Hor Yon Toy and Others v. Tsui Siu Hing and Others

HCMP 37/1979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 37 OF 1979

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BETWEEN

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Before: Deputy High Court Judge Carlson, in Chambers

Date of Hearing: 8 November 2004

Date of Ruling: 8 November 2004

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R U L I N G

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1.The winding-up of this estate is assuming record-breaking proportions when I observe that the deceased in this matter died in 1953, leaving a very modest estate.  Over half a century has elapsed and the matter remains in abeyance.

2.The parties here, who are his daughters by different women, were young schoolgirls when their father died in 1953.  They are now ladies, if I may say so, of at least middle age.

3.The application before me is one that is made under section 36 of the Probate and Administration Ordinance for the appointment of an administrator of an intestate’s estate, and I have a discretion in such a matter to appoint such person as I consider to be fit to be such an administrator.

4.The history of the matter for these purposes can be stated shortly, although it does have a rather sad and, at times, complicated history.  These proceedings started in 1979 when it had become clear that an impasse had been reached between the parties so far as the administration of the estate was concerned.

5.In 1981, there was agreement, and that was endorsed and forms part of an order made by Rhind J.  Part of that order was that the administration should be in the hands of both sides, with representatives from the Plaintiffs’ side and representatives from the Defendants’ side.  Unfortunately, that agreement was not implemented for a number of reasons which I need not set out here.

6.There was then another attempt at settling the matter.  The parties went before Rhind J nine years later in 1990 and he made a subsequent order.

7.For most of the time, the mechanics of all of this was dealt with by the 1^st and 2^nd Plaintiffs.  The 1^st Plaintiff then died, leaving the matter very much in the hands of the 2^nd Plaintiff.

8.Approaches had been made to resolve the matter.  The Probate Registry did not feel able to allow the matter to proceed in the way that was being suggested to it, and I need not refer to that any further, save to observe that it is most unfortunate that this was not allowed to happen because if it did, I do not expect we would be here today.

9.The matter has continued in this way, drifting along, and I have seen correspondence in 2001 where the solicitors for the Defendants were perfectly naturally writing, making inquiries of the then solicitors for the Plaintiffs, as to what was happening to the winding-up of the estate.

10.It is clear from that correspondence that the matter was being left very much in the hands of the 2^nd Plaintiff and of her brother, the 3^rd Plaintiff, although it is right to say that the 3^rd Plaintiff was content to leave things to be done by the 2^nd Plaintiff his elder sister.

11.And it is only now, at the very last moment, that the Defendants, on realising that the matter was coming to a head, wrote to the court, indicating objections to the administration of the estate going into the hands of the 2^nd Plaintiff alone.

12.When one looks at the most recent affirmation - and it is a very recent affirmation - by the 2^nd Plaintiff, it did not appear that she was expecting any sort of objection, really having regard to the nature of the correspondence in 2001 and the early part of 2002.  But, of course, objection there now is and this is why I am having to resolve this matter.

13.On behalf of the 2^nd and 3^rd Plaintiffs, Mr Li submits that it is a far more efficient way of dealing with this estate if I were to appoint the 2^nd Plaintiff to administer it.  If I thought it right, I could also appoint her brother, the 3^rd Plaintiff, but he has indicated that he is content to leave the matter in the hands of the 2^nd Plaintiff.

14.On the other side of the argument, Mr Huang has put the matter extremely moderately and very persuasively.  He points to the fact that the whole intention of the orders made Rhind J in 1981 and 1990 which were, of course, orders by consent, was that the estate of the parties’ late father was going to be dealt with by both sides.  There is much to be said for that argument.

15.Nevertheless, Mr Li, in my view, rightly points to the fact that time has moved on.  The original order was made 23 years ago, the second order, 14 years ago, and much has happened and, in particular, the running has been allowed to be made entirely by the 2^nd Plaintiff before that and by the 1^st Plaintiff when she was alive.  And now, at the very last moment, this objection is taken with the result that Mr Li’s clients have had to come to court to seek the order that they now are asking me to make.

16.It is quite clear that there is suspicion on both sides.  Particularly the Defendants are very suspicious of the motives of the 2^nd Plaintiff and her brother, and they fear that if the 2^nd Plaintiff were allowed to administer this estate on her own she may well - to put it informally - short-change the Defendants in respect of the administration.

17.For instance, when one looks at one of the properties here, probably the most valuable property which comprises this estate, a shop at Cheung Chau, there had recently been a lease of it to the Dairy Farm Company for two years at a rental of $45,000 a month and none of this has been accounted for and, of course, it will need to be accounted for when the estate is wound up.

18.Mr Li seeks to allay those fears by offering security which he says would more than cover the value of the Defendants’ interests in this estate.  There has been no recent valuation of the properties.  In 1996, there was a valuation, which is in the papers, when the value of the estate was something of the order of $7 million or so and, of course, since then property prices have gone up and they have also collapsed, although there has been a recent recovery.  I have no reliable valuation but it is probably fair to say, as a rough guide, that the values are approximately the same.

19.I have come to the decision that the 2^nd Plaintiff is a person that I consider to be fit to be the administrator.  I am going to direct that she can act alone, without joining anybody else in the administration.

20.My main reason for this is that she has had the conduct of this matter now for a number of years, and when one looks at the correspondence in 2001, it is quite clear that the Defendants were content that this should be allowed to continue, and I have seen nothing here which really would cause a well-informed person from a neutral stand-point to consider that anything has changed.

21.There are going to be suspicions but the courts are here to protect the beneficiaries.  If they feel that the administration is not being done properly, then they can always come and complain about it, and I am going to require Mr Li’s clients to provide security in the way that he has suggested in the course of the argument and I shall ask him to perhaps say more about that in a moment.

22.What I am concerned about - and both ladies are here in court - is that this matter should be allowed to be brought to a conclusion as soon as possible.  More and more of the estate is being dissipated on lawyers’ fees, and these ladies really do owe it to the memory of their father to allow this matter now to be dealt with as quickly as possible.

23.The solicitors on both sides are very expert.  The solicitors on behalf of the 2^nd Plaintiff will, I know, advise her as to how to go forward.  The Defendants’ solicitors can always, if they are instructed to, look at the matter on behalf of the Defendants to make sure that everything is being done properly but I very much hope that this can now proceed.

24.This is the order that I make.

Mr Li Chau-yuen, instructed by Messrs Iu, Lai & Li for the 2^nd and 3^rd Plaintiffs

Mr Lester Huang, of P C Woo & Co., for the 1st, 2^nd and 3^rd Defendants