Yuen Sau Ping Merita v. The Personal Representative of Tsang Wai Yee Belinda, Deceased and Others

HCA 2521/2016

[2021] HKCFI 2158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2521 OF 2016

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BETWEEN

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J U D G M E N T

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Introduction

1.By summons dated 13 May 2020 (“Summons”), the Plaintiff seeks 3 categories of Orders from Master:

(1) The 1st category of Orders are for the “Reconstitution of the 1st Defendant” (“Category 1”) as follows:

“1. Leave be granted to the Plaintiff to withdraw the claims against the 1^st Defendant, and for the 1^st Defendant to be removed as a party to this action.

2. Leave be granted to the Plaintiff to add the personal representative of TSANG WAI YEE BELINDA, Deceased as the new 1^st Defendant in this action.

3. Further to paragraphs 1 and 2, leave be given to the Plaintiff to amend the Amended Writ of Summons in green as per the Draft Re-Amended Writ of Summons with the Re-Amended Statement of Claim endorsed annexed hereto. For the avoidance of doubt, corresponding amendments to the pleadings be dispensed with as the names of the parties in the existing pleadings remain the same.

4. Cost of the application under paragraphs 1 to 3 above be costs in the cause.”

(2) The 2nd category of Orders ie paragraphs 5 to 10 deal with amendments to the Amended Statement of Claim and the joinder of 2 additional Plaintiffs (“Category 2”).

(3) The 3rd category of Orders ie paragraphs 11 to 14 deal with the filing of witness statements (“Category 3”).

2.By Order dated 29 October 2020, Master Chow dismissed paragraphs 1 to 4 of the Summons and[1] adjourned paragraphs 5 to 14 sine die with liberty to restore (“Master’s Order”).

3.There is before this court the Plaintiff’s appeal by Notice of Appeal dated 12 November 2020 (“Plaintiff’s Appeal”) against the Master’s Order.  Essentially, what the Plaintiff seeks from this court is to completely set aside the Master’s Order and for an Order in terms of the entire Summons. 

4.Judging from Mr Lam’s skeleton submissions, it is fair to say that the crux of this appeal concerns the so-called “Reconstitution of the 1st Defendant” ie paragraphs 1 to 4 of the Summons.  If one looks at the draft Re-Amended Writ of Summons referred to in paragraph 3 of the Summons, what the Plaintiffs propose to do in terms of reconstituting the 1st Defendant is simply to cross out “The personal representative of TSANG WAI YEE BELINDA, Deceased” as the 1st Defendant on the face of the Writ and then put it back there underlined in green. 

5.Mr Chow for the 2nd Defendant adopts a neutral stance in this appeal. Previously, however, the Plaintiff and the 2nd Defendant had submitted a consent summons dated 17 June 2020 to the Court in the same terms as the Summons.  Master Chow refused to approve the Consent Summons and adjourned the matter twice while giving the Plaintiff leave to file further affirmations in support.  Eventually, Master Chow was still not persuaded that it was proper to grant the Category 1 Orders and hence this appeal. 

Background

6.According to the 2nd Affirmation of Tun Tin Yan Billy (“Tun 2”), which is the main affirmation in support of the Summons, and the Amended Statement of Claim, Madam Tsang Wai Yee Belinda (“Belinda”) passed away intestate on 31 May 2014 and was survived by inter alia her mother Madam Sun Ngor (“Madam Sun”). As Belinda passed away with no spouse or issue, Madam Sun as the sole surviving parent was the sole beneficiary of her estate.  On 16 March 2015, Letters of Administration were granted to Madam Sun as the sole administratrix of Belinda’s estate under Grant No HCAG 011430/2014.

7.Unfortunately, on 19 March 2015, Madam Sun also passed away leaving behind a will.  At the time of the death of Madam Sun, Belinda’s estate remained unadministered.

8.On 27 October 2015, Tsang Hoi (“Hoi”) and Tsang Yuen Yee Julia (“Julia”) as co-executors obtained a Grant of Probate in relation to the estate of Madam Sun under Grant No HCAG 012768/2015. 

9.About a year later, this Action was commenced by Writ of Summons on 29 September 2016 (“Writ”).  Since Belinda had already passed away, the personal representative of Tsang Wai Yee Belinda, Deceased was named in the Writ as the 1st Defendant pursuant to RHC O 15 r 6A(1) and (2).  The Writ was valid for service for 12 months but the Plaintiff has not served it on the 1st Defendant as there was no one to serve it on.  Nor has the Plaintiff taken steps during the period of validity of the Writ to appoint a person to represent Belinda’s estate under RHC O 15 r 6A(4). As a result, the validity of the Writ for service as against the 1st Defendant “expired” on 28 September 2017.

10.In April 2018, Julia was removed as co-executor of Madam Sun’s estate.  The Plaintiff’s legal advisers apparently consider Hoi, being the sole executor of Madam Sun’s estate, is entitled to apply for a grant of letters of administration or a grant de bonis non in relation to Belinda’s estate.  But the fact is no such application for the grant has been made and there was and still is no personal representative of Belinda as such.

11.This wholly unsatisfactory aspect of the proceedings was overlooked by the Plaintiff until requisitions were raised by Master Ho in September 2019.  The requisitions were made in connection with a consent summons dated 12 September 2019 of the Plaintiff and the 2nd Defendant for inter alia amendment of the Amended Statement of Claim and the adjournment of the Case Management Summons.

12.In February 2020, the Plaintiff tried to seek the consent of Hoi and the Official Solicitor to be appointed to represent the estate of Belinda.  As of now, no consent is forthcoming from either of them. 

Deliberation

13.If a writ of summons is not served on a defendant within its initial period of validity of 12 months, the normal course to take is to apply under RHC O 6 r 8(2) to extend its validity.  At paragraph 22 of his skeleton submissions, Mr Lam frankly admits that the Plaintiff is likely to encounter difficulties if she were to apply for an extension of the validity of the Writ against the 1st Defendant.  This is because carelessness, oversight or mistake on the part of a plaintiff may not amount to a good reason which can justify such an application.

14.Even if an extension of the validity of a writ is for whatever reason refused, a plaintiff is in principle free to issue a fresh writ against the same defendant[2] and proceed upon that, at least in cases where there are no limitation issues, which Mr Lam submits to be the case here against Belinda’s estate. 

15.But what the Plaintiff now seeks to do is neither of the 2 options. Instead, the Plaintiff is asking this court for a “Reconstitution of the 1st Defendant” in the way suggested in the Category 1 Orders.  This, as Mr Lam frankly accepts, is not a concept embodied in or recognised by the Rules of the High Court and no authorities have been cited in support of the validity or propriety of such an approach. 

16.Mr Lam however submits that this approach is “perfectly open on the rules”. The first step of this approach is to discontinue[3] the Action against the 1st Defendant in which case the 1st Defendant is no longer a party and the present proceedings no longer concern the 1st Defendant.  The rule relied upon is RHC O 21 r 3.  The second step is to immediately join the 1st Defendant as a party to the present proceedings.  The rule relied upon is RHC O 15 r 4(1). 

17.Looking at RHC O 21 r 3 on its own, there is of course no objection if a plaintiff wishes to wholly discontinue an action against a particular defendant, subject to terms as may be imposed by the Court as to costs and the bringing of a subsequent action etc.  However, this court is not persuaded that the legislative intent of RHC O 21 r 3 is to enable a plaintiff to discontinue an action against a defendant with a view to immediately “reversing” the discontinuance by joining him/her as a party in the same action.  Mr Lam has not addressed this court on the oddity of invoking RHC O 21 r 3 in this way or the question of legislative intent in his written or oral submissions.  Nor is he able to cite any authority which permits O 21 r 3 to be used in this manner.

18.Again, looking at RHC O 15 r 4(1) on its own, there is again no objection if a plaintiff wishes to join 2 persons together as defendants in one action, provided the conditions for the joinder or the granting of leave are met.  But in this case, the 1st and the 2nd Defendants had already been joined as co-defendants right from the beginning.  If the 1st Defendant had not been made a party from the beginning, the court also has power under RHC O 15 r 6(2)(b) to order a person to be added as a party if eg he/she ought to have been joined in the first place.  Since the 1st and the 2nd Defendants had already been joined as co-defendants right from the beginning, it seems to this court wholly contrived for the Plaintiff to remove the 1st Defendant as a party by discontinuing the Action against him/her so as to pave the way to immediately add him/her back as a party.

19.In this regard, paragraph 21 of Mr Lam’s skeleton submissions ie “What P seeks to do by §§1-4 of the Summons is not materially different from issuing a fresh action” belies the artificiality of the whole exercise.  One asks rhetorically, if issuing a fresh action is the legally recognised alternative to applying for an extension of the validity of the Writ, why not pursue this alternative, instead of going for something allegedly “not materially different”? If, as Mr Lam claims, it is open to the Plaintiff to start a fresh action against the 1st Defendant in order to address a problem which has been overlooked since the issue of the Writ, it seems to this court that should be the proper thing for the Plaintiff to do, rather than seeking to apply the Rules of the High Court to situations in which they are not demonstrably intended to apply.

20.A critical objection to the Plaintiff’s approach is that it will completely bypass RHC O 6 r 8(2) and render all the jurisprudence on it otiose, including the fundamental duty of a plaintiff to serve the writ promptly: Hong Kong Civil Procedure 2021 Vol 1 para 6/8/3. A plaintiff who has failed to serve the writ within its validity period will no longer have to satisfy the legal requirements for invoking RHC O 6 r 8(2) or to take the alternative course of issuing a fresh writ.  All that the plaintiff has to do is to cross out a defendant’s name on the writ and then immediately put it back on the writ by an amendment.  No doubt this course is much more convenient to the plaintiff or its legal advisers but that is hardly a sufficient reason to contort the rules in this way. 

21.For the above reasons, this court is not minded to set aside the Master’s Order dismissing paragraphs 1 to 4 of the Summons. 

22.As for the Category 2 and 3 Orders, Mr Lam very properly admits that it was at the behest of the Plaintiff that Master Chow adjourned them sine die with liberty to restore.  The reason was apparently that the Plaintiff wished to see what might happen to the appeal in relation to the Category 1 Orders in order to decide whether to further pursue them and/or to pursue them with modifications. In other words, the Plaintiff wished to keep her options open with regard to the Category 2 and 3 Orders. 

23.Mr Lam also very properly accepts that if this court does not allow the appeal in relation to the Category 1 Orders, then the Master’s Order to adjourn the rest of the Summons should not be disturbed.

Disposition and costs order nisi

24.For the above reasons, the Plaintiff’s Appeal is hereby dismissed.

25.As for costs, since the 2nd Defendant takes a neutral stance in relation to the Appeal, it seems to this court that the most appropriate course to take is to make no order as to costs and this court shall so order on a nisi basis.

Mr Keith Lam, instructed by Cheung & Choy, for the Plaintiff

Mr Enzo WH Chow, instructed by Kenneth C C Man & Co, for the 2nd Defendant