Read the full judgment text of on BabelCite. was delivered on 25 October 1989 before Cons, V.-P., Kempster JA, Clough JA.
Civil procedure – jurisdiction – inherent jurisdiction to grant declarations – settlor's inter vivos settlement – resulting trust – void for perpetuity – claim by sole next of kin of deceased intestate settlor where no grant of letters of administration obtained – whether High Court has strict jurisdiction to grant declaratory relief against trustees – held, court has strict jurisdiction as personal representatives' property rights are in question, but jurisdiction is not properly exercisable in absence of personal representative or duly appointed representative, save in very special circumstances – next of kin's interest in unadministered estate is no more than a chose in action (Commissioner of Stamp Duties (Queensland) v Livingston) – Civil procedure – representation order under RSC O.15 r.15 – appointment of plaintiff to represent deceased settlor's estate – whether proceedings were a nullity or merely irregular – held, irregular but not a nullity, distinguishing Ingall v Moran – amendments to RSC O.20 r.5 and Limitation Ordinance (Cap 347) s.35 permit validation of proceedings by amendment of capacity – Trusts – resulting trust – inter vivos settlement on Chinese family tongs dating from 1875 – validity of charitable and private trusts alleged – Godfrey J. holding property held on resulting trust for settlor's estate – [1988] 2 HKLR 247 – application to set aside representation order refused – Court's power under O.15 r.15 is general and inherent, exercisable whenever court considers it just (Joint Stock Discount Co v Brown; Curtius v Caledonian Fire and Life Insurance Co; Lean v Alston) – representation order properly made having regard to history of inconclusive litigation, Bank's counterclaim seeking determination of trusts, and absence of rival contenders – costs to be determined in substantive appeal – Representation order made on sixth day of trial – letters of administration pendente lite subsequently granted under s.40 Probate and Administration Ordinance (Cap 10) – application to amend writ to reflect new capacity as administrator pendente lite permitted under O.20 r.5.
Legal issues: Jurisdiction to grant declaratory relief to claimant next of kin of intestate settlor in absence of personal representative · Whether proceedings were a nullity or merely irregular · Validity of representation order under O.15 r.15
Outcome: Application by the Appellant Bank for leave to amend its grounds of appeal by adding ground H (attacking the validity of the representation order) refused. The representation order made on 21 September 1987 was upheld as validly made. The substantive appeal on the trust issues was not decided in this judgment.