Sam Mo Yee v. Sam Sien San Albert and Another

HCMP 2139/2019

[2022] HKCFI 3153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2139 OF 2019

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Before:  Madam Recorder Rachel Lam SC in Court

Dates of Hearing:  5 October 2022

Date of Decision:  5 October 2022

Date of Reasons for Decision:  18 October 2022

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REASONS FOR DECISION

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A. INTRODUCTION

1.On 5 October 2022, I gave judgment in terms of the Amended Originating Summons in this matter dated 3 January 2022, the material particulars of which are set out in the Annex hereto.

2.The reasons for decision are set out below.

B.  BACKGROUND

3.This was an Order 85 application by the Plaintiff, seeking determination on various issues that had arisen in the estates of the late Wong Lai Chee (“the late mother”)  and the late Sam Tin (“the late father”)  (“the Estate”), who were the parents of the Plaintiff and the 1^st Defendant.

4.In March 1999, the late parents made and executed their respective last wills, which were effectively mutual wills and had identical terms save for name references.  The Plaintiff, the 1^st Defendant and the 2^nd Defendant (who is the 1^st Defendant’s son)  are made beneficiaries under the Will.

5.The late mother and late father passed away on 6 June 1999 and on 11 March 2011 respectively. Under the said wills, the Plaintiff and the 1^st Defendant were appointed as joint executors of the Estate.  Probate of the late parents were granted in July 2007 and in March 2008 respectively.

6.The gross value of Estate as of now is in the sum of HK$5,984,706.30, which essentially comprises: (1)  net proceeds of the sale of a property (in the sum of HK$5,433,033.01)  that had been paid into court; and (2) cash at bank in the total sum of HK$541,683.29.

7.There had arisen various disputes between the parties, some of which were resolved in previous proceedings, see [2019] HKCFI 764 and [2019] HKCFI 1188.

8.In these proceedings, the parties had asked the Court to determine various issues relating to the reimbursement of expense items, as well as to give further directions for the administration of the estate after the expenses have been paid.

9.Whilst the Defendants had previously filed evidence in opposition to the Originating Summons, they had not appeared at the substantive hearing despite having been served with notice of the same.  The hearing thus proceeded in their absence.  Per the terms of the Order of the Honourable Madam Justice B. Chu dated 27 July 2022, their evidence was not considered since they did not attend the trial for cross-examination.  The Plaintiff’s own evidence, which had taken into account various matters which had been raised by the Defendants previously, was taken into account as she did attend and affirmed the contents of her affirmations at trial.

C.  THE PLAINTIFF’S REIMBURSEMENT CLAIM

10.The Plaintiff’s claim for expenses is in the total sum of HK$674,073.22, of which HK$196,049.00 had been agreed, leaving a sum of HK$477,914.02 to be scrutinised by the Court.  These consisted of various items including sundry expenses, fees for the care homes where the late father stayed, funeral expenses, private nursing expenses and the costs of the probate application.

11.Having considered the evidence tendered I am satisfied that the total amount claimed is payable.  The Plaintiff had listed out the various expenses in July 2017 when seeking reimbursements from the Estate, and where possible, had adduced receipts or evidence of payments.  For various miscellaneous items for which there were not underlying documents available, she had provided evidence of cash payments by way of contemporaneous annotations made in her bank passbook. There was no reason to doubt her evidence or credibility in respect of the asserted expenditure.

D.  THE DEFENDANT’S REIMBURSEMENT CLAIM

12.The Plaintiff had agreed to the reimbursement of of the total sums of HK$122,303.68 and CAD$150.00 to the 1^st Defendant.  These consisted of management fees, government rates and rent paid in relation to landed properties from June 1999 until September 2011, storage charges for the late mother’s ashes from September 2009 to March 2012, and costs of the probate application, property, and cremation expenses.

13.There was a sum of HK$33,014.00 and CAD$61.65 which was disputed by the Plaintiff, the essential bases being that (i)  they had already been settled, (ii)  they were not properly evidenced and/or (iii)  that they were inappropriate amounts.  Insofar as the contentions that there was not sufficient evidence for certain items, I accept this submission after having perused the papers.  Insofar as the contention that the other amounts were settled and/or inappropriately claimed, I also agree with the Plaintiff’s stance.

E.  DISPOSAL

14.The reimbursement claims having been determined, I made the further orders for administration and distribution as sought. The proposals by the Plaintiff as embodied within the order (see Annex)  are reasonable considering the apparent difficulties in contacting and communicating with the Defendants, and I consider that this will facilitate a more efficient administration and distribution of the Estate going forward.

15.I thank counsel Mr Tim Yu for his assistance.

Mr Tim Yu instructed by Edward C.T. Wong & Co., for the Plaintiff

The 1^st and 2^nd Defendants unrepresented did not appear

Annex

1.  An order that the Plaintiff be paid a sum of HK$674,073.22 from the estate of the late WONG LAI CHEE, deceased and the estate of SAM TIN, deceased (collectively known as the “Estate”).

2.  An order that the 1^st Defendant be paid a sum of HK$122,303.68 and CAD$150 from the Estate.

3.  An order that the sum of HK$5,443,003.01, as paid into court as ordered on 12 January 2017 under HCMP 1203/2016, and all interest incurred thereof, be released to the Plaintiff (or alternatively be stakeheld by the Plaintiffs solicitors, Messrs. Edward C.T. Wong & Co)  for distribution to all the beneficiaries according to the Will of the late WONG LAI CHEE and of the late SAM TIN, having paid all outstanding debts and liabilities.

4.  An order that the sums of money as available in the bank accounts of the late WONG LAI CHEE and of the late SAM TIN as set out in their respective probate be released by the relevant banks, namely Citibank N.A. bank account nos. xxx and xxx, The Bank of East Asia Limited bank account nos. xxx and xxx and The Hongkong and Shanghai Banking Corporation Limited bank account no. xxx, respectively to the Plaintiff (or alternatively be stakeheld by the Plaintiffs solicitors, Messrs. Edward C.T. Wong & Co)  for distribution to all the beneficiaries according to the Will of the late WONG LAI CHEE and of the late SAM TIN, having paid all outstanding debts and liabilities.

5.  Costs of and occasioned by this amended originating summons (including all costs reserved)  and this substantive hearing be paid by the 1^st Defendant personally to the Plaintiff on a party-to-party basis, to be taxed if not agreed, with certificate for counsel.

6.  Costs of and occasioned by the applications to serve the concurrent originating summons to the 1^st and 2^nd Defendants overseas (as ordered by Master Phoebe Man on 16 March 2021 and as ordered by Master Rita So on 27 July 2021)  be paid by the 1^st and 2^nd Defendants to the Plaintiff on a party-to-party basis, to be taxed if not agreed.

7.  Costs and expenses incurred by the Plaintiff’s solicitors, Messrs. Edward C.T. Wong & Co (if any)  pursuant to paragraphs 3 and 4 above shall be recoverable against the Estate, to be taxed if not agreed.

8.  Liberty to apply.