Tsoi Hak Kong Herbert v. Kok Wai Chun and Another

HCA 4/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4 OF 2006

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BETWEEN

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Before:  Hon Chung J in Chambers

Date of Hearing: 27 February 2009

Date of Decision: 27 February 2009

Date of Handing Down Reasons for Decision: 4 March 2009

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REASONS FOR DECISION

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Introduction

1.This is the defendants’ application for an order that the third party is to provide further and better particulars of her defence to the third party claim.

2.This application was dismissed after a hearing.  Below are the reasons for the decision.

Background

3.The background leading to this application can be summarized as follows.

4.According to the third party notice, the plaintiff commenced the main action against the defendants as former tenants of a tenancy relating to a shop in Causeway Bay (“the subject shop”).  The tenancy was entered into between them and the late Mr Chu (“the deceased”).  The plaintiff was the administrator of the deceased’s estate.  The third party was the deceased’s lawfully-wedded wife (“the deceased’s wife”).

5.The main action, according to the third party notice, seeks (among other things) payment of the rent in arrears and/or mesne profits by the defendants.

6.While denying their liability in the main action, the defendants allege that the deceased’s wife should indemnify them for any sum payable in the main action.

7.The defendants allege that the deceased’s wife untruthfully represented she was the personal representative of the deceased’s estate and, in that capacity, she untruthfully promised them the rent payable for the subject shop could be reduced.  The defendants say the deceased’s wife has breached her warranty of authority and was guilty of misrepresentation.

Issues in This Application

8.As the defendants fairly accepted at the hearing of this application, the third party claim can be put on one of the following 2 bases:-

(a)  it be established that the deceased’s wife was the personal representative of the deceased’s estate and, in that capacity, she agreed to a reduction of rent;

(b)  it be established that the deceased’s wife was (and is) not the personal representative (but someone else was) and she made the said promise despite the lack of capacity to do so.

In the former case, the defendants say they would be able to successfully defend the main action and establish their counterclaim (for the return of the rent deposit and the like).  In the latter case, they argue they should be entitled to an indemnity because of breach of warranty of authority and misrepresentation on the part of the deceased’s wife.

9.The defendants also fairly accepted that, should they fail to establish either of the above bases, the third party claim would fail.

Request No. 1

10.This request was:-

“State who is/are entitled to a grant of Letters of Administration of the Deceased’s estate in Hong Kong pursuant to [r.] 29(b) of the Non-Contentious Probate Rules Cap. 10A”.

11.R. 29(b), Cap. 10A states:-

“Where the deceased died domiciled outside Hong Kong, the Registrar may order that a grant do issue … to the person entitled to administer the estate by the law of the place where the deceased died domiciled”.

12.A person’s entitlement to administration is thus to be determined according to the law of the place where the deceased person was domiciled at his death.  At least for the purpose of this application, it is accepted the deceased died intestate in Toronto, Canada.

13.It is unknown if Canadian law in this respect is the same as that of Hong Kong.  Assuming, for the sake of discussion that it is, r. 21(1), Cap. 10A provides:-

“Where a person dies wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant to administration in the following order of priority, namely … (i) the surviving spouse … ”.

Thus, if Canadian law is the same as Hong Kong law in this regard, the deceased’s wife would appear to have priority for obtaining a grant to administration.

14.Sufficient particulars of pleading need to be given as regards to matters of fact.  However, request for particulars cannot be made as regards questions of pure law.  This request was directed entirely at a matter of law.

Request No. 2

15.This asked for:-

“(1)  State the reasons put forward by the Defendants [of] HCAP 7 of 2002 [to oppose] the application by [the deceased’s wife] for grant of Letters of Administration …

(2)  State [the stage to which] HCAP 7 of 2002 has reached …

(3)  State … [whether] the parties in HCAP 7 of 2002 [have reached any agreement or settlement] in respect of the grant of Letters of Administration …

(4)  [State] the date on which the said [agreement or settlement] has been reached and [the terms thereof]”.

16.This request appears to arise out of the averments in the defence to the third party claim to the effect that the deceased’s wife and her two sons disagreed as to who should be granted letters of administration.  Consequently, the deceased’s wife commenced HCAP 7/2002 to resolve the dispute, naming the two sons as the defendants therein.

17.The purpose of the above averments is not to rely on the probate action as part of the defence to the third party claim.  Quite on the contrary, it is only to provide a background which leads to the averments that the deceased’s wife never represented to the defendants that she was (and that in fact she was (and is still) not) the person representative.  She further claims she in fact told the defendants she was not the personal representative and had no authority to bind the deceased’s estate.

18.In view of the gist of the case put forth by the deceased’s wife, the particulars sought by this request are immaterial.

Request No. 3

19.This asked for:-

“State the reason for the agreement to be made by the [deceased’s wife] and the Deceased’s Sons”.

20.The “agreement” referred to above concerns the appointment of the plaintiff, a practising solicitor, to act as the administrator pendente lite in this action.

21.The defendants have been unable to explain why this matter should have any relevance to the case put forth by the deceased’s wife in her defence to the third party claim (see para. 8, 17 and 18 above).

Conclusion

22.By reason of the above matters, this application was dismissed.

Other Matters

23.The matters set out below are in addition to those set out above.

24.During the hearing, the defendants argued that the deceased’s wife had confirmed in her witness statement she had made a promise to the defendants to reduce the rent.  But they accepted that they bear the burden of proving the deceased’s wife was (or is) the personal representative of the deceased’s estate.

25.Assuming the argument to be valid, the requests for particulars set out in the summons are nothing more than asking the deceased’s wife to assist the defendants to decide which of the two factual premises set out in para. 8(a) and (b) above ought their case be based on when pursuing the third party claim.

26.This is not a proper reason for ordering a party to provide further and better particulars either.

Mr Jeremy Chan, instructed by Messrs Herbert Tsoi & Partners, for the Plaintiff

Mr Kenneth C L Chan, instructed by Messrs Hau Lau Li & Yeung, for the Defendants

Mr Frederick H F Chan, instructed by Messrs Cheng Wong Lam & Partners, for the Third Party