Re Yam Wong Tak

Case No.HCAP 406/1975

Court

High Court CFI

Date29 Sep 1975

Judge—

Case Document

100%Judiciary

HCAP000406/1975

IN THE SUPREME COURT OF HONG KONG

(PROBATE JURISIDCTION)

MISCELLANEOUS PROCEEDINGS NO. 406 OF 1975

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	IN THE MATTER of the estate of YAM WONG TAK late of No. 100, Hak Po Street, 3rd floor, Kowloon in the Colony of Hong Kong, Car Repairer, deceased.
	and
	IN THE MATTER of Section 36 of the Probate and Administration Ordinance, Cap. 10.

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Coram: Yang, J. in chambers.

Date of Judgment: 29 September 1975

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JUDGMENT

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1. The applicants were passengers in a car driven by the deceased.

2. The applicants' case is that on 11th December, 1972 the deceased, whilst driving private car AB 9023 along Castle Peak Road on the wrong side of the road, came into collision with a bus coming from the opposite direction and was killed. The two applicants sustained personal injuries in the accident.

3. The deceased was 19 years of age when he died. No application for a grant of Letters of Administration or Probate has been made.

4. The applicants now apply for an Official Administrator to be appointed the administrator of the estate of the deceased so as to enable them to institute proceedings against his estate and against the owner of the private car AB 9023 claiming damages for personal injuries.

5. The application is made under Section 36 of the Probate and Administration Ordinance, Cap. 10, which provides, inter alia, that where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate other than the person who, if this Ordinance had not been passed, would by law have been entitled a grant of administration of such estate, the court may, subject to Section 25 of the Ordinance, appoint such person as the court thinks fit to be such administrator.

6. By a letter dated 12th September, 1975 and in response to a letter from the Legal Aid Department the father of the deceased replied that he had no intention to apply for a grant of Letters of Administration of the estate of the deceased and he had no objection to the appointment of an Official Administrator to be the administrator of the estate of the deceased in order that he might be joined as a defendant.

7. I have been given to understand that similar applications in the past were made under 0.15 r. 15 of the Rules of the Supreme Court which reads:

"	(1)	Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.
	(2)	Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit."

8. Mr. von Pokorny, acting for the applicants, submits that such applications should not have been brought under this Rule. And he draws my attention to the Supreme Court Annual Practice 1973 where it is stated (under paragraph 15/15/2, at page 210) that it seems that this Rule cannot be applied unless there is a valid proceeding. I accept this view, for the opening words of this Rule appear to imply that proceedings have already commenced when the application is made (See Lean v. Alston (1947) K.B. 467, at 470, per Scott L.J.) Unlike Order 15, we are here concerned with a situation where proceedings have not as yet been instituted.

9. Mr. von Pokorny suggests that the application may be brought either under Section 36 of the Probate and Administration Ordinance (supra), or alternatively, under Section 6 of the Supreme Court Ordinance, Cap. 4 and 0.15 r. 6A of the Rules of the Supreme Court of England, of which Hong Kong has no counterpart.

10. Section 6 of the Supreme Court Ordinance provides:

"Subject to the provisions of this Ordinance, the practice of the Supreme Court of Judicature of England for the time being in force therein shall be in force in the court."

0.15 r. 6A provides, inter alia:

"	(1)	Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.
	(2)	Without prejudice to the generality of paragraph (1), an action brought against "the personal representatives of A.B. deceased" shall be treated, for the purposes of that paragraph, as having been brought against his estate.
	(3)	An action purporting to have been commenced against a defendant who has died shall, if the cause of action survives and no grant of probate or administration has been made, be treated as having been brought against his estate in accordance with paragraph (1).
	(4)	In any such action as is referred to in paragraph (1) or (3) -

	(a)	the plaintiff shall, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased's estate for the purpose of the proceedings or, if a grant of probate or administration has been made since the commencement of the action, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person so appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;
	(b)	the Court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon."

11. It would appear from paragraph (4)(a) that at the time that the application is made, proceedings will already have been brought. The reference to the period of validity for the service of the writ or originating summons necessarily implies that a writ or an originating summons has been taken out. For these reasons I do not think it will be appropriate to bring the present application under this Rule, because no proceedings have as yet been instituted. However if this Rules is applicable, and followed, in Hong Kong, the present application will probably be unnecessary, for the plaintiff may then bring the action against "the personal representatives of A.B. deceased" under paragraphs (1) and (2), although there are in fact no such personal representatives (see the Supreme Court Annual Practice 1973, para. 15/6A/2 at page 151), and having brought the action, he may then apply for the appointment of a personal representative for the deceased under paragraph 4(a).

12. In my judgment Section 36 of the Probate and Administration Ordinance (supra) is wide enough to cover the situation now under consideration. The section therefore may be applied when no proceedings are contemplated, e.g. for the purpose of negotiating a settlement in the hope that the cause of action need not be brought before the court.

13. For the reasons stated above I make the order as prayed.

	(T.L. Yang)
	Puisne Judge

Representation: