Chan Kan Wai v. Chan Chiu Tak and Others

HCA008226/2000

HCA8226/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.8226 OF 2000

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Coram: Hon Waung J in Chambers

Date of Hearing: 27 June 2003

Date of Judgment: 27 June 2003

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J U D G M E N T

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1.This is an appeal brought by the defendants against the order made by the master whereby the master ordered further and better particulars to be given to the plaintiff pursuant to the requests set out at page 63 of the bundle in the letter dated 25 October 2002.

2.This case involves the very serious complaint by the plaintiff who was one of the four sons of Chan Kwong who died in 1984 leaving a Will. In the Will each of the four sons was given a quarter of the estate. The eldest son is Chan Chiu Tak, the 1st defendant, I will call Chan Chiu, and he had three sons, the 2nd , 3rd and 4th defendants. All of them have now been sued because it is not in dispute that those three grandsons, i.e. the 2nd, 3rd and 4th defendants, had taken part in the management of the estate together with their father, Chan Chiu, who passed away in February 2000. The estate consisted of both landed property as well as shares. The shares in question consist of some 200 odd shares of Chi On Company Limited of which the plaintiff ought to be entitled to a quarter. The landed property consisted among others a property at 18 Gough Street. These, the shares and the landed property, are now the subject of the two set of requests, one is under paragraph 9 relating to the Gough Street property and the other is under paragraph 16 relating to the shares.

3.The question is to what extent these requests would assist in the fair resolution of the dispute? The request in relation to paragraph 9 of the defence, i.e. in relation to Gough Street, basically seeks to pin and force the defendants to state clearly and publicly by way of pleadings what is their case in relation to the Gough Street property, i.e. to say whether there has been any tenancy agreement, oral or otherwise, and what were the rent received and whether they are covered by rental receipts and to identify those, because there is a clear case by the plaintiff that there had been no distribution of the Gough Street property income whereas the defendants' case is that there had been distribution of everything according to the Will.

4.In relation to the Chi On shares, the dispute requires even more to be clarified by the defendants by way of further and better particulars. That is to say whether the defendants are relying on a case that in October 1987, there had been a distribution of the 51 shares to the plaintiff by way of a share transfer to the plaintiff and further, after that share transfer on 2 October, four days later there was a purported sale by the plaintiff of his 51 shares to the 3rd and 4th defendants in terms of the alleged sale and purchase note with $22,000 and $29,000 being paid by the 3rd and 4th defendants respectively to the plaintiff and if there was such payments, what was the form of these payments and the details of such. Unless and until that is clarified the plaintiff would not be able to come back and reply to allege that these alleged documents, instrument of transfers, sale and purchase notes, were forged, not genuine and that there were never such transactions. So I think it is essential for the fair identification of the issues for the defendants to give these further particulars. I have no doubt that this is the case that ought to go to trial as soon as possible and I have also no doubt that without these particulars the case is not going to go forward smoothly.

5.Mr Chu, for the defendants in his firm submission has referred to the lateness of the application. As far as I am concerned there is no question of lateness. The plaintiff was doing the best he can. If one looks at the way the defendants pleaded it seems to me that it is the manner of the defendants pleading that has caused the delay. Every single piece of information had to be dragged out of the these four defendants and today's hearing is an ample demonstration, that unless forced to, the defendants are not going to give up anything.

6.So, in my judgment the master was completely right in ordering further and better particulars and the appeal of the defendants must be dismissed. I am also proposing to do a gross sum assessment immediately for the costs of the plaintiff for today's appeal because the defendants must be liable for the plaintiff's costs of the appeal.

7.I also propose to give directions as the future progress of the case as I am intending to order that the case be assigned to me and that I would have charge of the case and I would be the trial judge.

Representation:

Mr Raymond Lau, instructed by Messrs Ng & Co., for the Plaintiff

Mr George Chu, instructed by Messrs K.Y. Woo & Co., for the Defendants