Richard Sellett and Others v. George Sellett

HCMP000654/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon. Jones, J. in Chambers

Date of hearing: 1st May 1987

Date of delivery of judgment: 12th May 1987

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JUDGMENT

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1. Richard Sellett (1st applicant) is the only son of George Sellett (the respondent). The respondent is now aged 88. The 1st applicant was born in New York in 1943 and resides in Madison, Connecticut, United States. According to the 1st applicant his parents were divorced shortly after his birth and his father has not since remarried. The respondent who is a United States national has Lived in the Far East for many years. From about 1924 he lived and practised in Shanghai as a United States Attorney until the communist take over, when he came to Hong Kong. He remained in Hong Kong until February 1985 when he was taken to the United States.

2. In about 1968 a five year old girl named Mei Mei began to live with the respondent. Since that time the respondent has been responsible for her care, maintenance and education and later she adopted the respondent's surname and is now known as Carolyn Sellett (4th applicant). The respondent subsequently took steps to formally adopt the 4th applicant, but these arrangements eventually fell through.

3. In March 1982, the respondent received a blow on the head during a robbery at his home in Tai Po. As a result of the injuries that he suffered his mental faculties were affected. Later they deteriorated to such an extent that in January 1983 the 4th applicant wrote from Hong Kong to the 1st applicant in the United States seeking his helps. Following this letter the 1st applicant came to Hong Kong where medical advice was obtained to the effect that the respondent was incapable of looking after his affairs. Accordingly upon the application of the 1st applicant an order was made by Rhind, J. on the 29th March 1983 for the Hongkong Bank Trustee Limited (the 2nd applicant) to be appointed as interim receiver and manager of the estate with orders for inquiries to be made as to whether the respondent was of unsound mind and incapable of managing himself and his affairs and as to the nature of his property. In April 1983, the respondent was admitted as a patient to the Castle Peak Mental Hospitals

4. On the 10th February 1984, upon a further application made by the 1st applicant, I made an order that the 2nd applicant be appointed as the receiver of the respondent's estate together with an order for the provision of maintenance for the 4th applicant.

5. At the beginning of 1985, Thomas Sellett (3rd applicant), a nephew of the respondent who was a practising surgeon at the Community General Hospital, Sterling, Illinois and the Morrison Community Hospital, Morrison, Illinois, visited Hong Kong to see the respondent. Having seen the respondent he came to the conclusion that he would receive better treatment in the United States so with the agreement of the 1st applicant he arranged for him to leave Castle Peak Hospital and for his transfer to the Community General Hospital, Sterling and later to the Morrison Community Hospitals. The respondent since that time has continued to receive treatment at the Morrison Community Hospital where he will almost certainly remain for the rest of his life. Although the 4th applicant preferred the respondent to remain in Hong Kong she conceded that he would probably receive better treatment in the United States,

6. On the 30th April 1985, the 3rd applicant was appointed by an order of the Circuit Court of the 14th Judicial Circuit Whiteside County, Illinois as the Plenary Guardian of the person of the respondent.

7. The 3rd and 4th applicants were added as parties to the proceedings by an order that I made on the 7th November 1985.

8. By a summons issued on the 9th November 1985, the 1st and 3rd applicants made an application, inter alia, for the appointment of a receiver in the United States. When the summons came before me on the 29th November 1985 the 4th applicant opposed the application with the result that the summons was adjourned to a date to be fixed. At that hearing the Official Solicitor was appointed to represent the interests of the respondent.

9. However, as no steps were taken to restore the summons for hearing, a summons was issued on the 2nd December 1986 on behalf of the 4th applicant which is now before me to dismiss the summons of the 1st and 3rd applicants for want of prosecution on the grounds of inordinate and inexcusable delay together with costs. The 1st and 3rd applicants consent to the dismissal of their summons, but oppose the application for costs contending that they should be paid out of the estate of the respondent. The summons issued by the 1st and 3rd applicants has not been pursued, as they consider that by continuing the proceedings the resources of the respondent will be unnecessarily depleted.

10. It is clear that the removal of the respondent to the United States was in his best interests. No improper motives have been alleged against the 1st or the 3rd applicants for taking these steps whilst the 3rd applicant has no interest in the estate of the respondent, and does not in any way stand to benefit as a result of the actions that he has taken.

11. The 4th applicant who is now aged 23 does not possess a birth certificate nor a passport, and has so far been unable to obtain permission to visit the United States in order to see the respondent. She opposed the transfer of the receivership from Hong Kong to the United States on the grounds that it is more convenient for her to have the 2nd applicant in Hong Kong to deal with her affairs.

12. I am not required to make a decision as to whether the receivership of the estate should be transferred from Hong Kong to the United States, but I have evidence that the present receiver has not encountered difficulties in continuing to administer the estate since the removal of the respondent although there is evidence that it may be less expensive if a receiver is appointed in the United States.

13. It has been submitted on behalf of the 4th applicant, supported by the 2nd applicant and the Official Solicitor for the respondent that the proceeding relating to the application for the transfer of the receivership would have been unnecessary if the solicitors for the 1st and 3rd applicants had made enquiries from the 4th applicant for her views before the issue of the summons. However, it was claimed that they were unable to contact the 4th applicant because they had no means of ascertaining her whereabouts. Criticism has also been levelled at the failure to abandon the application at an earlier date. In considering these complaints it must be borne in mind that instructions had to be obtained by the solicitors in Hong Kong from the 1st and 3rd applicants in the United States whilst the 4th applicant's summons could have been issued earlier. In any event, I do not consider that the delay would have appreciably increased the costs.

14. It is not in dispute that the Court has a discretion to appoint a receiver in the United States in place of the Hong Kong receiver. Mrs Clough who appeared on behalf of the 4th applicant submitted that although a receiver appointed in the United States may be cheaper, there was no evidence before the Court to support this contention. Further, she said that a material factor to be taken into consideration would be the 4th applicant's inability to visit the United States, and her good personal relationship with the 2nd applicant in Hong Kong. Finally, she argued that there was no suggestion that the present receivership is inconvenient for any of the parties.

15. Mrs Spruce who appeared on behalf of the 1st and 3rd applicants submitted that the summons issued on the 9th November 1985 had been issued on reasonable grounds prompted by a desire to protect the person and property of the respondent and the summons has been pursued in a reasonable way without undue delay.

16. In applications of this nature, the Court has a discretionary power to award costs in accordance with what appears to be right, see In re Cathcart⁽¹⁾. At page 471 Lord Halsbury explained the principles of an award thus :-

"The theory upon which proceedings in Lunacy are taken is, that the proceedings are for the benefit and protection of the persons who are believed to be incapable, by reason of mental infirmity, of protecting themselves and the property. The principle, therefore, applicable to a litigant who has failed in his litigation is not even prima facie applicable to a petitioner who asks for the protection of the law in favour of one requiring the law's protection."

Later on page 472, he had this to say :

"It seems to me that if the demand for inquiry is really prompted by a desire to protect the person and property of the alleged lunatic, and is ,presented on reasonable grounds and in a reasonable manner, the expense of such a proceeding ought not to fall upon the person so invoking the aid of the law to protect those in need of protection."

17. Mrs Clough in her submission, sought to draw a distinction between In re Cathcart⁽¹⁾ where it was necessary to appoint a receiver for the protection of the respondent's assets, to the instant case where a receiver had already been appointed. The application for the appointment of a receiver in the United States was not made on the grounds that the present receiver was not carrying out his duties properly and efficiently, but for administrative convenience. Mrs Clough therefore asserts that the Court must be satisfied that such application was in the interests of all the parties before the Court makes an order for costs to be paid out of the estate.

18. However, by reason of the removal of the respondent to the United States where most of his relatives live, where the bulk of his estate is situate and the order appointing the 3rd applicant as Plenary Guardian, the application was a perfectly proper and sensible one to make. There is no evidence to show that either the 1st or the 3rd applicants acted unreasonably in making their application. No doubt the opposition of the 4th applicant came as a surprise. Her opposition as I have said has been purely on the basis of convenience and her relationship with the 2nd applicants. Nevertheless, I cannot envisage that it would have caused any real inconvenience if the receivership had been transferred to the United States.

19. I am therefore quite satisfied that the steps taken by the 1st and 3rd applicants were reasonable and were in the best interests of the respondent and the other parties to the application. Indeed even where an application is opposed successfully, the applicant's costs may still be allowed out of a patient's estate. I would adopt those principles in this case for if the application had failed I consider that the same order should have been made. Accordingly I shall make an order that the summons of the 1st and 3rd applicants be dismissed, but that the costs incurred be paid out of the estate of the respondent.

(1)    [1893] 1 Ch. 466

Representation:

Mrs J. Spruce (Baker & McKenzie) for the 1st and 3rd Applicants

Mr R. Luk (Johnson, Stokes & Master) for the 2nd Applicant

Mrs M. Clough (Deacons) for the 4th Applicant

Miss G. McFarlane (Official Solicitor) for the Respondent