Chang Wing Ka John v. Chang Wing Dee and Another
Read the full judgment text of HCMP 1790/2016 on BabelCite. This High Court CFI judgment was delivered on 30 December 2025.
1. These actions concern the estates of the late Tsui Yuen Ying ( “Mother” ) and of the late Chang Yin Ching ( “Father” ) respectively (collectively, “the Estates” ).
Cited by 1 case · Cites 7 cases
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HCMP 1790/2016 and HCMP 1791/2016 (Consolidated) [2025] HKCFI 6479 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 1790 OF 2016 _________________
_________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 1791 OF 2016 _________________
_________________ (Consolidated by the Order of the Honourable Mr. Justice Chow
_________________ DECISION _________________ A. BACKGROUND 1.These actions concern the estates of the late Tsui Yuen Ying (“Mother”) and of the late Chang Yin Ching (“Father”) respectively (collectively, “the Estates”). 2.The Estates include, among other things:
3.Father and Mother had four children, namely, John, Esther, Yvonne (who predeceased her parents) and Wing Dee. 4.Father died on 3 February 1999, and Mother died shortly thereafter on 8 September 1999. 5.After 10 years of litigation in both Hong Kong and Canada, John, Wing Dee and Esther entered into a Mediation Agreement dated 6 March 2009 (“the Settlement Agreement”), which subsequently became the subject of a Tomlin Order made by Lam J (as Lam PJ then was) on 12 January 2010 in HCA 48/2001. The terms of the Settlement Agreement are set out in Annex 1 of this Decision. 6.On 14 July 2016, John commenced these proceedings, in which he, among other things, sought to remove Wing Dee as the administrator of the Estates. On the other hand, Wing Dee and Esther counterclaimed against John on the grounds that that he has failed to render proper accounts of the properties in Canada and that he had been holding the same as if they were his own. They asked for, among others, an order that John be removed as trustee of the properties of Mother under a declaration of trust dated 4 March 1999 and that Wing Dee be appointed in his stead. 7.At first instance, Deputy High Court Judge To made the following orders on 11 January 2021:
8.DHCJ To’s Judgment dated 11 January 2021 (“the CFI Judgment”) was partially reversed on appeal (“the Appeal Judgment”). For the present purpose, I need not go into the details of the part of the orders which was reversed. 9.On 5 October 2023, John made an application to enforce the 2021 CFI Orders. 10.The said application came before this Court on 21 May 2024. By consent, the following orders were made (“the Consent Order”) upon Wing Dee’s undertakings to (i) pay into Court the entire balance of the HSBC account (in which he held John’s entitlements in the Estates) within 14 days of the Consent Order; and (ii) keep John’s share of securities, shares and jewellery in the Estates in safe custody:
11.On 27 May 2024, HK$132,891,345.73 was paid into Court by Wing Dee (“the Payment In”). 12.On 22 July 2024, Wing Dee took out a summons for extension of time to comply with the Consent Order. 13.On 28 August 2024, John took out a summons for an order of payment out of a sum of HK$33 million. 14.At the call-over hearing of the 2 aforesaid applications held on 3 September 2024, the Court, among other things, ordered by consent of the parties that a sum of HK$13.7 million be paid out forthwith to John, on the basis that, according to Wing Dee’s submissions, the said amount was the “best case” of John. 15.On 30 September 2024, Wing Dee provided John with the following reports:
16.On 17 February 2025, John took out a summons (“the Distribution Summons”) and asked for the following orders:
17.On 22 August 2025, Wing Dee produced an updated account by Ms Susan Wong of WWong Consultancy Limited which was said to be the final Estate account. 18.By consensus reached at the substantive hearing, this Court would in this Decision only deal with paragraphs 3, 4(ii), 5, 6 and 7 of the Distribution Summons. The rest of the said summons would be dealt with later upon filing of further evidence by the parties. B. THE CS WONG REPORT 19.As far as the Distribution Summons[1] is concerned, the disputes between the parties relate mainly to the content of the CS Wong Report, which concluded that John owed Wing Dee and Esther a sum of HK$140,226,564.17. On that basis, Wing Dee alleged that none of the monies remaining in Court can be released to John (and instead the latter has to pay an additional HK$21,035,220 over to his siblings). 20.The said total sum of HK$140,226,564.17 (“the Deductions”) comprises 5 parts, namely:
C. THE RESPECTIVE STANCE OF THE PARTIES 21.It is Mr Clifford Smith SC (leading Ms Natalie So)’s argument that the Deductions are clearly not justified, and therefore should be dismissed outright, and that, given there is no dispute that John is, but for the Deductions, entitled to the amount paid into court[2], there should be an order for payment out of the remaining amount of the Payment In. It was also submitted that John’s entitlement of shares and jewellery held by Wing Dee should be distributed to him immediately. 22.On the other hand, Mr C Y Li SC (leading Mr Avery Chan) submitted on behalf of Wing Dee that since there are disputed issues in relation to the Deductions, the Court should not decide on the Distribution Summons summarily, but rather give directions for trial. D. DISCUSSION D1. The account and inquiry procedure 23.John has cited, among other things, “Order 43 rules 2 to 4 of the RHC” at the marginal note of the Distribution Summons. Because of that, it was submitted on behalf of Wing Dee that the Order 43 procedure is a summary procedure and is not appropriate where the parties are in substantial dispute of fact (and for that matter also law) which is fundamental to the manner by which the account is to be taken, and in such circumstances, those issues ought to be resolved first. 24.Heavy reliance has been placed by Mr Li SC and Mr Chan on the case of Man On Sum v Man Ping Hei [2016] 5 HKLRD 150, in which Chow J (as Chow JA then was) has summarised the relevant principles as follows:
25.In addition, this Court has been referred to, among others, the cases of Crane World Asia Pte Limited v Hontrade Engineering Limited (HCA 109/2014, unreported, 4 September 2014) and Kids World Limited v XL Machine Limited & Others (HCA 125/2002, unreported, 18 September 2003), in which it has also been held that an order of account is inappropriate if there are preliminary issues which have to be decided. 26.On the basis of the above, Mr Li SC has urged this Court not to resolve the factual disputes between the parties summarily at this stage, in light of the many preliminary issues which Wing Dee has raised. Rather, it was said that directions should be given so that those issues can be adjudicated on in the first place. 27.With respect, I do not think it is right to say that, once Wing Dee has raised certain issues which have to be decided, the Court would be bound to give directions for the matters to be decided at a trial. I also refuse to accept that the Court must be wrong in principle if it decides to rule on the disputes summarily. In my view, the situation here is akin to a summary judgment application. If the alleged dispute raised by Wing Dee is not arguable at all, I cannot see why the Court is bound to prolong the procedure by ordering a trial. This is contrary to the underlying objectives of the Rules of the High Court. On the other hand, if the matter is not one which can be resolved on paper summarily as such, then this Court has no choice but to give directions for trial, even though that means this saga which has already lasted for more than two decades has to continue. 28.The above approach is not inconsistent with the principles which are referred to by a number of authorities cited by Wing Dee’s legal team, in which the court held that there were matters which could not be determined summarily. 29.Another matter which should be borne in mind is that, as pointed out by Mr Smith SC, all the cases cited by Wing Dee on Order 43 of the Rules of the High Court are cases in which the court had not already made an order for account. However, we are not in that situation at all. As explained above, an order for account had already been given herein. 30.In short, the manner by which the disputes between the parties are to be resolved must be depending on the nature of the disputes and the particular circumstances of the case. D2. The Deductions 31.I will now turn to consider each item of the Deductions one by one. D2.1 The 5 Spadina Units 32.The first head of the Deductions from John’s share of the Estates is the sum of HK$45 million in relation to Spadina Units 501, 705, 706, 803 and 907. 33.As a matter of background, the aforesaid Spadina Units are all part of the Estates. Pursuant to Clause 7 of the Settlement Agreement, the parties agreed that, out of the above Spadina Units, Esther will take up Spadina Units 803, 705 and 706, whereas Wing Dee will take up Spadina Units 501 and 907. 34.In Part 1 of the CS Wong Report which is said to support the Deductions, it is stated that:
35.By the above alone, it is simply impossible to understand Wing Dee’s justification to deduct HK$45 million from John’s entitlement in the Estates. 36.In Wing Dee’s 4th Affirmation, he explained the HK$45 million deduction as follows:
37.I am of the view that these grounds are clearly unsustainable and are not arguable at all:
38.In order to ease the concerns on the part of Wing Dee and Esther, Mr Smith SC told this Court that John is willing to give an undertaking to the Court to effect the transfers of the 5 Spadina Units. The wordings of the undertaking have been set out in paragraph 1 of Annex 1 attached to John’s skeleton submissions. Even if such an undertaking was not offered, I would have come to the same conclusion that the HK$45,000,000 deduction is totally unjustified which must be reversed. Having said that, I am of the view that, given the parties’ long litigation history, there is no harm for the Court to accept such an undertaking, which I hereby do. 39.As far as the disposition tax is concerned, it has been provided under Clause 7(g) of the Settlement Agreement that “All costs of transfer & tax will be shared by the parties”. There is thus no reason why it should be treated as if John is solely responsible for the same. It should also be noted that there is no evidence that part of the entitlement of Wing Dee and Esther has been withheld for the purpose of such disposition tax. 40.To conclude, the alleged deduction of HK$45,000,000 from John’s entitlement in the Estates is totally unjustified. There is so lack of merits in this part of Wing Dee’s case that, in my view, it will be a waste of time and costs for the Court to direct this issue to be tried. D2.2 The 4 Robson Units 41.The subject matters here are the Robson Units 302, 303, 701 and 801 which were originally held by Father, Mother, John and Wing Dee as joint tenants. John and Wing Dee have become the only joint tenants of these properties upon the demise of both Father and Mother. 42.As far as this head of Deductions is concerned, the relevant part of the Settlement Agreement is Clause 7(d) thereof, under which John will take up the shares of Wing Dee of Robson Units 302, 303, 701 and 801. It is also provided that Wing Dee will be paid by John individually. 43.The relevant part of the CS Wong Report reads:
44.In his 4th Affirmation, Wing Dee explained that:
45.I am of the view that it is crystal clear that Wing Dee’s argument does not hold water at all, to the extent that there is no triable issues which have to be resolved at a trial as such. 46.This is because although the Settlement Agreement is indeed an agreement which is for the global settlement of all disputes among the siblings, that does not mean that Wing Dee is entitled to hold up John’s entitlement which he, as administrator of the Estates, is supposed to distribute, for the sake of his (Wing Dee’s) own personal interest. In a way, it is an abuse of his power as administrator of the Estates. 47.The reliance on the CS Wong Report in support of this head of Deduction is equally bad because Ms Susan Wong, the accountant, has, like Wing Dee, mixed up the two different capacities of Wing Dee. 48.As far as the disposition tax for the transfer of the 4 Robson Units is concerned, that is again a matter between Wing Dee (in his personal capacity) and John even if such tax is payable. Hence, it is not right to withhold any entitlement of John in the Estates for that reason. 49.I therefore conclude that the deduction of HK$18 million is totally unjustified and should be taken out from the formula. 50.I should also note that Wing Dee has procured the Kroll Report as a valuation report of the 4 Robson Units, despite the fact that the way to value the aforesaid properties has been clearly provided for under Clause 7(e) of the Settlement Agreement[3]. It was submitted by his counsel that it is necessary to do the Kroll Report because the valuation method prescribed under Clause 7(e) of the Settlement Agreement is “not feasible nor accurate, as these entities are not professional valuer of properties”[4]. It was also boldly stated that “there is no evidence adduced by [John] to dispute Kroll’s market valuation of the Canadian Properties as given in Kroll’s 1st Report and confirmed in Deloitte Report”[5]. With greatest respect, it is simply not open to Wing Dee to rely on such arguments, for he is bound by the Settlement Agreement. It is not up to him to depart from the terms of the Settlement Agreement whenever he wishes to do so. Again, I refer to his counsel’s representation that it is his position that he has to perform the Settlement Agreement. D2.3 The residual rental income 51.Wing Dee seeks to deduct the sum of HK$48,894,060 from John’s entitlement of the Estates under this head. 52.Paragraph 4(a) of the Settlement Agreement provides that:
53.John has produced a report by Ms Mavis Tan (a chartered accountant and partner of Control Risks Pacific Limited) dated 23 January 2025 (“the Control Risks Report”), which, among other things, confirmed that the Estates are accountable to John in the sum of CAD231,885 being the net deficit from the Spadina Units and Robson Unit 101. However, on the strength of the Kroll Report, Wing Dee disagreed with this conclusion. In support of his case, Wing Dee has produced two reports, namely, the Kroll Report and a report by Deloitte dated 11 June 2025 (“the Deloitte Report”). He has put forward a simulated model of the rental income which he said John should have fetched but for his (alleged) breach of the duty as a trustee of the said properties. There is also an allegation that the level of expenses which John has allegedly incurred is unusually high. Moreover, Wing Dee challenges that the documents and information used in the Control Risks Report are unreliable and incomplete. 54.On the above bases, it was submitted on behalf of Wing Dee that the issues concerning the rental (and expenses) matters of the Spadina Units and Robson Unit 101 can only be resolved after detailed examination of the documents and cross-examination of the makers of the statements. 55.I agree with Mr Smith SC that the approach adopted by Wing Dee has quite a number of problems. 56.Firstly, it is apparent that the basis upon which the Deloitte Report was done is wrong. 57.In paragraph 3.3 of the Deloitte Report, it was said that:
58.However, it has been clearly held by the Court of Appeal in the Appeal Judgment that, in the present case, the statement of accounts to be produced by John need not be audited for the purpose of the Settlement Agreement. It is thus regrettable that Wing Dee is still mounting his challenges against John’s accounts on the basis that the accounts were unaudited. 59.If the evidential basis in support of this head of the Deductions is gone, the ground for keeping the HK$48,894,060.00 would also collapse. 60.Secondly, in my view, Wing Dee’s challenges that the information and documents relied on by Ms Tan in the Control Risks Report cannot even get off the ground. This is because, pursuant to the Clause 4(a) and (c) of the Settlement Agreement, it was the mechanism built in in the parties’ agreement that the account matter should be finalised by John’s production of a statement of account, which, if it is so requested by the other side, has to be certified by a qualified accountant. Now that Ms Mavis Tan who is a chartered accountant has confirmed the accounts, I do not think it is up to Wing Dee to say that Ms Tan’s conclusion was based on incomplete or unreliable materials. That is the whole purpose of getting a professional accountant to certify the accounts. 61.Thirdly, as far as the expenses incurred are concerned, Mr Li SC admitted that there is no dispute that the figures of expenditures adopted by Ms Tan in the Control Risks Report represent the actual amount of expenses incurred by John. That being so, it is futile for Wing Dee to establish the “market norm” of expenses. 62.I also do not understand why Wing Dee would insist that the expenses incurred by John in maintaining the Spadina Units and Robson Unit 101 as trustee (or at least partly thereof) should not, as a general principle, be set off against the rental income which John has received. This is contrary to Clause 4(a) of the Settlement Agreement, which provides that the statement of account which John is to produce shall show “all items of income & expenditure of the Canadian Properties”. 63.Fourthly, insofar as it is Wing Dee’s case that John has breached his duty as a trustee of the Spadina Units and Robson Unit 101 to fetch the market rent and/or to rent the premises out at all times, the short answer is that it is up to Wing Dee to pursue that claim in a separate action if he considers that it is his duty as the administrator of the Estates to do so. However, I do not think, for the present purpose, there is adequate material for Wing Dee to say that, on the basis of the market rental, John is prima facie liable as a trustee. That would be a quantum leap. 64.Fifthly, while on the face of it, it seems that Wing Dee has produced 2 separate reports (the Kroll Report and the Deloitte Report) in support of his case here, those reports were in fact done by the same person – a Mr Prakash Venkat, who is an accredited appraiser with the Appraisal Institute of Canada. 65.Pausing here, I am of the view that it is necessary to refer to the following parts of the CFI Judgment in which DHCJ To had the following to say:
66.While it had been held in the Appeal Judgment that the learned Judge had erroneously come to the conclusion that “certified accounts” and “audited accounts” are the same, the 2021 CFI Orders were not set aside. Hence, the requirement of there being a professional accountant to finalise the accounts has remained intact. 67.However, without disrespect, Mr Venkat is not an accountant at all. He is therefore not eligible to do any expert report to challenge the Control Risks Report. 68.In the Deloitte Report, it was stated by Mr Venkat that the Kroll Report was prepared by himself and Ms Connie Lee who is a chartered professional accountant[6]. In paragraph 16 of Wing Dee’s 4th Affirmation, Wing Dee also “note[d] that the Kroll Report on income calculation was also prepared by Connie Lee”. However, I regret to point out that that was not what was stated in the Kroll Report, in which it was unequivocally written in the covering letter thereof that:
69.Although the said covering letter ended with a sentence saying that Wing Dee and Esther may contact either Mr Venkat or Ms Connie Lee if they have any questions, that apparently is not a representation that the Kroll Report had been in any way contributed to by Ms Connie Lee. 70.Wing Dee’s counsel also submitted that the accounts are prepared by Ms Susan Wong who is an accountant. However, while the CS Wong Report was indeed prepared by Ms Wong, it is obvious that the basis of the CS Wong Report is the Kroll Report. Hence, this argument does not assist Wing Dee. 71.Wing Dee himself also suggested in his 4th Affirmation that Mr Venkat is in the view of Kroll Limited the best candidate to undertake the task. That is totally beside the point, as Wing Dee is subject to the 2021 CFI Orders which had specified the expertise of the expert. 72.All in all, I reject Wing Dee’s arguments on the so-called “unaccounted residual rental income”, which in my view are totally unsustainable and unarguable. D2.4 The Skyscraper Flat 73.The next head of Deductions is in relation to the Skyscraper Flat. 74.The said property was held by Father on trust for John and Wing Dee in equal shares. In other words, it is not part of the Estates. 75.In paragraph 8(a) of the Settlement Agreement, it was provided that John will take over Wing Dee’s share of the Skyscraper Flat. 76.In Part 3 of the CS Wong Report, it is stated that:
77.In my view, the reasoning of the conclusion reached in section D2.2 above applies equally to the Skyscraper Flat – since it does not belong to the Estates, it is not up to Wing Dee, in his capacity as the administrator of the Estates, to withhold certain payment owed to John for his (Wing Dee’s) own personal interest. Again, this is an abuse of his power as administrator for his own benefit. 78.The deduction in the sum of HK$19,650,986.70 is therefore not justified, and should be taken out from the formula. 79.In the course of his argument, Mr Smith SC stated that John is also willing to give an undertaking to pay HK$14,370,000 to Wing Dee and bear 50% of the alleged expenses for the Skyscraper Flat to date in consideration of the transfer of the latter’s 50% interest in the property. However, given the Skyscraper Flat is not part of the Estates, and coupled with the fact that there may well be a dispute as to the valuation of the Skyscraper Flat, I do not think the Court should accept John’s undertaking as such. The two brothers should sort out this aspect of their disputes themselves. As I pointed out to the parties, if they are sensible enough, the matter can be resolved by the appointment of a single joint expert who may do an assessment of the expenses. As for the value of the property, the mechanism of valuation has been set out in the Settlement Agreement. D2.5 Expenses reimbursable 80.Finally, Wing Dee seeks to deduct HK$8,681,516.47 under this head. 81.This stance is made on the basis of Part 4 and Appendix 4 of the CS Wong Report, in which a total of 24 items was set out, and it was said that John should reimburse the Estates for those legal and professional fees, tax and other expenses. 82.At the hearing, Mr Smith SC only sought to argue on 3 out of those 24 items, and he said that the rest may be dealt with “at some point”, and they “will be either resolved amicably or not”. Those 3 items are:
83.In relation to the taxed costs of HCMP 48/2001, Mr Smith SC submitted that those 2 items should not have been taken into consideration because parties have agreed not to enforce any previous costs order against each other by virtue of Clause 6(a) of the Settlement Agreement (which is dated 6 March 2009). 84.In respect of the costs of the appeal, the figure of HK$2,000,000 was only an estimate. However, parties have recently come to an agreement that such costs be fixed at HK$762,500. Hence, an amount of HK$1,237,500 is no longer required to be withheld. 85.The overall effect of the above arguments is that the sum of HK$1,791,065 (HK$1,237,500 + HK$496,439 + HK$57,126) should not be further held up. 86.It seems to me that Wing Dee’s counsel had no answer to the arguments above save as to say that, be that as it may, there should be no payment out at this point of time because it is unknown what the final net amount would be. 87.I do not accept such an argument. In my view, if there is no reason why any part of the Estates should be further withheld from being distributed to John, then that part of the Estates should be paid to John forthwith. There is no need to wait. 88.Therefore, the sum of HK$1,791,065 should be released to John, and only HK$6,890,451.47 should remain in court. D2.6 The Deductions - conclusion 89.To conclude, I hold the view that all the Deductions (apart from HK$6,890,451.47) are not justified. 90.Mr Li SC argued that, be that as it may, the Court has no jurisdiction to order interim payment pending the taking of account. With respect, this argument is misconceived, because as Mr Smith SC pointed out, there must have been an account already taken which resulted in the initial sum of HK$132,891,345.73 paid into Court. In this regard, as aforesaid, Mr Li SC has also admitted at the substantive hearing that, but for the Deductions, John is entitled to the entirety of the said sum as his share in the Estates. 91.I have not forgotten Mr Li SC’s reminder that, according to case authorities such as Re Estate of Lau Wai Chau [2024] HKCFI 175, an administrator must provide for future and contingent liabilities of the estate. However, it should be recognised that there is no hard and fast rule and the court does retain a discretion on this matter. It is open to the court to permit distribution without requiring the administrator to make a retention or obtain security in respect of contingent or unknown liabilities in appropriate circumstances, for example, if the court holds the view that the injustice to the beneficiaries being kept out of the benefit on account of unascertained liabilities that might never arise outweighed the risk that unknown and contingent creditors who had paid for insurance cover might find their claims unsatisfied: at [20]. 92.In the present case, I am of the view that the Court should exercise its discretion in allowing distribution without waiting any further. As far as the potential claim against John by the Estates is concerned, on the basis of the materials placed before this Court, I cannot say that it is probable that John will be held liable. He has been kept from his entitlement for a very long time whereas distributions of large amount of money have been made to Wing Dee and Esther long time ago. It is simply unfair to John for him to be treated in this way. Furthermore, even if he at the end of the day is held liable, there is no evidence that he will be unable to satisfy any judgment which will be made against him. 93.Therefore, the sum of HK$112,300,894.26 (the remaining sum in Court after the release of HK$13.7 million[7] minus HK$6,890,451.47) should be released to John immediately. D3. Other Distributions D3.1 Shares 94.In the CS Wong Report, it was recognised that there are tradable shares held by Wing Dee, and the total market value of those shares as at 26 September 2024 was HK$28,065,854.42. 95.It was further stated in the CS Wong Report that:
96.It can be seen that the sole reason for the non-distribution of the listed shares is that the balance of John’s entitlement paid into court is said to be insufficient to cover the alleged amount owed by John to Wing Dee and Esther in the sum of HK$140,226,564.17. Following from my rulings hereinabove, this basis is completely gone, because the only item of Deductions which may be justified is the legal and professional costs, tax and other expenses in the sum of HK$6,890,451.47. This amount will remain in Court pending the further determination of the merits of Wing Dee’s claim of reimbursement. 97.That being the case, there should be forthwith distribution of the listed shares to which John is entitled. D3.2 Jewellery 98.For the same reason, there is no justification for Wing Dee to withhold the distribution of the jewelleries to which John is entitled. E. ORDERS 99.I make the following orders:
100.As far as the legal and professional costs, tax and other expenses in the sum of HK$6,890,451.47 is concerned, parties should discuss between themselves as to how they would like to have the matter resolved, and shall use their best endeavours to agree on the directions to be sought from the court for the purpose of the determination thereof (if necessary). 101.Parties shall lodge the draft directions for approval on or before 27 January 2026. 102.In the event the parties are unable to agree on the directions, each party should submit his respective draft directions on or before 3 February 2026, giving reasons for disagreeing with the other party’s draft. I will determine the matter on the papers thereafter, unless a party raises an objection to such a course, with supporting reasons. F. COSTS 103.It may be recalled that part of the Distribution Summons (for providing a just and true account and make due distribution of certain unaccounted assets) has been adjourned to be dealt with in due course, upon the parties’ filing of further evidence. I would apportion 25% of the costs incurred on the Distribution Summons so far to this part of the application. 104.As for the remaining 75% of the costs, I tentatively take the view that John should be awarded 90% of his costs, having taken into account his failure to get the entirety of the sum of HK$8,681,516.47 under section D2.5 above. 105.Further, by reason of my finding that Wing Dee has abused his position as administrator of the Estates for the protection of his own personal interest, I take the preliminary view that he should personally bear at least part of the costs. 106.For the above reasons, I make the following costs order nisi:
107.The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.
Mr Clifford Smith SC leading Ms Natalie So, instructed by Norton Rose Fulbright Hong Kong, for the applicant Mr C Y Li SC leading Mr Avery Chan, instructed by Yung, Yu, Yuen & Co, for the 1st respondent in both actions Annex 1 – The Settlement Agreement […] (1) The parties agree in principle to divide all the family assets into 3 equal shares after assessing the pool of assets (hereinafter referred to as ‘pool of assets’) in the manner hereinafter described. (save & except hereinafter mentioned) The distribution of assets will take place only after the court approval, Yvonne’s 2 sons consent, Department of Justice & estate duty clearance & all payments of reasonable expenses herein mentioned. (2) The parties agree to assign US$4 million to charitable purposes out of the pool of assets in the following proportions:
(3) The parties agree that Yvonne’s 2 sons will get US$1 million per person out of the pool of assets provided that they will give the necessary consent to the family arrangement that the parties have agreed hereinafter. The parties will instruct a solicitor to prepare the necessary documents for their signature. (4) The parties agree to full disclosure of all information in respect of the accounts under the pool of assets as soon as practicable and in any event not later than 31st May, 2009 30th June, 2009. The parties agree to perform the following acts to the and to exchange of the information in the following manner:
(5) In respect of the latest request form the Inland Revenue Department to clarify the accounts under the estate of the Mother, John agrees to follow up and take such action as appropriate according to the information provided by Wing Dee. (6) In respect of legal costs incurred by the parties, the parties agree to the following:-
(7) The parties agree to distribute the Canadian Properties under Schedule ‘A’ in the following manner: and to enforce all such documents & take such actions as necessary:
(8) The parties agree to the distribution of the Hong Kong properties as follows:
(9) The parties agree that Wing Dee will be appointed the official Administrator of the estates of the Father and the Mother as soon as practicable. He will have the authority to pay all reasonable costs in administration of the estates of the Father and the Mother and related costs including legal costs and mediation costs that the parties have agreed to come out of the pool of assets. (10) The parties agree that they will use mediation in the future as the forum to discuss queries about the accounts, distribution and matters arising in the administration of the estates of the Father and the Mother and all matters relating to the pool of assets and distribution thereof. The future costs of mediation will come out of the pool of assets. (11) The parties agree to have the terms of this Agreement to be approved by the Court and agree to instruct their respective solicitors to proceed accordingly. All Canadian legal proceedings will be stayed forever. All parties will not claim against each other in respect of the current litigation after distribution of the pool of assets as herein described. Wing Dee will receive the sum of HK$8,740,980.86 from the pool of assets being moneys due by the pool of assets to Wing Dee. Save and except the transactions mentioned in this Mediation Agreement, all the loans due from the parties to the estates will be waived and not to be pursued. SCHEDULE ‘A’ Canadian Properties: Properties I: 188 Spadina Ave. units 501, 705, 706, 707, 801, 803, 905, 907. Properties II: Robson Street, “Sundial” unit 101. Properties III: Robson Street, “Sundial” units 302, 303, 701, 801. [1] Limited to the orders which this Court is asked to consider under this Decision – see [18] above [2] This was confirmed by Mr C Y Li SC at the hearing [3] The value will be taken from 3 independent real estate agents namely, Re-Max, Royal Lepage, Toronto Dominion Bank and the average price will be used for the final adjustment upon distribution of the pool of assets among the parties [4] Paragraph 58 of Wing Dee’s skeleton submissions [5] Paragraph 59 of Wing Dee’s skeleton submissions [6] Paragraph 2.2 of the Deloitte Report [7] See [14] above [8] See [20] above | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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