Koo Ming Kown v. Young Kwok Hung Clement and Others

HCA 1619/2014

[2022] HKCFI 1881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1619 OF 2014

--------------------------

--------------------------

Before:  Deputy High Court Judge H. Au-Yeung in Chambers (Open to Public)

Date of Hearing:  20 June 2022

Date of Decision:  20 June 2022

--------------------------

DECISION

--------------------------

THE APPLICATION

1.In this action, the plaintiff sues the defendants[1] in passing-off and unlawful means conspiracy. The trial has been scheduled to commence on 13 September 2022 with 14 days reserved.

2.It was recently revealed by the 2^nd defendant in his supplemental witness statement filed on 25 May 2022 that the 1^st defendant had passed away in September 2021.

3.At the Pre-Trial Review today, the plaintiff applies, among other things, for an order pursuant to Order 15 rule 15 of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“the RHC”) that this action may proceed in the absence of any person representing the estate of the 1^st defendant.

4.This Decision will only deal with the aforesaid application made by the plaintiff.

RELEVANT BACKGROUND

5.The 1^st defendant, together with the majority of the other defendants herein, had all along been represented by the same firm of solicitors. Since 12 March 2019, they were represented by Messrs. Or & Partners (“OP”).

6.As aforesaid, it was only revealed by the 2^nd defendant in his supplemental witness statement filed on 25 May 2022 that the 1^st defendant had passed away back in September 2021.

7.By letter dated 30 May 2022, OP enquired with the plaintiff’s solicitors as to whether the plaintiff would discontinue this action and HCA 1481/2014 against the 1^st defendant with no order as to costs. There is no doubt that OP must be aware of the passing of the 1^st defendant by the time when this letter was issued, because OP was also representing the 2^nd defendant at that time.

8.By letter of even date, the plaintiff’s solicitors replied that the plaintiff would continue his claims against the 1^st defendant. They further asked OP for information concerning the appointment of executor/administrator of the 1^st defendant’s estate.

9.On 10 June 2022, OP replied that as they had no instruction to act for the estate of the 1^st defendant, they did not have any instruction to supply the plaintiff with the information requested.

10.The plaintiff’s solicitors then conducted a search at the Probate Registry but were unable to find any record of any probate or letters of administration granted or applied for in respect of the estate of the 1^st defendant.

11.The plaintiff’s solicitors therefore followed up the matter by letter dated 13 June 2022, by which they enquired with OP further as to whether OP knew of any relative or family member of the 1^st defendant who might be willing to represent the estate of the 1^st defendant in this action, and whether any of the defendants represented by OP would be willing to represent the estate of the 1^st defendant herein.

12.OP did not reply to this enquiry.

13.The plaintiff therefore made this application pursuant to Order 15 rule 15 of the RHC.

14.At the hearing, the other defendants indicated that they shall remain neutral in this application.

DISCUSSION

15.Order 15 rule 15 of the RHC 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 fit.”

16.As it appears that no executor or administrator has been appointed in relation to the 1^st defendant’s estate yet, the Court has a discretion to order that these proceedings may be continued in the absence of a person representing the estate of the 1^st defendant.

17.The Court has to take into account all relevant circumstances when exercising this discretion.

18.The starting point is that it is preferred to have someone appointed as the representative of the 1^st defendant’s estate, so as to ensure that its interest would be best protected.

19.Be that as it may, I do not think this should be done at all costs.

20.In the present case, once the plaintiff’s solicitors were informed about the demise of the 1^st defendant, they had immediately asked OP for assistance in finding out whether any executor/administrator had been appointed and in identifying any relative, family member or even co-defendants of the 1^st defendant who would be willing to represent the estate of the 1^st defendant, but to no avail.

21.It is of course open to this Court to adjourn the whole matter so that the plaintiff may take further steps in finding out whether any willing representative can be located. However, the trial has been scheduled to start in less than 3 months’ time. If the whole matter is adjourned, it is likely that the trial date would have to be re-fixed. Given the estimated length of the trial is 14 days, the new trial date may well be in 2024. This delay is very undesirable, especially when this action was commenced in 2014.

22.On the other hand, it is noted that the issues raised by the plaintiff against the 1^st defendant overlap quite substantially with those raised against the other defendants. Indeed, the 1^st defendant had been represented by the same firm of solicitors as the 2^nd – 4^th, 7^th – 9^th and 11^th – 13^th defendants all along, and they had relied on the same set of Defence in which all lines of defence had been taken collectively. I accept Ms Tong’s argument that any issue which is relevant to the 1^st defendant’s legal position will be covered and addressed by those other defendants at the trial.

23.I am therefore satisfied that there is no real likelihood that the making of the order requested for will cause any real prejudice to the interest of the estate of the 1^st defendant.

24.Having balanced all the above matters, I accept that it is appropriate in the circumstances to make the order sought.

ORDER

25.I therefore accede to the plaintiff’s application and make the following orders:

(1)  The proceedings in this action be continued as between the plaintiff and the estate of Young Kwok Hung Clement as the 1^st defendant;

(2)  This action shall proceed in the absence of a person representing the 1^st defendant;

(3)  Paragraphs (1) and (2) of this order and any judgment or order subsequently given or made in these proceedings shall bind the 1^st defendant to the same extent as it would have been bound had a personal representative of Young Kwok Hung Clement been a party to these proceedings.

COSTS

26.Parties agreed that costs of this application should be in the cause. I therefore order accordingly.

Ms Sara Tong, S.C. leading Mr Eugene Kwan, instructed by Lily Fenn & Partners, for the plaintiff

Mr Abraham Chan, S.C. leading Mr Richard Yip, instructed by Or & Partners, for the 2^nd to 4^th, 7^th to 9^th and 11^th to 13^th defendants

Mr Keith Chan, instructed by Karas LLP, for the 5^th defendant