Ip (or Yip) Cheung (or Chiang) Kwok and Another v. Ip Siu Bun and Others

CACV000079B/1988

Headnote

(1) The High Court has jurisdiction (in the strict sense of that term) to grant relief to a sole beneficiary of the estate of a settlor who has died intestate (and in respect of whose estate no grant of letters of administration has been obtained) against the trustees of the settlor's inter vivos settlement where the relief claimed is a declaration that the trustees hold the settled property on resulting trust for the settlor's estate.

(2) However such jurisdiction is not properly exercisable, except in very special circumstances (which did not exist in the present case), in the absence of the duly constituted personal representative of the settlor or the representation of his estate in the proceedings by a person duly appointed for the purpose under Order 15 rule 15.

(3) In the present case where, without complying with the requirements stated at (2) above, the person claiming to be the sole beneficiary of the settlor's estate had issued his writ claiming the declaratory relief in question and proceeded to the trial of his original action and of a counterclaim by the trustees of the settlement for declaratory relief affirming the validity of the trusts of the settlement, the proceedings were not a nullity but merely irregular, and the trial judge had jurisdiction in all the circumstances to make an order under order 15 rule 15 whereby the plaintiff was appointed to represent the settlor's estate for the purposes of the proceedings.

BETWEEN

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Coram: Hon. Cons, V.-P., Kempster & Clough JJ.A.

Date: 25 October 1989

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JUDGMENT ON PRELIMINARY ISSUE

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Clough, J.A.:

1. Sin Hua Bank Trustee Limited ("the Bank"), which was the fourth defendant and plaintiff by counterclaim below, appeals against a number of orders made by Godfrey J. in an action brought by the plaintiff Mr Ip Cheung Kwok concerning the trusts affecting two leasehold properties, namely Nos. 152, 154 and 156 Queen's Road, ("the trust property") Central, Hong Kong, which at all material times have been, held as trustees by the Bank and Mr Ip Siu Bun ("the first defendant") who was the first defendant in the original action and the third defendant to the Bank's counterclaim below. The Bank applied on the 7th day of the hearing of this appeal for leave to amend its grounds of appeal by adding a further or alternative ground ("ground H") attacking the validity of a representation order made by the judge at the trial of the action in terms and circumstances indicated below In the course of the application we listened for the best part of 11 days to full argument on behalf of the interested parties on the merits of ground H.

2. The relevant background is as follows. The plaintiff issued his writ on the 1st November 1984 against four defendants. The first defendant and the Bank were sued as trustees of the trust property. The second and third defendants, who are respectively the wife and brother of the first defendant, were sued as former trustees. At an early stage in the trial the plaintiff obtained leave to discontinue against the third defendant.

3. The plaintiff sued in his personal capacity, claiming to be the next of kin (on the basis of collatoral male agnatic succession and a right to adoption under Ching law) of a deceased settlor Ip Koo Chi whom the plaintiff alleged had procured the assignment of the trust properties to trustees in 1875 upon trust for the benefit of two Ip mainland Chinese family tongs. The plaintiff claimed that the trusts were void for perpetuity and other reasons and that a resulting trust arose in favour of the settlor's estate. He asked for declarations to that effect, for an account of what was due to the settlor's estate and for a declaration that he was "the beneficiary of the estate" of the settlor. It is common ground that the settlor had always been domiciled in China, that he died intestate and that no grant of letters of administration had been obtained in respect of his estate at the date the plaintiff issued his writ.

4. The Bank denied the plaintiff's claim to be the next of kin of the settlor but did not initially plead positively any factual basis for so contending or that there were other persons entitled to claim in that capacity; nor did the Bank initially plead that ho grant of letters of administration had been obtained by the plaintiff or any other person.

5. However on the 2nd September 1987 the Bank's solicitors sent a letter to the plaintiff's solicitors contending that the plaintiff had no locus standi in his action. It was pointed out that the plaintiff's father was still alive. I interpose that this seems to have resulted in discovery by the plaintiff's solicitors on the 7th September 1987 of a deed of assignment made on the 1st October 1982 whereby the plaintiff's father IP Chiu Shuen assigned all his rights of inheritance to the plaintiff. It was also alleged in the Bank's solicitor's letter that the plaintiff was not a direct descendant of the settlor and that there were such descendants in being. In the same letter reliance was also placed on the absence of any grant. This was followed by a notice of motion dated the 9th September 1987 returnable on the 14th September 1987 (the first day of the trial) giving notice of the Bank's application to strike out the plaintiff's claim and dismiss his action on the ground that he had no locus standi to bring the action.

6. As to the trusts affecting the property, the Bank, by its re-amended defence filed before the trial, denied the resulting trust claimed by the plaintiff and pleaded that the first defendant and the Bank were trustees of the trust property for the two family tongs which were "at all material times, in law and in fact, legal entities capable of holding land and are and were at all material times valid charitable trusts". By its amended counterclaim filed before the trial, to which the plaintiff, the Attorney General and the first defendant were made defendants, the Bank claimed declarations to the effect that (1) each of the tongs (also allegedly known as Loan Associations) were at all material times charitable trusts and/or alternatively valid trusts; (2) the trust properties were held by the first defendant and the Bank as trustees "for the said charitable trusts to be dealt with in accordance with the rules thereof" and (3) members of the tongs "were at all material times and are beneficiaries under the said charitable trusts".

7. Before the trial the first, second and third defendants to the plaintiff's action filed a pleading, which was the amended defence of the first defendant and the defence of the second and third defendants. It was signed by their then counsel. In this pleading they denied that the plaintiff had any interest in either of the properties or that the trusts in favour of the tongs were "created or caused to be created by" the settlor "or at all". It was pleaded inter alia that insofar as might be necessary the relevant defendants asserted that both the tongs were charitable trusts. The pleading contained a denial of the plaintiff's locus standi in the proceedings.

8. Before the trial the plaintiff filed a further re-amended reply and defence to the Bank's re-amended defence and counterclaim. The plaintiff also filed a Reply to the amended defence of the first defendant and the defence of the second and third defendants. The content of the Replies is not material at this stage. The Attorney General filed a defence to the Bank's amended counterclaim denying that the relevant trusts were charitable and the Bank's claims to any relief.

9. The trial of the action began on the 14th September 1987. The plaintiff was represented by leading counsel (Mr. McDonnell). The Bank was represented by two leading counsel (Messrs Ching and Chang). The Attorney-General appeared initially by counsel (Mr. Minchen The first second and third defendants appeared in person. It seems that leading counsel for the plaintiff and for the Bank wished to amend their respective pleadings as soon as an opportunity' presented itself The first defendant wished to file a defence and counterclaim in respect of the Bank's re-amended defence and counterclaim.

10. On the second day of the trial Mr Ching for the Bank asked the judge to deal with his application to strike out the plaintiff's claim and dismiss his action for want of locus standi. The judge declined to do so, expressing the view that it would be more convenient to determine first the nature and validity of the trusts affecting the trust property. I will return to this matter below.

11. On the sixth day of the trial the judge dealt with the outstanding applications to amend pleadings. He granted leave to the plaintiff to make a number of amendments, including the pleading of the deed of assignment made between the plaintiff's father and the plaintiff on the 1st October 1982. For the plaintiff Mr. McDonnell sought to introduce an amendment to his amended statement of claim to the effect that if (which the plaintiff did not admit) the trust property was held on valid trusts for the descendants of the original Yip family ancestor, Yip See Shing, the plaintiff was a beneficiary of such trusts. The judge disallowed this proposed amendment and the prayer for relief claimed on it, but indicated that if he gave the Bank leave to amend its defence to raise a claim of a valid private trust he would give the plaintiff leave to amend his reply to make it clear that if the Bank were to succeed on its allegation of private trust, then the plaintiff claimed to be a beneficiary under such a trust.

12. The Bank did obtain leave to amend its pleading to introduce inter alia allegations of private trusts in both the Bahk's re-re-amended defence and counterclaim. In particular paragraph 12A of the re-re-amended defence was introduced in the following terms:

"12A (1) Alternatively the beneficial interest in the said properties was and is vested in the members of the said Tongs to be dealt with in accordance with the rules of the said Tongs and the lst and 4th Defendants are holding each of the trust properties on a valid private trust for the members.

(2) The members of the said Tongs were all those entitled to worship at the Great Ancestral Hall of Yip See Shing, namely, the agnatic descendants of Yip See Shing."

13. At the time he allowed these amendments to the Bank's pleadings the judge made it clear that he would not shut out the plaintiff from claiming that he was entitled to claim as one of the persons qualifying for a beneficial interest if a private trust were established. The further, re-re-amended reply to the Bank's re-amended defence and counterclaim accordingly contained the following allegation in paragraph 3A:

"3A. In reply to paragraph 12A of the Re-re-amended Defence, if (which is denied) the 1st and 4th Defendants are holding the said properties on a valid private trust for the descendants of Yip See Shing or any of them, the Plaintiff is a beneficiary of such trust and entitled to an Account in that capacity."

14. These allegations 'were not expressly repeated in the plaintiff's further re-amended defence to the Bank's re-amended counterclaim which was not amended in its heading to become the plaintiff's further re-re-amended defence to re-amended counterclaim. However I entertain no doubt but that this was a slip which, if necessary, this court should cure by permitting the appropriate formal amendment.

15. The first defendant's attempt to file his proposed defence to the Bank's counterclaim and his counterclaim to the Bank's counterclaim seems to have been misapprehended by both Mr. McDonnell and Mr. Ching (Transcript for Day 2 at p.21 F-H) and by the judge (Transcript for Day 6 at p.53E) to be intended to be substituted for the professionally drawn amended defence of the first defendant (and defence of the second and third defendants) to the plaintiff's statement of claim. Treating-it as such, the judge disallowed the proposed pleading but indicated that he proposed to keep its contents in mind.

16. In his proposed pleading the first defendant had referred to two previous actions concerning the trust property in which he had been involved. The first action (High Court Misc. Proceedings No. 104 of 1977) was brought by the two tongs and others against the first defendant and his co-trustee of the trust property claiming inter alia that the tongs were the beneficiaries under the trusts affecting the property and that the trusts were charitable. It was alleged that since 1971 the defendants had failed to remit rents of the properties to the members of the tongs and the relief sought included removal of the defendants as trustees.

17. This action was settled by a consent order made on the 31st March 1979 by Sir Geoffrey Briggs C. J. The order included recitals that on the 30th March 1979 the first defendant in the present proceedings and the Bank had been appointed trustees of No. 152 Queen's Road, Central and that on the 22nd March 1979 the first defendant in the present proceedings had signed undertakings confirming that the two tongs were respectively beneficiaries under the trusts affecting No. 152 (in the case of one tong) and Nos. 154 and 156 (in the case of the other tong). The operative part of the order appointed the first defendant in the present proceedings and the Bank trustees of Nos. 154 and 156 Queen's Road, Central, stayed the proceedings with liberty to restore and dealt with costs.

18. The second action (H.C.A. No. 5195 of 1981) was brought by Gainer Limited against five defendants including the two tongs, the Bank and the first defendant in the present proceedings claiming inter alia specific performance of an alleged agreement made by the tongs through their representatives on the.15th April 1980 for the sale and purchase of the trust properties for $28.75 million. That action has evidently gone to sleep.

19. In his proposed pleading the first defendant had sought to plead to the Bank's counterclaim against him that the Attorney-General should not be made a party to the proceedings. As he was bound by the consent order in the 1977 action he raised no objection to the Bank's counterclaim except in respect of its prayer for costs and further or other relief. By way of his own counterclaim to the Bank's counterclaim the first defendant sought an "enquiry about the whole matter and to find out who are the beneficiaries of the trust properties". In the alternative he sought consolidation of these proceedings with the 1977 action. The judge was not prepared to grant the consolidation application but regarded himself as embarking on the enquiry suggested by the first defendant.

20. On the sixth day of the trial, after the judge had dealt with the various applications to amend the pleadings, Mr. Ching reminded the judge that his strike out application was still extant. After a fairly lengthy exchange between Mr. Ching and the judge during which Mr. Ching's points included the absence of a grant to the settlor's estate and the non joinder of the Official Administrator, the judge raised the question whether he could not exercise his powers under Order 15 rule 15 and appoint the plaintiff. to represent the settlor's estate. Mr.WcDonnell supported that course of action. Mr. Ching and the first defendant opposed it. The judge decided to make the order and appointed the plaintiff pursuant to Order 15 rule 15 to be the representative of the settlor's estate for the purposes of these proceedings. The order was expressed to have been made on the application of the plaintiff

21. Thereafter the proceedings continued until the 7th October 1987 (Day 17) when they were adjourned. The trial resumed on the 11th April 1988 (Day 18) and continued until the 29th April 1988 (Day 32) when the judge reserved his judgment until the 18th May. After the sixth day of the trial numerous witnesses were called by the plaintiff and the Bank. During this period the plaintiff remained on the record both in his personal and representative capacity. The Bank adduced evidence directed to the next of kin issue and sought to destroy the plaintiff's claim to be the sole person beneficially entitled to the estate of the settlor.

22. Mr. McDonnell had become aware, as soon as the Bank named persons (Chi Keung and Chi Ying), who were not parties to the proceedings, as rival contenders to the beneficial entitlement to the settlor's estate, that the plaintiff could not expect to obtain a declaration of his beneficial entitlement that would bind Chi Keung or Chi Ying or any other person claiming to be the settlor's next of kin who was not a party to the proceedings.

23. On and after the tenth day of the trial he made a succession of unsuccessful applications to the judge under Order 33 rule 3 for a direction that the question of the beneficial entitlement to the settlor's estate be determined after the trial. The trial continued with the issue of the plaintiff's contested sole beneficial entitlement to the settlor's estate alive.

24. When he delivered his reserved judgment on the 18th May 1988 the judge dealt first with the issues concerning the nature of the trusts affecting the trust properties. For reasons which are not now material he rejected the Bank's contention that the trusts were charitable or otherwise-valid private trusts and held that since 1875, when the settlor had assigned the trust properties to the original trustees, they had been held on resulting trust for the settlor and, after his death, for his estate.

25. He made no decision on the issue raised by the plaintiff's claim to be the sole next of kin and beneficiary of the settlor's estate. The judge had indicated when he reserved judgment on the 29th April (Day 32) that he did not intend to hear any argument when he handed down or delivered judgment and that he would state expressly in his judgment that consideration of questions arising as a result of his judgment or matters which needed to be disposed of ought to be dealt with on another day. Accordingly, having found in his judgment ([1988] 2 H.K.L.R. 24.7) that the trust property was held on resulting trust for the settlor's estate, he asked rhetorically at p.254E what was to be done and went on to say:

"I can grant no relief to the plaintiff in his personal capacity. In that capacity he has no interest in the properties. In his capacity as the person appointed to. represent the estate of the settlor for the purposes of these proceedings I am of the view that he is entitled to a declaration that the trustees hold the properties upon a resulting trust for that estate. But he represents that estate only for the purposes of these proceedings. He is not a person to whom letters of administration to that estate have been granted. It seems to me desirable that such a grant of representation should be made as soon as possible. Other grants of representation to the estates of deceased intestate male next-of-kin might in due course also be required. In this connection, I should note that I received much evidence about the male descendants of the settlor. Although I cannot make any findings of fact binding on anybody not a party to this action it may be helpful if I state my provisional views upon that evidence. These are as follows.

The settlor had two sons who survived him, namely Ip Wah Cho and Ip Wah Kui. Ip Wah Cho had (at least) one son, Ip Chi Suen. Ip Chi Suen had (at least) one son, Ip Hin Bun. Ip Hin Bun had two sons Ip Chi Keung and Ip Chi Ying. The only living direct male descendants of the settlor are the last-named two sons of Ip Hin Bun. Further than this I do not think it desirable for me to go. In particular, I do not think it would be right for me to express a view as to who is or may be entitled to a grant of administration to the settlor's estate which may for all I know become a matter for contest before the court in the exercise its probate jurisdiction; nor for me to express a view as to who is or may be (directly or indirectly) beneficially interested in the settlor's estate."

26. The judge went on to make suggestions regarding the action that might be taken by duly constituted personal representatives of the settlor in this matter and adjourned to a future date the consideration of the terms of the order to be made by him and of the application for an order sale of the trust property which had been made by the plaintiff on the last day of the trial as a result of observations by the judge regarding the apparent expediency of such a sale.

27. On the 17th October 1988 the judge made the order consequential upon his judgment declaring that the trust property was held upon resulting trust for the settlor or his estate. He dismissed the Bank's counterclaim and directed the first and second defendants and the Bank to account for the rents and profits of the trust property and pay them into court. He also dealt with the costs of the original action and counterclaim. He refused to order the sale of the property, holding that the plaintiff was not entitled to such relief in either his personal or his representative capacity.

28. On the 23rd Match 1989, while the Bank's appeal was pending the judge made an order, in probate proceedings begun by the plaintiff on the 4th November 1988, for the grant of grant of administration pendente lite to the plaintiff pursuant to section 40 of the Probate and Administration Ordinance (Cap. 10). Pursuant to that order letters of administration limited to the immovable property of the settlor in Hong Kong were granted on the 22nd May 1989.

29. On the same day (the day before appeal began) the judge made an order in these proceedings inter alia giving the plaintiff leave to re-amend his amended writ by adding (1) to the description of his capacity the words "and as the Administrator of the said Estate pendente lite" and (2) the following additional sub-paragraph in the prayer for relief:

"(9) Execution of the trusts affecting the said properties".

30. This order is one of the subjects of the present appeal but Mr. Chang for the Bank has conceded that 0.20, rule 5 is sufficiently wide to have given the judge jurisdiction to grant leave to make the amendment after the trial. However, when granting leave to make the amendments the judge was at pains to impose the following condition to ensure that the Bank would not be prejudiced thereby for the purposes of this appeal:

"AND IT IS FURTHER ORDERED (for the avoidance of doubt) that the making of the said amendments is to be without prejudice to the position of any of the parties in relation to any of the proceedings in this Action and Counterclaim down to the date when the said amendments are made and in particular that the Plaintiff is not to be placed in any better position as against any of the other parties hereto any reason of the said amendments than if he had commenced a separate action today for the execution of the said trusts".

31. It is against this background that the question of, granting or refusing leave in respect of ground H has to be considered.

32. The ground is expressed in the following terms:

"H. Further or alternatively, by reasons of the Plaintiff's lack of interest in the trust estate on (sic) any locus, the Learned Judge, erred in making the said Representation Order. The Plaintiff's action was not properly constituted and ought to have been dismissed."

33. Appropriate amendments to the prayer in the Notice of Appeal are also sought. f1r. Chang applied for leave to introduce the following prayer:

"That the action be dismissed and that so far as maybe necessary for that purpose, that the representation order be set aside."

34. There is already a prayer in the Notice of Appeal for the setting aside of the judge's order dismissing the Bank's counterclaim that the trusts are valid charitable or alternatively valid private trusts.

35. From time to time the first and second defendants as respondents to the appeal have made observations and submissions but they have, understandably, not been pertinent to the questions of law and procedure which arise.

36. For my part I would be most unwilling to accede to the granting of leave on such a late application in the circumstances of the present case unless satisfied that if leave were given there would be strong grounds for contending that the representation order was made without jurisdiction and that as a result the entire proceedings on the plaintiff's claim and the Bank's counterclaim or one or other of them were a nullity. The position now is that the proceedings below have resulted in the determination (albeit subject to the outcome of this and probably further appeal) by the court of the nature of the trusts affecting the trust property. The Bank as trustee has no beneficial interest in the property, nor has it ever had any claim to such an interest. As a corporate trustee it is under a duty to take all appropriate measures to have any uncertainty (as evidenced by the 1977 and 1981 actions) concerning the true nature of the trusts determined by the court. If the entire proceedings were to be rendered nugatory by the success of ground H, without any decision on the substantive issues in this appeal, there will have been a lamentable expenditure in costs to no purpose and the Bank would remain in serious jeopardy if it were to resist the administrator's demand for the property on the strength of Godfrey J.'s judgment.

37. Mr. Chang for the Bank sought to meet these difficulties by indicating that if, as he had contended, the counterclaim was not properly constituted (by reason of its having been made in invalid proceedings), then the Bank would nevertheless not object to this court determining the substantive issues of law arising on the appeal concerning the trusts, because the plaintiff could be accepted as being properly before the court as administrator pendente bite with effect for the 22nd May 1989.

38. I have difficulty in accepting that this court could treat proceedings as a nullity for one purpose but not another. Be that as it may the Bank's attitude demonstrates its concern to introduce and succeed on ground H even if the result might only be to reverse the judgment in the original action and leave the common substantive issues to be determined in the appeal against the judgment on the counterclaim. Ultimately, as Mr Chang admitted at the conclusion of his submissions, this appeal is brought by a party which is a trustee and is primarily, if not solely, concerned with costs. Unless prevented from so doing by the unavoidable conclusion that the proceedings in the original action or the counterclaim, or both, were nullities I would not grant leave for ground H and would leave the Bank to rely on matters concerning the representation order in support of its grounds of appeal on costs.

39. The first question concerns the right, if any, of the plaintiff to commence the proceedings in his personal capacity as a person claiming to be the settlor's next of kin for declaratory relief and accounts in respect of property which, if the claim were upheld, was held by trustees of an inter vivos settlement on resulting trust for the intestate settlor's unadministered estate in Hong Kong. Put another way, if the judge had not made the representation order on the sixth day of the trial or at a later stage of the trial should he have acceded to the Bank's application to strike out the plaintiff's original action on the basis that the plaintiff had no locus standi?

40. The first limb to Mr. Chang's argument was that the plaintiff had no interest in the proceedings. Upon this proposition he built his second proposition that the proceedings were therefore invalid so that no representation order could be made in them under Order 15 rule 15.

41. Mr. McDonnell for the plaintiff contended that Mr. Clang's first proposition was wrong because a next of kin of an intestate deceased has a sufficient interest in the deceased's unadministered estate to entitle him to invoke the court's discretionary jurisdiction to grant declaratory relief under Order 15 rule 16.

42. Mr. McDonnell rightly reminded us that the inherent jurisdiction of the court to grant declaratory relief is very wide. In this connection he cited Guaranty Trust Company of New York v: Hannay & Co. [1915] 2 KB 536 (C.A.); Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. [1921]AC 438 (HL); Ruislip-Northwood Urban District Council v. Lee (1931) 145 L.T. 208 (C.A.); Ibeneweka v. Egbuna [1964]1 WLR.219 (P.C.) and In re F(Mental Patient : Sterilisation) [1989] 2 WLR 1025 (H.L.).

43. He then went on to cite Commissioner of Stamp Duties (Queensland) v. Livingston [1965]A.C. 694 (P.C.) regarding the nature of the right of a person who is beneficially interested in the unadministered estate of a deceased person. In that case the Privy Council was consiuering whether for the purposes of a revenue statute there had been a "devolution by law of any beneficial interest in property ... upon the death any person to any other person" in circumstances where the relevant death was that of a widow who was entitled to a one third share in the residuary estate of her deceased husband which was still in the course of administration by his executors at the date of her death.

44. The Commissioner's claim for duty in respect of the widow's share of the Queensland assets of her husband on the ground that her death conferred a succession on those becoming entitled to her estate was rejected Applying Sudeley (Lord) v. Attorney-General [1897]A.C. 11 (H.L.) and Dr. Barnardo's Homes v. Special Income Tax Commissioners [1921] 2 A C. l, the Privy Council held that in the case of an unadministered estate the assets as a whole were in the hands of the executor, his property, and until, administration was complete it could not be said of, what the residue, when ascertained, would consist of or what its value would be As the testator's property in Queensland was vested in his executors in full right no beneficial interest in any item of that property belonged to the widow.

45. At page 707 B-D of the report Viscount Radcliffe observed regarding the respective interests of an executor and beneficiary in an unadministered estate:

".... Whatever property came to the executor virtute officii came to him in full ownership, without distinction between legal and equitable interests. The whole property' was his. He held it for the purpose of carrying out the functions and duties of administration, not for his own benefit; and these duties would be enforced upon him by the Court of Chancery, if application had to be made for that purpose by a creditor or beneficiary interested in the estate."

At p.707 F-G he said:

"What equity did not do was to recognise or create for residuary legatees a beneficial interest in the assets in the executor's hands during the course of administration."

46. After explaining the difficulties arising from the wide meanings of terminology such as "interest" and. "property" Viscount Radcliffe observed at p.713A:

"If 'by beneficial interest in the items' it is intended to suggest that such beneficiaries have any property right at all in any of those items, the proposition cannot be accepted as either elementary or fundamental. It is, as has been shown, contrary to the principles of equity. But, on tire other hand, if the meaning is only that such beneficiaries are not without legal remedy during the course of administration to secure that the assets are properly dealt with and the rights that they hope will accrue to them in the future are safeguarded, the proposition is no doubt correct. They can be said, therefore, to have an interest in respect of the assets, or even a beneficial interest in the assets, so long as it is understood in what sense the word 'interest' is used in such a context."

47. After re-iterating that the question before them arose in a revenue context Viscount Radcliffe concluded by saying pp.716G - 717A-D:

"It is not enough for this purpose to speak of an 'interest' in a general or popular sense. It is apt to recall what Lord halsbury L.C. said on this point in-his speech in the Sudeley case ([1897] AC 11,15]: 'With reference to a great many things, it would be quite true to say that she had an interest in these New Zealand mortgages - that she had a claim on them: in a loose and general way of speaking, nobody would deny that that was a fair statement. But the moment you come to give a definite effect to the particular thing to which she becomes entitled under his will, you must use strict language, and see what it is that the person is entitled to; because upon that in this case depends the solution of the question. It is idle to use such phrases as ... that she had an interest in this estate'. If the present appeal is tried by this test, which they accept as the correct one, their Lordships regard it as clearly established that Mrs. Coulson was not entitled to any beneficial interest in any property in Queensland at the date of her death. What she was entitled to in respect of her rights under her deceased husband's will was a chose in action, capable of being invoked for any purpose connected with the proper administration of his estate;"

48. Thus in a wide or popular sense the plaintiff (assuming his claim, to be the sole beneficiary to the unadministered estate of the settlor to be established) may be said to have an interest in the assets comprising that estate, but that interest is protected, not by conferring upon him any legal or beneficial interest but a chose in action enabling him to obtain the protection of the court to ensure the due administration of the assets in the estate by the settlor's personal representatives. The position is, as always; helpfully and accurately stated in Spell, 28th edition at pp.26 and 338 inhere the beneficiary's interest is described as no more than what may be called a "floating equity" in any asset to which he is, prospectively entitled, the reason being (see Snell at p.27) that, even in the case of a solvent estate the beneficiary cannot know until the administration is complete which particular asset will constitute the residue on the final distribution. The interest is thus inchoate and uncertain as regards any particular asset.

49. Mr. Chang went so far as to contend that the court had no jurisdiction to make any of the declarations sought by the plaintiff, because the plaintiff had no sufficient interest in the trust property He cited Garthwaite v. Garthwaite [1964] P.356 (C.A.) in support of that proposition. I am unable to accept that Garthwaite advances Mr. Chang's argument based on jurisdiction in the strict sense contemplated by Diplock L.J. at p.387, as distinct from jurisdiction in its wider sense as referable to the settled practice of the court to exercise or to refuse to exercise its powers in appropriate circumstances although such powers are strictly within its jurisdiction.

50. The circumstances in Garthwaite were clearly distinguishable from the circumstances in the present case. There the court held that for reasons connected with the domicile of the petitioning wife, the court had no jurisdiction to entertain the matter at all. Once that was decided it followed that because Order 15 rule 17 (now Order 15 rule 16) related only to practice and procedure and could not be construed so as to create a jurisdiction which did not otherwise exist tee Barraclough v. Brown [1897] A.C. 615 (H.L.) per Lord Davey at p.624) it followed that there could be no jurisdiction under the rule to grant the petitioner the declaration she sought.

51. In the present case the court was clearly competent, in the strict jurisdictional sense contemplated by Diplock L.J. in Garthwaite, to grant declaratory relief determining the true nature of the trusts affecting the trust property: see the Supreme Court Ordinance (Cap. 4) section 12(2)(a). It could certainly have done sot the instance of the duly constituted personal representatives the settlor whose proprietyrights were in question. For my part, I would go further and hold that as a matter solely strict jurisdiction, the court was competent to grant declaratory relief to the plaintiff (assuming that he established his beneficial entitlement to the estate of settlor in Hong Kong) regarding the nature of the trusts affecting the trust property to which the personal representatives of the settlor were solely and wholly legally and beneficially entitled, but in which the plaintiff (on the same assumption as above) was indirectly and uncertainly interested in the wide popular sense recognised by Viscount Radcliffe in Livingston.

52. In adopting that view I am influenced by theconsistent weight of high authority indicating that the jurisdiction of the court to grant declaratory relief in matters within ist strict jurisdiction is in effect so wide as to be limited only by its own discretion: see the authorities recently cited in Terrian Ltd. v. Oriental Peer Co. Ltd. [1988]1 HKLR 246 (C.A.).

53. In Ibeneweka v. Egbuna [1964] 1 WLR 219 (P.C.) at p. 224 Viscount Radcliffe said of the then Order 20 rule 5 (now Order 15 rule 16) of the English Rules of tire Supreme Court:

"Much has been said in various reported judgments about the nature of the power thus vested in the courts, but none of these observations detracts from the two primary considerations, that the power to make declarations is conferred surely not by accident, in wide and general terms, and that what is conferred is a discretion to be exercised according to the facts of each individual case."

In the same case, after adverting to previous judicial exhortations to exercise the jurisdiction to grant declarations sparingly and with great care, Viscount Radcliffe observed at p. 225:

"After all it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be call for their making Beyond that there is no legal restriction on the award of a declaration.

54. The width of the court power to grant declaratory relier has recently been emphasised by the House of Lords albeit in an entirely different context in In re F (Mental Patient : Sterilisation ) [1989] 2 W.L.R. 1025 (H.L.). Lord Brandon said at p. 1074E-F:

"I turn fourthly and lastly to the jurisdiction to make declarations. I do not think that it is right to describe this jurisdiction as being under R.S.C. Ord. 15 r. 16. The jurisdiction is part of the inherent jurisdiction of the High Court, and the rule does no more than say that there is no procedural objection to an action being brought for a declaration whether any other kind of relief is asked for or available or not."

55. Lord Goff cited with approval at p. 1091E-F the following dictum of Pickford L.J. in Guaranty Trust Co of New York v. Fiannay & Co [1915] 2 KB 536 (C.A.) at p.562:

"I think therefore that the effect of the rule is to give a general power to make a declaration whether there be a cause of action or not, and at the instance of any party who is interested in the subject matter of the declaration.

56. Lord Goff also cited with approval at p. 1091G-H the often cited passage in the judgment of Bankes L.J. in the Guaranty Trus case at p.572 which includes the following dictum:

"there is, however, one limitation which must always be attached to it, that is to say the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors I think the rule should receive as liberal a construction as possible."

57. I am fortified in the views I have expressed above by the fact that in Maerkle v. British Continental Fur Co Ltd [1954] 1W.L.R. 1242 (C.A.) and Thorne District Council v. Bunting [1972] Ch 470 the court did not treat the question of locus for declaratory relief in each case as raising a strict jurisdictional issue but as raising the question whether the court's jurisdiction to grant declaratory relief was properly exercisable.

58. On the footing that the court was competent to grant the plaintiff declaratory relief regarding the nature of the relevant trusts, the real question, in my judgment, is the wider jurisdictional one, namely could the court in the proper exercise of its jurisdiction grant the plaintiff the declaratory relief he sought when the personal representative of the settlor eras not before the court directly or by representation. In my judgment the answer must be in the negative.

59. Any order made in the absence of the settlor's personal representative or a party representing the settlor's estate would not bind his personal representative when duly constituted. There would therefore be multiplicity of proceedings. If the order were adverse to the estate it could be embarrassing to the personal representative. Moreover the personal representative might take a different view of the estate's claim to the property and wish to compromise it with the trustees and the other interested parties. Furthermore the authorities seem to be wholly against the granting of declaratory relief in such a situation save in exceptional circumstances, which do not exist here.

60. Thus in London Passenger Transport Board v. Moscrop [1942] A.C.332 (H.L.) Viscount Maugham described the established practice of the courts in the following terms:

"....the courts have always recognized that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be made parties, whether by representation orders or otherwise before a declaration by its terms affecting their rights is made. In the Chancery Division, in which this case started the rule would seem to be almost invariable, and the well established practice in actions by shareholders and debenture holders may be mentioned as instances of the rule. With the greatest respect for the Court of Appeal, I think that the amended declaration pronounced by that court, even if the section were applicable, ought not to have been made."

61. These principles seem to have been applied (although the Moscrop case was not cited in Maerkle v. British Continental Fur Co Ltd where the plaintiffs appealed unsuccessfully after Wynn-Parry J. had struck out their actions. They were German nationals whose moneys in the hands of London agents had become vested as a result of trading with the enemy legislation in the Custodian of Enemy Property in Canada and the United Kingdom respectively. The plaintiffs sought (in addition to other relief which was disallowed) declarations against the defendant agents. In one action the declaration sought was that the agents had not truly accounted to the Canadian Custodian of Enemy Property. In the other action a declaration was sought that the agents had converted a specified sum of money to their own use and an order for payment of that sun to the Custodian of Enemy Property in the United Kingdom.

62. When giving his reasons (with which Hodson L.J. agreed).for dismissing the appeal Jenkins L.J. said at pp. 1248-9:

"In the present case, treating the matter as res integra, I cannot think that it would be right to allow either of these actions to go forward for the purpose of obtaining declaratory relief of the kind sought. If it is the case that the whole of the plaintiffs right, title and interest in the subject-matter of these actions has passed to the custodian, then the claims which the plaintiffs now seek to assert are, in truth, claims maintainable by the custodian and no one else against the defendants, subject to whatever defences the defendants may have. They are claims which the custodian may, or may not, see fit to litigate between himself and the defendants ; they are claims which might, or might not, be compounded or compromised between the defendants and the custodian.

In those circumstances, I cannot think that it would be right to allow either of these actions to go forward for the purpose of obtaining declaratory relief in proceedings to which the custodian is not a party. The plaintiffs interest in such relief could only be described as nebulous, for the only advantage (if one may call it such) that for Campbell claims might be achieved by such relief, is that it might increase the prospect of his clients ultimately participating in any surplus that the custodian might have on and after all prior claims had been disposed of. That, Mr Campbell admitted, is no more than a spes ; it is not a right or enforceable interest; it is at most a possibility. I cannot therefore think that it would be right to allow these actions to go forward merely for the purpose of obtaining relief of that kind, which could confer no tangible benefit on the plaintiffs, and might as productive of much embarrassment as between the defendants and the custodian in any litigation or negotiations which may hereafter take place between them upon the subject matter of these two actions."

63. The general rule of practice referred to by Viscount Maugham in the Moscrop case was acknowledged by Viscount Radcliffe in Ibeneweka v. Egbuna in the following passage of his judgment at pp. 225-6 in which he explained the reasons for the general rule and indicated why the case before the Board was a special one:

"Again, if the defendants were not capable of representing the Obosi community as such, it was an exceptional action to make a declaration against them.on the absence of someone who could represent the community upon a matter of title in which the community itself was primarily interested. The appellants have, naturally, dwelt upon this circumstance as showing that no declaration at all should have been made. It may certainly be conceded to them that, generally speaking, a court is not disposed to make declarations of right about matters of law when it is apparent that the declaration asked for concerns other interested parties who are not present before the court. Where the judgment is inter partes, as most judgments are, persons not formally before the court will not be bound in law by such a declaration, but it is inconvenient and, sometimes, embarassing for them to have such declarations pronounced in their absence. In England any difficulty of this kind can normally be avoided through the exercise of the power which the court possesses to make representation orders affecting the interests of classes of persons, even though some of them have no actual representation. In Nigeria the court can make such orders only where the person nominated has in fact been authorised for that purpose by the persons interested. This difference between the two systems could warrant some difference in their practice and lead to a rather freer use of the powers of the court in Nigeria than in England However that way be, there has never been any unqualified rule of practice that forbids the making of a declaration even when some of the persons interested in the subject of the declaration are not before the court, see London Passenger Transport Board v. Moscrop [[1924 A.C. 332,345] ("except in very special circumstances"), New York Life Assurance v. Public Trustee [[1924 2 Ch 101]. Where as here, defendants have decided to make themselves the champions of the rights of those not represented and have fought the case on that basis, and where, as here, the trial judge takes the view that the interested parties not represented are in reality fighting the suit, so to say, from behind the hedge, there is, in their Lordships' opinion, no principle of law which disentitles the same judge from disposing of the case by making a ueclaration of title in the plaintiffs' favour."

64. In New York Life Assurance v. Public Trustee [1924] 2 Ch 101 the policy holders whose policies were under consideration were not before the court but the court nevertheless made a declaration affecting their rights. Warrington L.J. (with whom Sir E.M. Pollock M.R. appears to have agreed at p. 113) observed at p. 118:

"The creditors, the parsons to whom the debts are payable, are not parties, and it seems at first sight wrong to make a declaration affecting their rights in their absence. Of course in ordinary cases it is exceedingly unusual, to say the least of it, to make any such declaration; but one must bear in mind in these cases under the Treaty that they are not ordinary cases, of determining rights inter parties ... The circumstances, therefore, are peculiar........"

At p. 122 Atkin L.J. was clearly concerned about the proposed declaration but felt that as the matter had come so far and the declarations had been made by the judge below it was important that it should be deal with. However he thought it was unfortunate and that the case ought not to be made a precedent so far as the question of parties was concerned.

65. After the close of arguments Mr McDonnell referred us to a form (Form 49 in Atkin's Court Forms, 1986 Issue, Vol.41) which evidently survived the scrutiny of Mr Raymond walton Q.C. (as he then was) as Form 32 in the same volume of the 1965 edition of Atkin's Court Forms. The form is a precedent for a statement of claim to recover trust property distributed under a mistake. The plaintiffs are some of the statutory next of kin a settlor who is alleged in the pleading to have died intestate having made an inter vivos settlement of property on trust "for such charitable, benevolent or other purposes as the trustees shall think fit". It is alleged that the trusts are void for uncertainty and that the trustees have distributed the fund to a charitable home. Appropriate declarations and orders for recovery are sought against the trustees and the home. The personal representatives of the settlor are not proposed to be joined as parties or to be represented.

66. The form is said to be based on Re Diplock [1948] Ch 465 (C.A.). However that was not a case of a void inter vivos settlement giving rise to a resulting trust in favour of the settlor and his estate. It was a case of partial intestacy arising upon the failure of a disposition of residue resulting in a tracing operation by the beneficiaries moreover Diplock has to be considered in conjunction with Chichester Diocesan Fund and Board of Finance (Incorp.) v. Simpson [1944] A.C. 341 (H.L.),the originating summons proceedinqs in which the issue of the validity of the trusts of Caleb Diplock's residuary disposition was determined. The executors brought those proceedings in June 1940 on the direction of Bennett J. after the first ("the main action") of the ten Diplock tracing actions had begun on the 3rd January 1940. The decision of the House of Lords in the Simpson case was adverse to the charities among whom the residuary estate had been distributed and who were all represented in the proceedings. It appears from the judgment of Lord Greene M.R. in the Diplock case at pp. 474-5 that on the 5th April 1944, in the main action (i.e. before the other nine actions were begun on the 28th July 1945) a compromise order was approved by Simonds J. (as he then was) which bound all persons beneficially entitled to any property as to which the testator died intestate in respect of any claim by them for devastavit or misapplication of the testator's residuary estate against any of the executors of the testator or any of the estates of such executors. This explains why (see Diplock at pp. 472-3) there was only one defendant, a charity, in each of the nine actions instituted after the compromise order. The invalidity of the trusts affecting the testator's residue had by then been determined by orders binding all interested parties. I therefore regard the form as highly suspect and irrelevant to the circumstances of the present proceedings.

67. Accordingly I conclude that if the proceedings had continued without joining the settlor's personal representative or the joinder of a suitable party to represent the settlor's estate the judge should have struck out the plaintiff's original action if the Bank's application had been renewed and the Plaintiff had insisted on continuing without applying for a representation order in respect of the Settlor's estate or a stay to enable him to apply for a limited grant. The plaintiff cannot therefore succeed on the "sufficient interest" point alone. However, in the event, the judge first avoided dealing with the application because he considered it came too late and that all the interests with which he was immediately concerned were before the court : see Transcript, Day 2 p.19E. Thereafter by the sixth day of the trial it seems to have occurred to him that there was a locus problem and he raised the question of a representation order. If the representation order is sustainable it seems to me that the judge retrieved the position.

68. As to the validity or otherwise of the representation order made on the sixth day of the trial, Mr Chang relied on the practice note on Order 15 rule 15 in the Supreme Court Practice at para. 15/15/2 which says "It seems that this rule cannot be applied unless there is a valid proceeding". No authority is cited for this note but it must be right if by "valid proceeding" the editor meant a proceeding which was not a nullity.

69. The plaintiff had begun proceedings in his personal capacity for declaratory relief which I do not consider he was entitled to obtain from the court in the proper exercise of its jurisdiction under Order 15 rule 16 in the absence of the settlor's personal representative or a party representing his estate. However I cannot accept that this means that the proceedings were a nullity from the beginning. As Mr McDonnell contended, it is common practice for the court on a strike out application to permit amendment to cure a defect in pleading even where the original pleading disclosed no cause of action.

70. In this connection I am not prepared to construe the powers of amendment conferred by Order 20 rule 5 (which, as purportedly amended in rule 5(4) by L.N. 126/1983, was validated with effect from the 27th July 1984 by section 35(12) of the Limitation Ordinance (Cap. 347)) as being controlled by rule 5(2) so as to produce the capricious result that a party may only qualify to apply to amend his pleadings under rule 5(3), (4) or (5) if he is already time barred. I prefer what I regard as the more reasonable interpretation that rule 5(1) is of general application, which is confirmed by rule 5(3), (4) and (5), and that rule 5(2) merely permits them to be invoked by a party after the expiration of the relevant limitation period.

71. Having regard to Order 20 rule 5(1) which empowers the court to permit a party to amend his pleading, to plead a capacity which he has acquired since the date of the writ I consider that to day Evans v. Bagshawe (1869) L.R. 8 Eq. 469 upon which Mr Chang relied, has no relevance. In any event the decision in that case did not proceed on the basis of nullity.

72. Assuming Ingall v. Moran [1944] K.B. 160 (C.A.) and the cases which applied it to have been rightly decided on the nullity point, I consider the facts of the present case to be distinguishable. In Ingall v. Moran the plaintiff purported to bring proceedings in a capacity which he did not have. In some respects it was analogous to a case where proceedings are purporteuly brought in the name of a deceased person : see Tetlow v. Orela Ltd [1920] 2 Ch 25 and c.f. Dawson (Bradford) Ltd v. Dove [1971] 1 Q.B. 330. However, in the present case, the plaintiff brought proceedings in his personal capacity and as a claimant to a sole beneficial entitlement to the settlor's estate (a claim yet to be determined) for relief which, in my judgment, the court strictly had jurisdiction to grant him (assuming he established that he was the settlor's sole next of kin) but would not as a matter of judicial practice grant him in the absence of the personal representative of the settlor or a party representing his estate.

73. Thus if the plaintiff had obtained a grant at any stage during the trial and had then applied for leave under Order 20 rule 5(1) to piead his new capacity, I cannot think that it would have been right to refuse him leave on the ground that the proceedings were a nullity. The granting of leave to amend in such circumstances would be consistent with the approach of the court in the old cases of Humphreys v. Humphreys (1734) 3 P.Wms 349 and Fell v. Lutwidge (1740) Atk. 120 where failure by a next of kin plaintiff to obtain a grant before instituting proceedings to recover the property of a deceased's estate was clearly not treated as nullifying the proceedings, although in Humphreys v. Humphreys relief was denied until the grant had been obtained. These cases and the Chancery procedure for the appointment of a receiver pendente grant were distinguished by Goddard L.J. in Ingall v. Moran at p. 172 but it is significant that he was there concerned with the question; whether "... it was open to a person to file a bill as administrator before he obtained a grant." (emphasis supplied).

74. For try part, in the circumstances of the present case, I would be prepared to rely on the modern approach adopted by the Privy Council in Austin v. Hart [1903] 2 A.C. 640 (P.C.) and hold that at the most the plaintiff's original action as constituted on the sixth day of the trial immediately before the representation order was made was irregular but not a nullity. If I am wrong in seeking to distinguish Ingall v. Moran I would nevertheless hold that the amendments to Order 20 rule 5 do permit amendment of a claim to introduce a new capacity before the expiration of the relevant limitation period and that the new rules have the effect of overriding the effect of Ingall v. Moran in the circumstances of the present case.

75. On the footing that the proceedings were not a nullity when the representation order was made so that the plaintiff was a party who could apply for the order, the next question is whether it was properly made under Order 15 rule 15. I must say that when I first came to this case I was very concerned as to the propriety of the order which seemed to me to be not only unprecedented but questionable because it had the effect of giving the plaintiff, in the course of the action, a representative capacity in which he could not have issued his writ.

76. However after listening to a helpful and extensive, if not completely exhaustive, examination of authorities concerning the practice of the court under Order 15 rule 15 and its predecessors I am persuaded that, in the unusual circumstances of this case, where the action had been afoot since 1984 and there was a valid counterclaim by the Bank for the determination of the trusts affecting the trust, property (which had already given rise to two previous proceedings without decision), the judge is not to be faulted for exercising his discretion to make the order.

77. Examination of the authorities cited by Mr McDonnell has revealed that the practice notes in various editions of Daniell's Chancery Practice and other old practice books contain propositions which are not sustainable and that there is a marked lack of consistency in the decisions particularly the earlier decisions made soon after the rule appeared in its original form as section 44 of the Chancery Procedure Act 1852.

78. Whilst expressing appreciation for the industry of counsel on both sides in their researches I do not find it necessary to review the numerous authorities cited. I will refer only to those authorities which are directly in point.

79. When he applied for :leave, to introduce ground H Chang relied heavily on Gioson v. Wills (1856)21 Beav. 620 one of the early decisions under s.44 of the Chancery Procedure Act 1852 by Sir John Romilly M.R. for the proposition that where there is an entire adverse interest which is unrepresented by any party to a suit the court will not appoint a person to represent that interest. However Mr. McDonnell was able to cite a line of cases, many of them decided 1y Lord Romilly M.R. himself where such appointments were made : see for example In re John Stewart (deceased): Ex parte Cramer (1852) 1 Sm. & Giff 32 (Sir John Stuart V.C.); Swallow v. Binns (1852)9 Hare App. I xvii (Sir, G.J. Turner V.C.); Ely v. Gayford (1853)16 Beav. 561 (Sir John Romilly M.R.); The Prince of Wales, & C. Association Co. v. Palmer (1858)25 Beav. 605 (Sir John Romilly M R.); Mortimer v. Mortimer (1863) 11 W.R. 740 (Sir John Romilly M.R.) and Joint Stock Discount Company v. Brown (1869)L.R. 3 Eq. 376 (Sir W.M. James V.C.).

80. Faced with this formidable array of authority Mr. Chang was constrained in his reply to accept that there was no absolute principle that the court would not allow a whole adverse interest to be represented under the rule. Indeed the modern decisions such as Lean v. Alston [1947] KB 467 (C.A.) seem to be directly contrary to any such principle.

81. Mr. Chang also made a concession regarding the principle which Sir William Page flood (V.C.) applied in Fowler v. Bayldon (1853)9 Hare App. II 1xxviii (a dispensation case), that section 44 of the Chancery Procedure Act 1852 did not enable the court to dispense with a party who, in the circumstances of the case, should be active in the execution of the decree which the court was called upon to make. In that case the proceedings were brought to execute the trusts of a term created by a marriage settlement, for raising a sum of money for the benefit of the plaintiff. The two trustees of the settlement being dead and there being no personal representative of the estate of the surviving trustee, the court was not prepared to dispense with the appearance of that personal representative who would be the person who would have to be active in the execution of the decree the court was called upon to make.

82. Mr. Chang accepted that the principle applied in Fowler v. Bayldon did not extend to preventing a person being appointed to represent the estate of a deceased person in circumstances where he would- have to take active steps in the conduct of the proceedings on behalf of the deceased person's estate. Indeed there are numerous examples of appointment made in such circumstances. Two obvious examples are Joint Stock Discount Company v. Brown and Lean v. Alston.

83. Furthermore I think that Mr. McDonnell was right when he contended that the judgment of Clauson J. in In re Prosser (1929)W.N.85 eras to be regarded as authority for the proposition that, contrary to the view reflected in the notes to 0.15 rule 15 in the Supreme Court Practice, Vol. I at paragraph 15/15/13, the person appointed wound be entitled to be represented in court as a party.

84. The editors of Atkin's Court Forms. Vol. 30 (1987 Issue), who at p.24 paragraph 22 indicate the modern practice to be to add the representative as a party, seem to have misquoted Prosser as a guide to the old practice. I add that it would seem to be impossible to give effect to the decision in Lean v. Alston if the representative appointed in that case was not made an actual party to the proceedings. The decision in Watts v. The Official Solicitor [1936]1 A11FR 249 (C.A.) seems to confirm this. Thus at page 252 Greer L.J. said of the Official Solicitor in that case:

"He had been the person appointed to represent the estate, and it was perfectly correct in form that he should state that he, the defendant as representative under R.S.C. Ord. XVI, r.46, retained himself...

85. Ultimately it seems to me that Mr. Chang's best point was his reliance on the aosence of any previous reported case where the court had conferred on a sole plaintiff, whose locus in initiating proceedings was in issue, a representative capacity which, as Mr. Chang put it in his written submissions - "enables him whilst retaining his personal claim to side-step the issue as to locus.". This is of course a matter which will loom large when the question of costs is under consideration in this appeal but I am not disposed to agree that it provides support to the procedural issue which the plaintiff seeks to raise under ground H.

86. I accept that the present situation, where a plaintiff has been appointed to represent the estate of a deceased person, seems to be unprecedented so far as reported authority is concerned. In Wingrave v. Thompson (1879)11 Ch.D. 419 Fry J. made an order under section 44 of the Chancery Procedure Act 1852 at the instigation of a defendant in an administration action appointing a person to represent the estate of the plaintiff who had died after the close of pleadings insolvent and apparently intestate without personal representatives. The purpose of the order was to enable the defendant to move for dismissal of the action in default of due prosecution. Fry J. was persuaded ex parte that he had the jurisdiction to make the order.

87. That situation is far removed from the present one. However the fact that the present situation is unprecedented does not provide the answer Moreover it is significant that in all the cases that have been cited in this appeal as decisions of the English Court of Appeal on representation orders there is no indication that the tower of the court to make such an order under Order 15 rule 15 or its predecessors is anything but general and exercisable whenever the court considers it just to do so. This seems to have been the view of Sir. W.M. James V.C. in Joint Stock Discount Company v. Brown where at pp. 379-80 he said in relation to section 44 of the 1852 Act:

"... independently of authority, I should certainly have held that the Act was intended to apply to every case where the Court might think it was doing justice in appointing a representative.".

88. That wide approach is reflected in the judgments of all the members of the Court of Appeal in Curtius v. Caledonian Fire and Life Insurance Co. (1881)19 Ch.D. 534 (C.A.) which was also concerne4 with the jurisdiction conferred key section 44 of the 1852 Act. Lord Coleridde C.J. observed at page 536:

"The question is really one of jurisdiction, for if it were only a question of discretion there is no doubt that the Master of the Rolls was justified in exercising it as he did. But it has been argued before us as a question of jurisdiction. I cannot see that any of the authorities show that the Court had not a jurisdiction to make the order. No doubt some of the Judges have found fault with orders which have been made in particular cases, but although one Judge takes a different view from another on a particular case before them, that is a different thing from holding that there was no jurisdiction; and I have had no authority cited shewing that the Court has no jurisdiction in such a case as the present.".

Baggallay L.J. said:

"I am of the same opinion. The 44th section has conferred on the Court the power of dispensing with the presence of a legal personal representative in certain cases. The only restriction is that there must be no representative of the deceased person in existence. In other respects the poorer is perfectly general. Therefore what has been done was clearly within the jurisdiction. The Plaintiff was interested in the policy money, and there was no legal personal representative of the assured. No doubt a number of cases have been cited in uhim the Court has not thought fit either to proceed without a personal representative, or to appoint one; but they will all generally be found to be either cases in which proceedings have been actually pending for the appointment of personal representative, or where duties would have had to be performed by the personal representative, if appointed. If there are other cases they depend upon special circumstances.".

89. Lindley L.J., in a short judgment was of the same opinion.

90. In Pratt v. London Passenger Transport Board [1937]1 A11ER 473 (C.A.) the Court df Appeal declined an invitation to lay down any general rule to be applied by judges when exercising their powers under Order 16 rule 46 (the predecessor to Order 15 rule 15). Greer L.J. declined the invitation at page 477B in the following words:

"We were invited to make observations with reference to what ought to be the general rule for the court or a judge when applications are made, to theca in exercising their discretion under R.S.C. Ord. 16 r.46. For my part I think it unwise to lay down any general rule with regard to a matter which is a matter for discretion, because no two cases are the same. It may be that in some cases it would be held to be clearly inconvenient to make an order under this rule, whereas in other cases it might appear to be an adequate and proper method of dealing with the difficulty. I do not think we can, in advance, lay down any rule as to how the discretion should be exercised in these cases.".

91. Again, in Lean v. Alston (eahere the Court of Appeal held that the power conferred by Order 16 rule 46 was not limited to the representation of the estate of a deceased person, who, before his death, was a party to the action) Scott L.J. referred to the courts power in the following very wide terms:

"...but Mr. Berryman has pointed out that that rule is only one application of an inherent power of the court exercised by the Court of Chancery and expressed in s.44 of the Chancery Procedure Act, 1852, by which the Court of Chancery and its successor, the Chancery Division, always had the power to appoint a person to represent any particular interest in any proceeding where it thought right to make that appointment."

92. Morton L.J. described the practical application of the rule in the Chancery Division in the following passage of his judgment:

"Finally, within my own experience, although no case was cited to us on the point, it is very common in the Chancery Division for a person to be appointed to represent the estate of a deceased person under this rule, when such deceased person has never been a party to the litigation. One of the most common cases is where there is a doubt as to the true construction of a will; the trustees of the will take out an originating summons and it is their duty to make parties to that originating summons the persons who are interested in putting before the court various different constructions of the will. It often happens that some person who, if alive, would have a very direct interest in putting an argument before the court, is dead, and has no legal personal representative. In these circumstances, it is the usual practice for the Chancery Division to appoint a person to represent the estate of the deceased person under this rule. I have never heard it suggested until to-day that that could not be done unless the deceased person had been a party to the litigation at some stage."

93. The only decision of the Court of Appeal which indicates a narrower approach is Curtis v. Betts [1887]W.N. 126 (C.A.). The decision of a strong court (Cotton, Bowen and Fry L.JJ.) is very briefly reported. It related to an order appointing persons (executors of a deceased partner who had not assented) to represent a deceased solicitor in proceedings where, on the application of an executor client, the solicitor had been the subject of an order for delivery and taxation of his bill. The court is reported as deciding that if the solicitor died after the making of the order for delivery and taxation of his bill it was wrong because it was wrong to appoint a person to represent the estate of a deceased person who was the only person liable, and it was also wrong to appoint to represent an estate a person who was unwilling to act.".

94. On the second point (want of consent) Curtis v. Betts was applied in Pratt v. London Passenger Transport Board. As to the first point I agree with Mr. McDonnell that the report is difficult to reconcile with the decision of the Court of Appeal in Lean v. Alston where third party proceedings between two defendants were to be instituted in reliance upon the representation order made in that case. The report is also difficult to reconcile with cases such as Joint Stock Discount Company v. Brown. For say part I would not therefore follow Curtis v. Betts on the first point in the absence of a more satisfactory report.

95. In the light of the Court of Appeal decisions cited above, other than Curtis v. Betts, and having accepted that the proceedings in the original action were not a nullity I consider that the judge had jurisdiction in both senses of that term to make the representation order in question in this case. His powers were very wide under the rule to snake the order where he thought it right in the circumstances.

96. Mr. McDonnell, who has been helpfully thorough in all his submissions, advanced detailed arguments to support his contention that the judge had correctly exercised his discretion to make a representation order. However it seems to me that once the jurisdiction to make the order is established the judge cannot be faulted for exercising it and it is not for this court to substitute its own decision for that of the judge.

97. In particular, the history of the trust property which has twice been the subject of inconclusive contentious litigation and the existence of the Bank's counterclaim were compelling indications of the desirability of providing representation for the settlor's estate in these proceedings so that the true nature of the trusts could be determined for the benefit of all interested parties. The plaintiff was a genuine claimant to be the sole next of kin of the settlor even if his claim was hotly contested by the Bank. On the issue concerning the nature of the trusts I can discern no conflict between the plaintiff in his personal capacity and the interest of the estate he represented.

98. The two persons whom the Bank contended were the settlor's next of kin could not be found and the Bank and the first defendant failed to produce a rival contender to be the appointee. Whether or not the judge was right in not staying the whole issue concerning the plaintiff's alleged beneficial entitlement to the settlor's estate to be dealt with by inquiry after the trial or in duly constituted proceedings for the administration of the settlor's estate in Hong Kong, rather than treating the issue as a non-issue at the end of the trial, seems to me to be matter material only to costs.

99. As regards the counterclaim, I adopt the same approach as for the original action. The proceedings were not a nullity even if the personal representative of the settlor when duly constituted (as the person claiming to have a beneficial interest under the trust for the purposes of Order 85 rule 3(2)) and not the plaintiff in his personal capacity would have been a proper defendant. Furthermore, by the time the pleadings had been amended on the sixth day of the trial and the plaintiff had introduced paragraph 3A into his further re-re-amended Reply he had in any event became a proper defendant in his personal capacity in connection with the issue of the valid private trusts which the Bank was seeking to be declared in the alternative to its claim to establish charitable trusts.

100. Under the circumstances the arguments advanced under Order 2 do not require to be dealt with.

101. I would therefore refuse leave to the Bank to introduce ground H on the ground that the application comes too late and is without merit. I arrive at this conclusion without regret. It seems to cue that if the Bank were to be permitted to succeed on ground H at this stage of the proceedings, when there has been a determination by the judge on the trust issue (which has already been argued on behalf of the Bank in this appeal) and the plaintiff has obtained a grant pendente lite, it would not be of any real advantage to any of the interested parties.

Cons, V.P :

102. I am grateful to my Lord for his clear recital of the background and argument pertaining to the questions with which we are at the moment concerned, as well as for his detailed analysis of the numerous authorities put before us.

103. I have come to the same conclusions as lie has, and for reasons which are much the same as those adopted by him.

104. I would therefore likewise refuse leave to permit the further amendments to the Notice of Appeal to which objection has been taken. But as the question of jurisdiction is one of some importance, it way perhaps be useful to state simply the bare essentials of my approach thereto.

105. The jurisdiction of the court to grant declarations is by derivation inherent rather than statutory: see Lord Brandon in Re F. [1989] 2 WLR 1025 at p. 1074F. It is a jurisdiction that "is almost unlimited": per Lord Sterndale in Hanson v. Radcliffe quoted in Ibeneweka v. Egbuna [1964] 1 WLR 219 at p. 225.

106. The comment of Lord Sterndale is qualified by his preceding words "where it is a question of defining the rights of two parties", which was the situation in effect in Ibeneweka v. Egbuna and in those other cases to which we have been referred where a declaration was actually granted, that is Guarantee Trust v. Hannay [1915] 2 KB 536, Russian Commercial Bank v. British Bank for Foreign Trade [1921] 2 AC 438 and Ruislip idorthwood U.D.C. v. Lee (1931) 145 LT 208. But the situation in Re F. was not so limited and for myself I find it difficult to accept that the here number of parties involved can affect jurisdiction as such, although it may well be relevant to a particular exercise of the jurisdiction, which "is always a matter for discretion": per Jenkins L.J. in Maerkle v. British Continental Fur Co. Ltd, [1954] 1 WLR 1242 at p. 1248.

107. However there are principles affecting the exercise of the discretion that have become so firmly established that they can perhaps be looked upon as restrictions on jurisdiction. They are

(a) per Bankes L.J. in Guarantee Trust v. Hannay at 572 (approved by Lord Goff in Re F. at p. 1091)

"There is, however one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its jurisdiction."

(b) per Lord Dunedin in the Russian Commercial Bank case at 448 (likewise approved at p. 1092): "The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."

(c)per Sir Robert Megarry in Malone v. Metropolitan Police Commissioner [1979] 1 Ch 344 at p. 353:

"In my judgment, the power to make declarations is confined to making declarations on matters that are justiciable in the courts.

.......

Every other objection remains open, and so if the proceedings are brought in respect of coral, social or political matters in which no legal or equitable rights arise"

108. In Commissioner of Stamp Duties (Queensland) v. Livingston [1965] AC 694 Viscount Radcliffe dealt at pp. 713B and 717C with the position of a person who is, or may be, entitled under an unadministered estate. At the latter gage he said:

"their Lordships regard it as clearly established that airs. Coulson was not entitled to any beneficial interest in any property in Queensland at the date of her death. What she was entitled to in respect of her rights under her deceased husband's will was a chose in action,. capable of being invoked for any purpose connected with the proper administration of his estate"

109. In my view a decision as to the true nature of the trusts relating to 152-6 Queen's Road Central is something connected with the proper administration of Koo Chi's estate. Indeed I can see nothing in reality which distinguishes the present from those referred to by Viscount Radcliffe at p. 713 as:

"those cases in Equity Courts in which a creditor or a pecuniary or residuary legatee has been allowed to follow and recover assets which have been improperly abstracted from an estate. The basis of such proceedings is that they are taken on behalf of the estate and, if they are successful, they can only result in the lost property being restored to the estate for use in the due course of administration. Thus, while they assert the beneficiary's right of remedy, they assert the estate's right of property, not the property right of creditor or legatee"

110. For my part I am satisfied that the Plaintiff's claim was competently brought. It satisfies Lord Dunedin's requirements in that the nature of the trusts is a real question and that the Plaintiff if in truth next of kin, has a real interest should the estate benefit by reason of a resulting trust. The Bank and the 1st Defendant, being wedded to the suggestion of charitable trusts, are "proper contradictors". The right claimed is not a "legal or equitable right" in the strict sense, as required by Sir Robert Megarry, but it is "justiciable" and certainly not moral, social or political. Neither is it unlawful, unconstitutional or inequitable. It is suggested that it may be "contrary to the accepted principles upon which the court exercises its jurisdiction" in relation: to the administration of an estate, but that suggestion, in the present instance, only begs the question that has to be decided.

111. That conclusion is sufficient to dispose of Mr. Chang's objections, all of which seem ultimately to depend upon the suggestion that the proceedings by the Plaintiff had been null and void ab initio. He relies for that upon Ingall v. Moran [1944] KB 160, which was followed in Hilton v. button Steam Laundry [1946] KB 66 and Finnegan v. Cementation Co. Ltd. 1953 1 QB 688.

It is apparent that in Ingall v. Moran

(1)the Plaintiff sued as an administrator,

(2)brought the action for the benefit of someone other than himself, and

(3) had no grant when the writ was issued.

The proceedings were held to be a nullity. It is not expressly stated why, but the decision would seem to be based on the principle that the Plaintiff was either equivalent to a dead person: see Tetlow v. Orela Ltd. [1920] 2 Ch 24 or to a non-existent person, see Lazard Brothers v. Midland Bank [1933] AC 289 at 296. That would distinguish Ingall v. Moran from Carswell v. Hyland (1887) 3 TLR 708, "The Duke of Buccleucil" [1892] P 201, Hughes v. Pump House Hotel (No. 2) [1902] 2 KB 405 and Hauxwell v. Barton-upon-Humber U.D.C. [1974] 1 Ch 432. The present action may be distinguished in that it was not brought initially for the benefit of anyone other than the Plaintiff himself. Prayers 5,6,7 and 8 of the Statement of Claim may give that impression but Prayer 10 makes it clear that these are only steps on the way to the fulfilment of what Mr. Chang referred to as the Plaintiff's desire "to scoop the pool".

112. However I feel bound to add that it could not have beenlong maintained as a merely personal action. In Re F., at 1075DE, Lord Brandon observed that in that case the court would, if necessary, then by means of directions have ensured that the requirement of a "proper contradictor" was fulfilled before considering whether a declaration should be granted. In the present instance it was necessary that Koo Chi's estate should appear in some way or another. Otherwise the claim would nave been open to the objection raised by Jenkins L.J. in Maerkle v. British Continental Fur Co. Ltd. at p. 1248:

"the claims which the plaintiffs now seek to assert are, in truth, claims maintainable by the custodian, - (in the present instance the personal representative of Koo Chi's estate) - and no one else, against the defendants, subject to whatever defences the defendants may have. They are claims which the custodian may, or may not, see fit to litigate between himself and tire defendants; they are claims which might, or might not, be compounded or compromised between the defendants and the custodian."

Without the safeguard of the Representation Order the court would inevitably have refused to exercise its discretion in favour of the Plaintiff.

Kempster, JA:

113. From the wealth of authority cited to us it is apparent that the courts will only grant relief in civil and properly constituted proceedings within their jurisdiction in the narrow sense described by Diplock LJ in Garthwaite v. Garthwaite [1964] P.356 at p 387, to persons who have demonstrated the capacity which the law requires. Normally, in the case of natural persons, this means no more than that they be sui juris and of sound mind and, subject to the provision of RSC 015 r 6A which did not have effect until 1 May 1988, such natural persons are by definition alive. A corporation must presently exist. In some cases, however, the courts have required more. For exaiciple on an intestacy proceedings under the Law Reform Act 1934 could not validly be commenced before the plaintiff had received a grant of letters of administration. Ingall v Moran (1944) KB 160. As regards the writ issued in the present action, however, the position is altered by the enactment of a new section 35 of the Limitation ordinance (Cap 347) and the amendment of RSC 0201 r 5. Proceedings commenced by a person lacking the necessary capacity can be validated by amendment. It follows that an action so susceptible cannot be regarded as a nullity though it may be liable to be struck out under RSC 018 r 19 and the inherent jurisdiction. Questions of locus only retain importance in the context of judicial review by reason of the terms of RSC 053 r 3(7). IRC v National Federation of the Self-Employed (1982) AC 617. The point is academic.

114. The plaintiff, suing in his alleged personal capacity as next of kin, was ostensibly seeking to protect the unadministered estate of Ip Koo-chi by preventing the further dissipation of its assets under the guise of lawful payments made pursuant to the provisions of charitable trusts. That gave him locus in any event and, once the irregularity occasioned by the absence of a representative of the estate had been cured, precluded any successful application to strike out. Commissioner of Stamp Duties (Queensland) v Livingston (1965) AC 694

115. The validity of the representation order made pursuant to RSC 015 r 15 on 21 September 1987 is not 1iable to challenge once it is accepted that the action was not a nullity. Everything particularly the terms of section 16(2)of the Supreme Court Ordinance (Cap 4), favours the Judge's exercise-of discretion in making it.

116. I gratefully concur both with the conclusions reached by my Lords and with their reasons; expressed so much more fully than my own. I would only add that it was largely in response to the interest evinced by this court that Mr Chang made his application to amend the Notice of Appeal.

Representation:

Mr. Denis Chang Q.C. & Mr. K.B. Ng (M/S Woo & Woo) for Appellant/4th Defendant

Mr. John McDonnell Q.C., Mr. Brian van Buuren & Miss Maggie Poon (M/S King & Co.) for 1st Respondent/Plaintiff

Ip Siu Bun, 2nd Respondent/1st Defendart in person

Ip Cheung Kit Yee, 3rd Respondent/2nd Defendant in person

Mr. W.R. Marshall Q.C. & Mr. Eric Lau (Crown Solicitor) for 4th Respondent/2nd Defendant by Counterclaim