Cheung Kam Ying, Deceased v. Cheung Man Sze and Another

HCA 2651/2015

[2021] HKCFI 1863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2651 OF 2015

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BETWEEN

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DECISION

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1.These proceedings were commenced by Mr Cheung Tin Lung (“CTL”)  in 2015, purportedly on behalf of the late Cheung Kam Ying (“the Deceased”).

2.On 25 November 2020, the 1^st and the 2^nd defendants (“D1” and “D2”, collectively, “Ds’)  issued a summons for an order to strike out the claim herein and to dismiss this action (“the Striking Out Application”).  On 22 January 2021, Mr Registrar S Kwang allowed the Striking Out Application and ordered that the statement of claim be struck out as no one has the capacity to sue on behalf of the estate of the Deceased and the action be dismissed for want of prosecution.  The Registrar also ordered that costs be paid by CTL to Ds.  On 5 February 2021, CTL lodged an appeal against the Registrar’s decision.

3.The background facts are as follows:

(1)  The writ of summons was issued with general indorsement on 13 November 2015 by CTL.  As per the writ, CTL is purportedly on behalf of the Deceased seeking, inter alia, an order to set out an assignment (“the Assignment”)  of a real property (“the Property”)  dated 18 November 2009 executed by the Deceased in favour of D1.  CTL is claiming that the Deceased executed the Assignment under the undue influence of D2.

(2)  The writ was registered against the Property on 16 December 2015 at the Land Registry.

(3)  The writ was not served on Ds until 10 November 2016.

(4)  On 1 December 2016, Ds filed a notice of intention to defend.

(5)  CTL has never filed and served a statement of claim.

(6)  In the hearing on 22 January 2021, it was revealed that in fact CTL had made an ex parte application to try to obtain a carry-on order pursuant to Order 15 rule 6A to allow him to carry on the proceedings on behalf of the Deceased’s estate.  However, no carry-on order was granted due to CTL’s non-reply to the requisitions raised by the court in January and July 2017.

4.In this appeal, I approach the Striking Out Application as if the same came before me for the first time[1].  In my view, it is plain and obvious that CTL does not have the locus standi to commence and to continue these proceedings against Ds, for he is not the executor, administrator or the personal representative representing the Deceased’s estate.  In other words, CTL does not have the authority to do anything on behalf of the Deceased’s estate.  The law on this point has been clearly set out by Lam VP in Lam Sik Ying v Lam Sik Shi[2], in which his Lordship said:

“35. The principle in Ingall v Moran (cited in Re the Estate of Luk Kim Ying)  was also considered in Millburn-Snell v Evans [2012] 1 WLR 41 at [16], in which the English Court of Appeal described as “clear law” that “an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity”.

36. This line of authorities was followed in Wong Lai Mei v Kwong Pak Leung [2015] 1 HKLRD 888. In that case, the plaintiff brought proceedings against the defendant purportedly as the intended administratrix of the deceased’s estate without obtaining a grant of letters of administration. Recorder Pow SC considered Millburn-Snell v Evans (at [17])  and held that “the bringing of the action and the filing of the Writ in the present case was a nullity ab initio. As Scott LJ said in Ingall, this action was born dead and could not be revived” (at [23]).

37. We agree that it is trite that a beneficiary cannot purport to sue on behalf of an estate unless and until that person is granted the letter of administration.  Although Victor had been appointed as the administrator of the Estate on 24 March 1999, he was removed from such appointment on 4 September 2017.  Thus, he did not and does not have the capacity to file and serve the Notice of Appeal or to proceed with the appeal on behalf of the Estate.”

5.Plainly, CTL does not have the locus to sue on behalf of the Deceased’s estate in these proceedings.  The Striking Out Application must be allowed.  In my judgment, the Registrar is plainly right in allowing that application.

6.I dismiss this appeal.  Costs should follow the event.  I order that costs of the appeal be paid by CTL to Ds forthwith and those costs be summarily assessed on the papers.  There be leave to Ds to file and serve a bill of costs for summary assessment within 7 days, and leave to CTL to file and serve a written reply to the said bill within 7 days thereafter.

7.This appeal is utterly without merits and should never be brought.  To show the court’s disapproval of lodging appeals of this kind, I order that the costs awarded to Ds be assessed on an indemnity basis.  Judicial resources have been taken up by this unmeritorious appeal, while those resources could have been otherwise usefully deployed for other litigants.[3]

Mr Cheung Tin Lung acted in person being absent

Mr Kelvin Man, instructed by Li, Ngan & Co, Solicitors for the 1^st and 2^nd defendants