Lie Ming, The Committee of the Estate of Hjf v. Cheng Kam Wa Thomas and Others

HCAP 3/2024

[2026] HKCFI 1803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 3 OF 2024

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D E C I S I O N

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A.  INTRODUCTION

1.By an Amended Summons filed on 30.9.2025 (“the Amended Summons”), Parkview (Suites) Limited (“the Applicant”) seeks interpleader relief in respect of:

(1)  the items specified in the Schedule to the Amended Summons (“Items”); and

(2)  a motor vehicle particularised in [1] of the Amended Summons (“Car”); and

2.The Items include cash amounting to HK$1,596,082.00 (“Cash”).

3.The Applicant claims that it is entitled to have an order to retain the Cash as partial satisfaction of the Charges (as defined in [27] below) in these interpleader proceedings (“the Retention Order”). The Amended Summons is framed in a way that subject to the Applicant’s entitlement to the Cash, the Items and the Car be transferred off the Applicant’s premises to such place(s) as agreed between the Plaintiff (“P”) and the 1^st to the 4^th Defendants (“D1” to “D4” respectively, and “Ds” collectively).

4.All the Defendants are not opposing the Summons. Ds indicated no objection to the Amended Summons, while the 5^th Defendant (“D5”) adopted a neutral position. All the Defendants have not filed any evidence.

5.P opposes the Amended Summons.

6.In this hearing, the Applicant is represented by Mr Jun Lee, P is represented by Mr Byron Chiu, and Ds are represented by Mr Enoch Fong. D5’s attendance has been excused[1].

7.Having heard the parties’ respective submissions, the difference between the Applicant and P is whether the Applicant is entitled to have the Retention Order. Subject to this, the parties are in agreement that the following order should be made, and I have made that order at the end of the hearing:

(1)  P and Ds, whether together or any one of them, do within 56 days physically transfer the Items (except the Cash) and the Car, off the Applicant’s premises at No 88 Tai Tam Reservoir Road, Hong Kong, to such place(s) as to be agreed between P and D1 to D4, failing which the Items (except the Cash) and the Car be disposed of as the Court may direct.

(2)  In the event that P and Ds are unable to comply with paragraph (1) above within 56 days, P and Ds shall jointly propose the directions for the disposal of the Items (except the Cash) and the Car to the Court by a joint letter within 14 days thereafter. If there is no agreed proposed directions, each side shall set out its/their own proposed directions with reasons in support thereof in the joint letter.

(3)  The Cash be paid into Court by the Applicant within 14 days.

(4)  There be liberty to apply.

8.In this decision, I will determine (a) whether the Applicant is entitled to have the Retention Order; and (b) costs of these interpleader proceedings.

B.  BACKGROUND[2]

9.The subject matter in this probate action is the estate of the late Mr Lie Sen Nen (“LSN”), deceased.

10.Ms Lie Ming (“LM”) is the daughter of LSN and his wife Madam HJF. LM’s husband is Chan Wing Wah Leonard (“CWW”).

11.D1 and D2 were the staff of LSN during LSN’s lifetime. D3 and D4 are LSN’s nieces. Ds are the co-executors of a will made by LSN dated 15.11.2020 (“the 2020 Will”). Under the 2020 Will, the beneficiaries are Ds and HJF.

12.On 18.04.2016, LSN and HJF began residing in Suite 809 of the Applicant’s serviced apartments (“Suite 809”). At that time, CWW was the licensee for Suite 809, but CWW has never resided in Suite 809.

13.On 18.10.2018, LSN became the sole licensee of Suite 809 and CWW became a “sharer/accompany”; and HJF remained as a “sharer/ accompany”. By 21.11.2019, CWW ceased to be “sharer/accompany”.

14.According to the Applicant, on 09.01.2021, upon the Applicant’s enquiry, LSN instructed the Applicant not to contact LM any further regarding his situation. LM was informed of the same on the same day and accepted as much.

15.On 18.05.2021, LSN and Hong Kong Parkview Management Services Ltd (an agent acting for the Applicant) agreed to a 1-year extension of LSN’s occupation of Suite 809.

16.On 14.03.2022, LSN was taken to the hospital by D4. On 07.04.2022, LSN passed away. On 17.05.2022, D2 informed the Applicant the death of LSN.

17.According to the Applicant, on 17.05.2022, upon D2’s request, the Applicant agreed to lock Suite 809 pending the “processing” of LSN’s will, on the condition that any outstanding charges would be “taken care of by Mr Lie’s will” in due course (“Agreement”).

18.On or around 20.05.2022, upon enquiry from D2 as to whether she might be able to “clear” the items in Suite 809 “based on a copy of Mr Lie’s will”, the Applicant informed D2 that “official legal probate” must first be obtained by D2 to do so.

19.On 18.06.2022, D2 informed the Applicant that it may take 4-6 months for LSN’s will to be “processed”.

20.On 21.06.2022, the Applicant received a copy of the 2020 Will from Messrs Chui & Lau (“C&L”), naming therein Ds as the co-executors of LSN’s estate. Medical reports showing LSN’s mental fitness to make the 2020 Will at the material time were also provided to the Applicant.

21.On 10.08.2022, D2, D4 and C&L inspected Suite 809 and took an inventory of inter alia the valuables and cash found in the safety deposit box therein.

22.On 23.08.2022, LM was appointed as the Committee of the Estate of Madam HJF. According to the Applicant, the Applicant only learned the appointment for the first time when P’s former solicitors informed the Applicant’s solicitors by a letter dated 30.04.2025.

23.From 01.2024 onwards, the Applicant informed D2 on a monthly basis of the accrued and accruing charges in respect of Suite 809.

24.In late 2024/early 2025, due to the growing concerns as to how long it was taking D2 and her co-executors to “process” LSN’s will and the accruing charges for Suite 809, the Applicant instructed solicitors to assist with the matter. The Applicant’s solicitors then conducted a litigation search and discovered that P (in her capacity as the Committee of the Estate of Madam HJF) had commenced this action on 11.01.2024 to have a will of LSN dated 28.11.2016 (“2016 Will”) propounded as LSN’s last true will, instead of the 2020 Will. Under the 2016 Will, LSH bequeathed everything in his estate to HJF, and appointed HJF as the sole executrix of the will.

25.At around the same time, due to hygiene and maintenance concerns, a clearance of Suite 809 was required. On 07.05.2025 and 08.05.2025, Suite 809 was cleared and the Items were relocated to Suite 111.

26.In the correspondence leading up to the clearance of Suite 809, P (in the capacity of the Committee of the Estate of Madam HJF) indicated the following position:

(1)  asserting beneficial ownership/interest over several of the Items;

(2)  indicating that she and Ds are in discussion over relocating the Items to a property owned by LSN and Madam HJF to ensure their safe custody and to save on storage fees; and

(3)  that the Applicant should not contravene s.60J of the Probate and Administration Ordinance (“PAO”) by dealing with the Items.

27.According to the Applicant, as of 8.5.2025, the Applicant’s charges for storing the Items and the Car on its premises amounted to HK$1,702,880.07. The repair/maintenance work having to be carried out by the Applicant in Suite 809 as a result of not being able to service the suite for 3 years amounted to HK$34,040. Further, since 09.05.2025, the charges for storing the Items in Suite 111 and the Car have been accruing at HK$28,000 and HK$3,000 per month respectively. The Applicant is claiming that LSN’s Estate is liable to pay those charges (“the Charges”) to the Applicant.

C.  DISCUSSION

C1.  Retention Order

28.Rules of the High Court, Order 17 rule 8 provides that subject to Order 17 rules 1 to 7, the Court may in or for the purposes of any interpleader proceedings make such order as to costs or any other matter it thinks just. Normally, the successful interpleader will have his charges and costs paid out of the fund or goods as a first charge, on the basis that the interpleader is almost always an innocent party caught in the dispute between rival claimants.[3] The Court has a wide discretion in this regard.[4]  The Court’s wide powers may be exercised notwithstanding that the order may interfere with property rights.[5]

29.Having considered the parties’ respective submissions, for the reasons set out below, I would exercise my discretion to refuse to accede to the Applicant’s request for the Retention Order.

30.There is no dispute that the Cash is property in LSN’s Estate.

31.The only basis put forward by the Applicant in support of its alleged entitlement to have the Cash as part payment of the Charges is the Agreement. The Applicant does not have an alternative case in support of its alleged entitlement. That being the case, it would be necessary to examine, based upon the materials now available, whether the Agreement is indeed an agreement binding upon LSN’s Estate.

32.As set out in [17] above, according to the Applicant, the Agreement is an agreement between the Applicant and D2. At present, it is not yet known which will (ie the 2020 Will or the 2016 Will) is the last will made by LSN. This contentious issue will only be resolved in the trial in these proceedings. If the 2016 Will is the last will validly made by LSN, there would be no basis upon which D2 may say that she would have the authority to make the Agreement on behalf of LSN’s Estate with the Applicant, and there would be no basis upon which it can be said that the Agreement is binding upon LSN’s Estate.

33.Mr Lee has fairly accepted that as to which will is LSN’s last will, this is an arguable issue which will only be resolved in the trial in these proceedings. Mr Lee has also accepted that the Agreement may or may not be binding upon LSN’s Estate.

34.However, Mr Lee submits that no matter which will is LSN’s last will, the discretion should be exercised in favour of granting the Retention Order. With respect, I am unable to agree with Mr Lee.

C1.1  Scenario 1 - 2016 Will being LSN’s last will

35.In this scenario, there would be no basis upon which D2 may say that she had the authority to represent LSN’s Estate to enter into the Agreement with the Applicant on 17.05.2022, and the Agreement would not be binding upon LSN’s Estate.

36.Mr Lee submits that in this scenario, the Applicant may still claim against LSN’s Estate for the Charges by relying upon the cause of action of unjust enrichment. With respect, I am of the view the Applicant is not entitled to run this argument.

(1)  Unjust enrichment is not a pure question of law. It involves both facts and law.

(2)  Unjust enrichment has never been raised by the Applicant in the affirmations filed in these interpleader proceedings, and the facts in support of such a claim have not been set out in those affirmations.

(3)  Having not raised unjust enrichment in the affirmations filed in support of the Amended Summons, P has not been given an opportunity to file evidence in opposition to such a claim. In the circumstances, as a matter of fairness, I am of the view that the Applicant should not be allowed to run an argument based upon unjust enrichment.

37.Mr Lee further submits that notwithstanding all the above, the discretion should still be exercised in favour of the Applicant for the following reasons:

(1)  At all times between 17.05.2022 until the Applicant becoming aware of this action, P failed to contact the Applicant to explain that there might be a challenge to the 2020 Will or that D2 might actually not be one of LSN’s executors.[6]

(2)  Irrespective of the Agreement, neither P nor Ds can deny that they were aware at all material times that LSN had resided at the Applicant’s premises for a period of 6 years prior to his passing, that LSN had accumulated a significant amount of possession in Suite 809 during the period and that no one, attempted to swiftly obtain probate of LSN’s Estate and deal with the Items or the Car. In the circumstances, the Applicant should not be blamed for the amount of the Charges incurred.[7]

(3)  In the circumstances, it would be unfair to the Applicant if its request for the Retention Order is refused.

38.Mr Lee has referred me to Leung Ho Yiu v Winner Godown Ltd[8], in which the Court has allowed the interpleader to recover their costs and charges from the plaintiff, even that there was no contract between the plaintiff and the interpleader.

39.In my view, when it comes to the question of discretion, each case depends upon its own facts. In the circumstances of this case, if the 2016 Will is LSN’s last will and D2 had no authority to represent LSN’s Estate to enter into the Agreement, I would exercise my discretion against the Applicant’s request for the Retention Order for the following reasons:

(1)  Bearing in mind that (a) the Cash is property in LSN’s Estate, and (b) the sole basis of the Applicant’s claim to the Cash is the Agreement, while the Agreement is not binding upon LSN’s Estate, this is a strong factor against the Applicant’s request for the Retention Agreement.

(2)  On 17.05.2022, without seeing the 2020 Will and without seeing the letters of probate conferring authority on D2, the Applicant decided to accede to D2’s request and enter into the Agreement with D2. This is not a prudent way in handling the matters. By handling the matters in this way, the Applicant has to face the consequential risks.

(3)  The Applicant obtained a copy of the 2020 Will on 21.06.2022. There are some severe criticisms against LM (described as LSN’s daughter in the will) and CWW (described as LSN’s son-in-law in the will) in the 2020 Will. Anyone looking at the 2020 Will, by applying some common sense, would expect that there may be a challenge made by LM against the validity of the 2020 Will.

(4)  In my view, the points made by Mr Lee as summarized in [37] above are not sufficient to make out a case that refusing the Retention Order would be unfair to the Applicant.

(5)  If the Agreement is not binding upon LSN’s Estate, that does not mean that the Applicant would have no way to recover the Charges. Naturally, the Applicant may ask D2 to bear the Charges personally, and if necessary, commence legal proceedings against D2. There is no evidence showing that D2 is financially unable to pay the Charges to the Applicant.

C1.2  Scenario 2 - 2020 Will being LSN’s last will

40.Even assuming that the 2020 Will is the last will made by LSN, in my view, the Agreement is also not binding upon LSN’s Estate.

41.At the time of the Agreement, D2 had not yet obtained letters of probate and was not yet a representative of LSN’s Estate.

42.I agree with Mr Chiu that there are some insurmountable hurdles in the Applicant’s case.

(1)  There is nothing in the 2020 Will authorising the executors or any of them to enter into any new contract on behalf of the estate after the death of LSN.

(2)  It is clear that if a personal representative caused the estate to enter into an unauthorised contract, the liability under the contract would be borne by the personal representative personally. In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22^nd Ed) at §48-76, it is stated:

“…… if a representative enters into some unauthorised contract, they render themselves personally liable (de bonis propriis). They cannot involve the deceased's estate in some new, burdensome and unauthorised obligation.

Thus, a representative who, acting outside the scope of their powers, borrows money as representative and promises to repay as representative, is nevertheless personally liable for such repayment and is not entitled to plead plene administravit. The only possible judgment is that they are personally liable. …

Similarly, a claim on a promise by a defendant, as executor for use and occupation after the death of the testator, has been held to charge the defendant personally and not in their character of executor. So too, an executor who had promised to pay for goods delivered or for work and materials provided to them as executor, but who was not acting properly under their powers, was found to be liable in their personal and not in their representative character.” (Emphasis added)

(3)  Further and without prejudice to the above, if a personal representative carries on a business of the deceased, unless there is most distinct and positive authority and direction given by the will authorising the representative to do so, he is personally liable for all trade debts contracted since the death of the deceased. As stated in Williams, Mortimer and Sunnucks (supra):

“48-86 When a person engaged in trade or business dies, their trade or business descends to their representatives as part of their assets. The general rule was that the representatives have no authority in law to carry on the trade of the deceased. ……

48-87 Notwithstanding the general rule, the deceased’s will may permit the representative to carry on the deceased’s business. However, it has been said that in order to authorise representatives to carry on a trade, or to permit a trade to be carried on with the assets, there ought to be the most distinct and positive authority and direction given by the will for that purpose.” (Emphasis added)

“48-95 A representative who carries on the business of the deceased makes themselves personally liable for all debts which they contract in so doing after the death of the deceased. This is so even if they carry on that business under the authority of the will and even though they do so for the purpose of convenient realisation of the estate and avowedly acts as a representative. It is the universal principle that a representative who carries on the trade of the deceased is personally liable for all trade debts contracted since the death of the deceased, and may be proceeded against as a bankrupt although they are only in the position of trustee.” (Emphasis added)

(4)  I agree with Mr Chiu that the principles set out in subparagraph (3) above should not only apply to trade debts but should also apply to other debts. There is no principled distinction between trade debts or other debts incurred after the deceased’s death.

(5)  Thus, even if the 2020 Will is the true last will made by LSN, the liability under the Agreement should be borne by D2 personally and not by LSN’s Estate.

43.Mr Lee submits that the assets in LSN’s Estate vested in Ds from the moment of LSN’s death and as such, Ds were entitled, before proving of the will, to do almost all acts incident to their executorship, including entering into contracts for the due administration of LSN’s Estate.[9] With respect, even assuming that the 2020 Will is LSN’s last will and D2 would obtain the probate in due course, the problem in Mr Lee’s submission is that, in my view, the Agreement cannot be said as an agreement for the due administration of LSN’s Estate. While it is necessary to preserve the Items and the Car, there is no reason why these things should be stored in a luxurious residential unit and not in place(s) with less expensive rentals (for example, a storeroom in a warehouse).

44.I do not see any unfairness to the Applicant if the Retention Order is refused in this scenario. For the reasons set out in [39(5)], the Applicant may recover the Charges from D2. Whether D2 may get any reimbursement from LSN’s Estate is a matter between D2 and LSN’s Estate.

45.For the reasons above, I am of the view that even if the 2020 Will is LSN’s last will, I would still exercise my discretion against the Applicant’s request for the Retention Order.

C1.3  Conclusion on the Retention Order

46.For the reasons above, I exercise my discretion against the Applicant and refuse to grant the application for the Retention Order.

C2.  Costs of these interpleader proceedings

47.Mr Fong submits the irrespective of the outcome of these interpleader proceedings, Ds would not seek costs.

48.Mr Lee submits that even if the Retention Order sought by the Applicant is refused, the Applicant’s costs in these interpleader proceedings should be paid by P. He submits that all along, P and Ds are uncooperative in removing the Items and the Car from the Applicant’s premises. The Applicant has no alternative but has to take out these interpleader proceedings. The Applicant has obtained the interpleader relief as set out in the Amended Summons, save and except the Retention Order. Although P succeeds in resisting the application for the Retention Order, P has not stated her position clearly in her affirmation in opposition dated 18.12.2025 (“P’s Affirmation”) and raised some irrelevant matters in that affirmation. Taking into account all these, the Applicant would accept a discount of 20% off in the costs order in favour of the Applicant.

49.Mr Chiu submits that in the correspondence, the Applicant’s stance is that the removal of the Items and the Car from the Applicant’s premises is subject to paying the Charges owed to the Applicant first. In the Amended Summons, the removal of the Items and the Car from the Applicant’s premises is subject to the Applicant’s alleged entitlement to use the Cash to partially settle the Charges (“the Payment Condition”). P has to oppose the Amended Summons because the Payment Condition imposed therein is not acceptable. If P’s objection is valid, P should be regarded as the successful party in these interpleader proceedings and should get costs from the Applicant.

50.I agree with Mr Chiu. For the reasons submitted by Mr Chiu, costs of these interpleader proceedings should be paid by the Applicant to P.

51.As to the criticisms made by Mr Lee against P’s Affirmation, my view is as follows:

(1)  P has set out her position clearly in [26] of her affirmation. P has not deviated from that position in this hearing.

(2)  P’s Affirmation is a short affirmation of 10 pages only. While the reliance placed by P on each matter stated in that affirmation may not be the same in this hearing, there is nothing in that affirmation which is obviously irrelevant in these interpleader proceedings. In my view, there is no sufficient reason to deprive P of her entitlement to costs or any part of that entitlement by reason of the criticisms made by Mr Lee against P’s Affirmation.

Disposition

52.I dismiss the Applicant’s application for the Retention Order.

53.There be a costs order nisi that costs of these interpleader proceedings be paid by the Applicant to P forthwith, and those costs be summarily assessed on paper without an oral hearing. Unless there is an application for variation of the costs order nisi by an inter partes summons within 14 days after the handing down of this decision, the costs order nisi shall become absolute without a further order. P has already lodged a statement of costs for summary assessment. There be leave to the Applicant to lodge and serve a list of objections (limited to 3 pages) within 7 days after the costs order nisi becoming absolute.

54.Lastly, it remains for me to thank all counsel for the helpful assistance rendered to the Court.

Mr Jun Lee, instructed by MinterEllison LLP, for the Applicant

Mr Byron Chiu, instructed by Joseph Li & Co., for the Plaintiff

Mr Enoch Fong, instructed by So, Lung & Associates for the 1^st to 4^th Defendants

Lo & Lo for the 5^th Defendant, attendance be excused