle for the next CMC.

(Discussion re bundles, hearing time, VCF and costs)

18.Costs be reserved.

Ms Clara Yung, instructed by Lee Herbert & Associates, for the plaintiff

Ms Sakinah Sat, instructed by L & L Lawyers, for the defendant