Yu Jing Jenn v. Wong Pe Wun and Others

HCAP000002A/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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BETWEEN

Coram: Hon. Liu J. in Chambers

Date of Hearing: 28th October 1986

Date of delivery of judgment: 28th October 1986

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JUDGMENT

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1. This is a somewhat unusual application. The plaintiff is a beneficiary of an estate of which the 1st defendant is the personal representative. The 2nd and the 3rd defendants are co-beneficiaries. The 1st defendant, herself is also a beneficiary.

2. The deceased died intestate, and it is suggested that as the surviving widow, the 1st defendant would be entitled to half of the estate, with the remaining moiety to be shared among the other beneficiaries. Allegedly, relationship between the 1st defendant and the plaintiff had been tranquil until the sudden illness of the deceased. On behalf of the plaintiff, a multitude of allegations have been raised against the 1st defendant. It is said that personally as well as qua personal representative the 1st defendant has been less than frank and honest with the plaintiff. It is also alleged that the lst defendant has misled the Hong Kong and Macau authorities. Counsel for the plaintiff makes great play of the manner in which the property in question was allegedly disposed of in haste. Counsel strongly criticizes the discrepancy in the quantum of rental recited in the Agreement for Sale and Purchase signed with a purchaser by the lst defendant as administratrix.

3. This action by the plaintiff is against the defendants for an account and for proper administration. Presumably, the relief is directed at the lst defendant in her capacity as personal representative, as indeed the lst defendant was then the only defendant in the writ of summons issued on the lst May 1986. Apparently, the other defendants have since been joined.

4. On the 7th of October, an ex parte interim injunction was granted in favour of the plaintiff against the 1st defendant, to the effect that she, the lst defendant, either by herself, her agents or servants or any of them or otherwise howsoever, be restrained from disposing of the premises at No. 9A Broom Road, 3rd floor together with carparks 3 & 4. The ex parte order was to remain in force until the hearing of an inter parte summons to be issued, which was returned before a Deputy Judge. An adjournment was sought and granted for the filing of further affidavits. Hence, the parties come before me today.

5. For the purposes of the instant application, I am prepared to assume that there is prima facie evidence of misconduct and bad faith on the part of the lst defendant. But the bare fact remains that the purchaser has not been joined. Moreover, it has been conceded by counsel for the plaintiff that there is not a shred of evidence of impropriety or irregularity against the purchaser.

6. After the issuance of the writ, it was duly registered. Bearing in mind the narrow scope of relief sought in the prayer, it is understandable that the purchaser was prepared to and did enter into an Agreement for Sale and Purchase with the 1st defendant for the premises in question. The sale price is $1.2 m. There is an allegation that market value should be $1.35 m, but Mr. Ismail, counsel for the 1st defendant, hastens to highlight a point categorically made in the valuation report that the value was assessed on the basis of the premises not being saddled with any sitting tenant. The purchaser has resided and is still residing in No. 9A Broom Road, 3rd floor.

7. The ex parte injunction granted, if allowed to continue, would materially affect the interest of the purchaser. Completion of the Agreement for Sale and Purchase has been, I am told, extended to the 30th of October. Not only is counsel for the plaintiff not in a position to make any allegations against the purchaser, it has not been sought to have him joined. Nor, to all intents and purposes, has he been given notice of the injunction granted ex parte on the 7th October. I can find no justification whatsoever, as the situation now stands, to have the right of the purchaser under the Agreement for Sale and Purchase, in any way, prejudiced, particularly in his absence. Furthermore, in all other respects the plaintiff would seem to be adequately protected by the registration of his writ as a lis pendens. There is no valid ground whereby the proposed continuance of this injunction can be supported.

8. I am driven to the conclusion that the interim injunction granted must be discharged. The 1st defendant has offered to undertake not to dispose of any part of the residual estate until further order. That undertaking, the premises in question excepted, appears to be agreeable to the plaintiff. In the circumstances, the injunction is discharged, and I record the undertaking of the 1st defendant given through her counsel that she, either by herself, her agents or servants or any of them or otherwise howsoever, will not dispose of any part of the estate of the deceased intestate, with the exception of No. 9A Broom Road, 3rd floor together with car parking spaces 3 and 4, until further order. Such undertaking is to be given, of course, against the usual cross-undertaking as to damages by counsel acting for the plaintiff. I propose to order costs before the Deputy Judge as well as costs before Mr. Justice Barnes to be costs in the cause and costs of today's appearance to be costs in favour of the lst defendant against the plaintiff.

Decision on Costs

I have listened to submissions of both counsel on the question of costs. The ex parte application before Mr. Justice Barnes ought to carry costs in the cause in view of the serious allegations made against the lst defendant when circumstances were far from being clear. The appearance before the Deputy Judge attracted an order that costs of the adjournment to be costs in the cause of the summons. The case of each of the parties to this action was still not entirely crystallised before the learned Deputy Judge. Now that the ex parte injunction has been discharged, but a protection in the form of an undertaking has been offered and accepted. In all fairness, it cannot be said that the plaintiff's summons has wholly failed. It would be appropriate in my view, that costs ex parte before Mr. Justice Barnes, inter partes before the Deputy Judge, resulting in an adjournment for further affidavits to be filed, should be costs in the cause. As counsel for the 1st defendant has made his stance plain to the plaintiff from start to finish as far as today's application is concerned, costs of today should be costs against the plaintiff in favour of the 1st defendant. I order:-

1.    Injunction be discharged;

2.    Undertaking of the lst defendant and cross-undertaking of the plaintiff be recorded;

3.    Costs before the Deputy Judge and Mr. Justice Barnes be costs in the cause; and

4.    Costs of today be costs against the plaintiff in favour of the 1st defendant.

Representation:

Ms. H.C. Wong (inst'd by M/S S.H. Chan) for the plaintiff

Mr. Ismail (inst'd by M/S John Ip & Co.) for the defendant