Yu Yuk Ying v. The Hong Kong Tin Tak Shing Kau Chung Woo Ching Sai Association Ltd

HCA003021/2000

HCA3021/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. HCA3021 OF 2000

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Coram: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 28 April 2003

Date of Ruling: 28 April 2003

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R U L I N G

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1.I have before me a summons by the defendant which invites me to set down for trial as a preliminary issue the question of whether the plaintiff is in fact the appropriate person to bring this action which comes about in this way:

2.The case on the plaintiff's behalf is that her father, who since 1971 had lived at the premises which are the subject matter of this action, together with members of his family, had by virtue of continuous residence there till 1991 had by then acquired a possessory title to this property. He died in 1998. The plaintiff herself was born in 1973. She has lived there all her life and following her father's death, it has been decided amongst the surviving members of the deceased's family, including his widow who still lives there and the plaintiff's other brothers and sisters, that she should, as it were, take charge of this particular matter.

3.Miss Hui says that the appropriate plaintiff, given that factual background, simply cannot be the plaintiff in her own right. If the contention is correct that the late Mr Yu acquired a possessory title, that title then would have passed under the terms of his will, if he had made one, or on intestacy, to his beneficiaries. She draws attention to Order 15 Rule 15 of the Rules of the High Court which would allow the action to survive, that is to say if Miss Hui is right about this, by the simple device of an amendment to the title and to the prayer of the statement of claim to make clear that the plaintiff is bringing a representative action on behalf of the estate of her late father. Mr Wan says that this is unnecessary. He is not minded to accede to that invitation and he is content to contest this matter on the basis of the present pleadings.

4.But Miss Hui then correctly points out that I have the power, acting of my own motion, to make those amendments myself if I thought that met the justice of the case and the circumstances of the matter as properly presented to me. In those circumstances, it seems to me that this application is an entirely pointless exercise. If I were to set the matter down for trial as a preliminary issue, and if I came to the view that there was something in the defendant's case that the plaintiff was not the appropriate plaintiff, I could still, if I thought that was right, save the day for the plaintiff by directing the appropriate amendments to be made to the statement of claim and so in those circumstances it seems to me that, with great respect to Miss Hui, this particular summons is a complete waste of time. The matter should proceed to trial on its merits where this point, amongst the many others that have been raised on the pleadings, can be canvassed through the evidence and in counsel's submissions. So it seems to me that the proper order here is to dismiss the summons and we can now get on with the trial.

5.Summons dismissed with costs.

Representation:

Mr S Wan, instructed by Messrs Wong & Fok, for the Plaintiff

Miss G Hui, instructed by Tai & Co., for the Defendant