Lee Chun Wah v. Wong Kai Yan Eugene, The Administrator of the Estate of Wong Tin Sang Bernard, Deceased

HCA 1769/2024

[2025] HKCFI 5329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1769 OF 2024

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DECISION

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INTRODUCTION

1.This decision involves 2 summonses (“the Summonses”).

2.The first summons was issued by the plaintiff (“P”) on 28 November 2024 against the defendant (“D”) whereby P sought final judgment against D under Order 14 (“the Order 14 Summons”).

3.The second summons was filed by D on 3 January whereby D sought to strike out the statement of claim (“SOC”) for being scandalous, frivolous, vexatious and/or an abuse of the process of the court under Order 18 rule 19 (“the Striking Out Summons”).

4.At the hearing on 7 May 2025 before me, there was originally a third summons taken out by D for leave to file and serve the third affirmation of D.  For the reasons given at the hearing, I allowed the summons with costs to P, to be taxed if not agreed.  Therefore, there is no need for me to deal with that summons in this decision.

BACKGROUND

5.Ms Christine Yu, counsel for P, included a chronology in the skeleton submissions for P (“P’s Skeleton”).  Ms Lilian Ip for D has indicated at §48 of the skeleton submissions for D (“D’s Skeleton”) that there are “no factual disputes in these proceedings”.  Hence, I shall adopt the relevant parts of the chronology as agreed facts to this case.

6.On 6 March 2024, P as purchaser and one Mr Wong Tin Sang Bernard (“the Deceased”) as vendor signed a Provisional Agreement for Sale and Purchase (“the PSPA”) for a flat in Yue Fai Court, No. 45 Yue Kwong Road, Hong Kong (“the Property”).  A Mr Wong Kai Kwan Karl Dominic signed on behalf of the Deceased in the PSPA.

7.On 19 March 2024, P and the Deceased entered into a formal Sale and Purchase Agreement (“the SPA”) which superseded the PSPA.  The Deceased personally signed the SPA.

8.The Deceased unfortunately passed away on 3 April 2024.  By a letter dated 8 April 2024, Messrs Raymond Chan Solicitors, ie the Deceased’s solicitors and later D’s solicitors (“RCS”) informed Messrs. Joseph C. T. Lee & Co, ie P’s solicitors (“JCT”) of the same and said that they were “taking instruction (sic) from the Vendor’s executor”.

9.On or about 15 April 2024, it was agreed that the completion date should be postponed from 9 May 2024 to 30 August 2024.

10.On 22 May 2024, Mr Wong Kai Yan Eugene (“WKY”) obtained an order from Master Rita So in HCEA 68/2024 (“the Order”) which provided the following:

“IT IS ORDERED that subject to the filing of all requisite papers leading to a grant of representation to the estate of the above-named Deceased and the compliance with the requirement of the Registrar, under rule 51(b) of the Non-Contentious Probate Rules (Cap.10A) that letters of administration ad colligenda bona of the estate of the Deceased be granted to [WKY], the grant being limited for the purpose only of collecting, getting in and receiving the estate and doing such acts as may be necessary for the preservation of the [Property], and until further representation be granted.”

11.On 23 August 2024, RCS sent a copy of the Order to JCT.  On the same day, JCT replied that the Order “only ordered the grant of a Letter of Administration ad colligenda bona to [WKY] but not further or otherwise”.  JCT claimed that Letters of Administration ad colligenda bona is “an emergency jurisdiction in order to preserve or safeguard the assets of the estate in the period between the death and the making of the full grant.  Such a grant will not empower the assets to be distributed but will merely empower the collection, holding and preservation of the estate until a full grant can be made”.

12.By a letter dated 28 August 2024, RCS sent a copy of the Letters of Administration Ad Colligenda Bona with Grant No. HCAG012494/2024 (“ACB Grant”) to JCT.  The terms of the ACB Grant were substantially similar to those of the Order and the relevant part of the ACB Grant is reproduced below:

“Letters of Administration Ad Colligenda Bona of the estate of [the Deceased]…were granted to [WKY]…pursuant to [the Order] limited for the purpose only of collecting, getting in and receiving the estate and doing such acts as may be necessary for the preservation of the [Property] and until further representation be granted, he having been first affirmed well and faithfully to administer the said property according to law and to exhibit a true and perfect inventory of all and singular the said property and effects and render a just and true account thereof whenever required by law so to do.”

13.By a letter dated 28 August 2024, JCT informed RCS that “[t]here [was] no mention anywhere in the ACB Grant about selling or disposing the property…in the situation similar to the one we are faced with, the personal representatives ‘are entitled to apply for a limited grant for the purposes of completion’ under section 36 of the Probate and Administration Ordinance…we are of the view that there is defect on title which remains uncured up to the date hereof”. [emphasis supplied]

14.By a letter dated 29 August 2024 marked “Without Prejudice Save as to Costs”, RCS informed JCT that solely for the sake of settling the matter amicably and to make P “more comfortable in accepting title”, they were willing to postpone completion so that they could amend the ACB Grant to expressly include the power to complete the sale and purchase of the Property.

15.By a letter dated 29 August 2024, P replied that there had been a failure to cure the defect in title. 

16.On 30 August 2024, P was informed that the initial and further deposits in the total sum of HK$380,000 were absolutely forfeited. 

17.On 3 September 2024, P commenced these proceedings against the estate of the Deceased (ie D) seeking, among other things, the return of the deposits and compensation for costs incurred by P in relation to the aborted purchase of the Property.

18.In §§4-5 of the 1^st affirmation of WKY (“WONG-1”), WKY explained that the Deceased was his uncle and the Deceased left a will dated 9 December 2021 (“the Will”) naming WKY as the sole executor of the Deceased’s estate.  WKY claimed that he had to apply for a grant ad colligenda bona because he was unable to locate the original of the Will.

DISCUSSION

The Order 14 Summons

19.At the hearing for the Summonses on 7 May 2025, Ms Yu clarified that P’s case for summary judgment was based on D’s failure to show good title on the date of completion (ie on 30 August 2024).  She accepted that based on the information revealed in §§4-5 of WONG-1, D was in fact in the position to give good title to the Property to P.

20.Ms Yu submitted that D’s answers to P’s requisitions were insufficient to show good title.  She relied on the fact that RCS only sent the Order and the ACB Grant to JCT but never revealed the basis upon which WKY applied for the ACB Grant and that the information in WONG-1 was not known to P at the material time.  P contended that he was under the wrong impression that WKY was the intended administrator as opposed to the executor of the Deceased’s estate (See §2 of P’s Skeleton).

21.P submitted that a typical letters of administration ad colligenda bona does not ordinarily include a power to sell the property and that an express power was needed.  Because WKY never obtained an express power to sell or a limited grant under s36 of the Probate and Administration Ordinance (“PAO”) before the date of completion, D failed to show good title.

22.Ms Yu relies on §§11.384, 11.385 and 11.388 of Tristram and Coote’s Probate Practice (32^nd edn, LexisNexis 2020) which stated:

“The grant is limited for the purpose of collecting, getting in and receiving the estate and doing such acts as are or may be necessary for its preservation and it may include specific or express power to do certain acts in connection with the estate such of sale of particular property. Such grants are always of administration only: where the deceased died testate, the will is not proved or annexed to the grant ad colligenda bona (collection grant).

…Every grant ad colligenda bona (collection grant) shall be silent as to the will or the intestacy and the grant is limited ‘to collecting, getting in and receiving the estate and doing such acts as are necessary for the preservation of the same and until further representation be granted”

23.P also relied on Whitehead v Palmer [1908] 1 KB 151 at 156 where it was held that:

“…It is stated in the old authorities that if an administrator ad colligenda bona exceeds his rights under the grant, he becomes an executor de son tort, and it is stated in various books that he has no power to sell any of the assets. In the 1st edition of Williams on Executors at p. 266 the law is thus stated: “The ordinary may take the goods of the deceased into his own hands, to pay the debts of the deceased in such order as an executor or administrator ought to pay them; but he, or the stranger who has letters ad colligendum, cannot sell them, without making themselves executors of their own wrong: the ordinary has only an authority, and no such power himself, and therefore he cannot give that power to any other.”

24.D submitted that the “preservative” nature of a grant ad colligenda bona was wide enough to cover the sale of the Property and that the power to complete the SPA fell “squarely within the ambit of the ACB Grant”, citing Re Ho Wai Man (Deceased) [2007] 1 HKC 23.

25.D further submitted that a Letters of Administration ad colligenda bona can be used to effect a real property transaction, as was done in Zeng Qiling v Hou Po Chu Estella & Anor (unreported, HCMP 156/2014, 29 September 2015, per Recorder Pow SC), see §7.

26.In relation to Tristram and Coote’s Probate Practice and Whitehead v Palmer,D drew a distinction between “selling the property” and “completing the sale of a property” in §32 of D’s Skeleton.  The former is said to include a “positive act which does not embrace a preservative purpose” while the latter is “simply to execute the decision of the Deceased to collect the proceeds following the sale”.

27.D also contended that an application under the Order 14 was clearly inappropriate and that the application should have proceeded under Order 14A.  D also submitted that if D is successful in the application to strike out the SOC, the application under Order 14 would become moot.

Ruling on the Order 14 Summons

28.Following Active Keen Industries Ltd v Fok Chi-keong [1994] 1 HKLR 396 at 413, I accept P’s contention that it is possible for a vendor to fail to show good title even if he has in fact a good title.

29.P submitted that at the material time, he did not know that WKY was named as the executor in the Will and could only consider the ACB Grant to determine whether WKY had the necessary power to complete the sale on behalf of the Deceased’s estate.  P contended that the express wording of the ACB Grant did not confer this power on D and generally a grant ad colligenda bona should not be used to sell a real property.

30.I am unable to accept P’s contention that a power to sell is never implied in a grant ad colligenda bona or that it is inappropriate to use such a grant to effect a sale.  Much reliance was placed on Whitehead v Palmer but it was a decision of over 100 years old. I have carefully considered the passages cited in Tristram and Coote’s Probate Practice and a similar passage at §15-47 of Williams, Mortimer and Sunnucks (22^nd edn, Sweet & Maxwell) where it was said that:

“The court has a general power to make a limited grant of administration in order to preserve assets of the deceased within the jurisdiction without waiting until those entitled to a grant have applied…

Such a grant is often useful where the person entitled to a full grant is abroad or temporarily incapacitated and where some urgent step needs to be taken (e.g. the removal of valuables from an empty house or more commonly the sale of a house which is in danger of deteriorating or being vandalised and so losing value or stocks and shares)…However, ad colligenda bona grants should not be viewed as simply an expedient means of achieving a quick sale of property.  Their purpose is to preserve the estate.”

31.I consider that neither Tristram nor Williams supports P’s contention that a grant ad colligenda bona cannot be used to effect a sale.  In fact, the second to last sentence in §15-47 of Williams suggests that a grant ad colligenda bona alone may be used to effect a sale.

32.Further, there are some hints that as a matter of English law, a power to sell is implied in a grant ad colligenda bona.  In Practice guide 6: devolution on the death of a registered proprietor published by HM Land Registry on 18 August 2025, section 3.3.3 expressly provides:

“3.3.3 Limited grant of representation

A grant ad colligenda bona is sufficient to enable registration of the grantee(s) as proprietor(s) in place of the deceased. When we register such grantees, we will

…

enter a restriction in the register in the following wording if the grant does not expressly authorise disposal of the property:

‘No disposition by the proprietors of the registered estate is to be completed by registration unless their conveyancer gives a certificate that the disposition is necessary to preserve the estate…’

enter a restriction in the register in the following wording if the grant expressly authorises disposal of the property:

‘No disposition by the proprietors of the registered estate is to be completed by registration unless their conveyancer gives a certificate that at the time of the disposition no further representation had been sought or granted for the estate…’ [emphasis added]

Any disposition by the grantee(s) under a grant ad colligenda bona must be accompanied by the appropriate certificate.” [emphasis added]

33.I am well aware of the fact that the land registration system in England and Wales is vastly different from that in Hong Kong and Practice guide 6 may turn out to have no relevance to these proceedings at all. Nevertheless, for all the reasons stated above, it seems that D should at least be allowed to mount a defence based on an implied power to sell under the ACB Grant.

34.Second, I accept D’s contention that there is a material difference between a sale initiated by a grantee and completing a sale initiated by the Deceased.  It seems to me that D should be permitted to argue that the preservation power or duty in the ACB Grant was wide enough to cover the completion of the sale of the Property, which could help the estate avoid liabilities from a breach of the SPA.  I am influenced in part by the observation at §16 of European Asia (Hong Kong) Investment Ltd v Wong Shun On Anthony [2011] 1 HKLRD 35 where it was said that:

“Undeniably, completion of the sale of the property was in the best interests of the estate and it is inconceivable that a court would not have exercised its powers under section 36 [of the PAO] to facilitate completion.”

35.Third, although it was not raised by the parties, I consider that D may have an arguable defence that in a real property transaction, solicitors for a purchaser from a personal representative are generally under no duty to inquire and indeed ought not to inquire whether the sale is necessary for the purposes of the administration because of the protection afforded to the purchaser, following Chun Hon Wai & Anor v Junichi Takashima [2000] 2 HKLRD 482 at p.485F-G.

36.In §18-38 of Williams, Mortimer and Sunnucks (22^nd edn, Sweet & Maxwell) it was said that :

“Persons who purchase property from a grantee may well be protected notwithstanding a subsequent revocation of the grant either by the provisions of s.37 of the Administration of Estates Act 1925 or by the general principles identified by the Court of Appeal in Hewson v Shelley [1914] 2 Ch 14. Under s.37 of the Administration of Estates Act 1925 all conveyances of any interest in real or personal estate made to a purchaser by a grantee are valid notwithstanding the subsequent revocation or variation of the grant of probate or administration.”

37.In order to resist an Order 14 application, D only needs to show that he has a credible defence on the facts of this case and that his assertions are capable of being believed, see §22(6) of Wu Yuan Hong v China Zenith Chemical Group Ltd [2025] 1 HKLRD 1191.  I find that D has managed to show that he has credible defences and I therefore refuse the Order 14 application.  There is no convincing reason for imposing any condition on the leave to defend and I therefore give unconditional leave to defend to D.

38.I would add that the contention by Ms Ip that the application should have been brought under Order 14A was without merit.  As Ms Yu rightly pointed out, the grounds relied on by P and the order sought by P fell squarely within the ambit of Order 14 and this must be the end of the matter.  However, it does not affect my decision on the outcome of the Order 14 Summons.

The Striking Out Summons

39.D contended that the Writ of Summons (“the Writ”) and the SOC should be struck out for two reasons:

(1)  these proceedings ought to have been brought by way of an originating summons under section 12 of the Conveyancing and Property Ordinance, Cap. 219 (“CPO”) because it does not involve any question of fact (“the Section 12 Ground”); and

(2)  P’s claim in the SOC lacked merit and was bound to fail (“the Lack of Merit Ground”)

40.It should be noted that the Lack of Merit Ground was not apparent in WONG-1 and that it was raised only in D’s Skeleton.  Further, Ms Ip accepted at the hearing that D was late in lodging the submissions for the Striking Out Summons.

Ruling on the Striking Out Summons

41.The general rule is contained in Order 5 rule 4 which provides:

“(1) Except in the case of proceedings which under any written law are required or authorized to be begun by a specific form of originating process, proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate.

(2) Proceedings—

(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of any written law or of any instrument made under any written law or of any deed, will, contract or other document, or some other question of law, or

(b) in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 86 or for any other reason considers the proceedings more appropriate to be begun by writ.” [emphasis added]

42.As Ms Yu pointed out, section 12(1) of the CPO is permissive as opposed to compulsive:

“A vendor or purchaser of land may apply by petition or by originating summons to the court in respect of any question arising out of or connected with any contract for the sale or exchange of land…” [emphasis added]

43.In my judgment, Order 5 rule 4(2) clearly applied because P had taken out the Order 14 Summons.  There was no room for D to complain that these proceedings should have been brought by way of an originating summons.

44.Further, proceedings of this kind are often brought as writ actions, especially when a plaintiff seeks summary judgment, see for example Link Brain Limited v Fujian Finance Company Limited (unreported, CACV 104/1989, 1990.02.20).

45.D’s complaint that an action by writ would incur unnecessary costs was neither here nor there, as it was within P’s right to begin by writ. In my judgment, any costs concern can be addressed by conducting these proceedings in a reasonable and cost-efficient manner and an appropriate costs order.  More importantly, it is difficult to see how striking out the SOC and requiring P to begin a fresh set of proceedings by way of an originating summons can lead to any saving on costs.  I find that the Section 12 Ground is without merit.

46.As for the Lack of Merit Ground, D contended that there was no room for P to refuse to complete the transaction and P’s claim was bound to fail.  D further alleged that P should have known that his case was without merit and therefore should not have brought these proceedings.  Although I have found that D has credible defences to the SOC, I do not consider them to be so strong that P’s claim was bound to fail.  I would accordingly dismiss this ground as well.

47.For the reasons above, I would dismiss the Striking Out Summons. I find that the Striking Out Summons was entirely without merit and that D should bear P’s costs in the Striking Out Summons with certificate for counsel.

DISPOSITION

48.For the reasons given above, I make the following orders:

(1)  The Order 14 Summons be dismissed;

(2)  D do file and serve his defense and counterclaim (if any) within 28 days of this decision;

(3)  The costs of the Order 14 Summons be in the cause, with certificate for counsel;

(4)  The Striking out Summons be dismissed; and

(5)  D shall pay the costs of the Striking Out Summons to P, with certificate for counsel, to be taxed if not agreed.