Choy Po Chun and Another v. Au Wing Lun

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2010

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BETWEEN

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Coram : Before Master Levy in Chambers

Date of Hearing : 27 May 2010

Date of Ruling : 27 May 2010

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R U L I N G

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1.On 6 May 2010, I handed down a decision in relation to the application by the Plaintiff for the appointment of an administrator pendente lite.

2.I ruled that Hang Seng Bank (Trustee) Limited (“HS Trustee”) is to be appointed upon the Plaintiff filing and serving further documents, namely a confirmation that HS Trustee is a trust corporation and that there is a written consent to act.

3.These directions have been complied with.  I therefore make an order that HS Trustee be appointed as administrator pending the probate action.

4.So far as powers to be given to HS Trustee are concerned, initially and in fact, during the course of the application – both parties have asked or agreed that a general power was to be granted to the administrator.  I adjourned this issue for further submissions today because I note in paragraph 32 of the affidavit of Choy Po Chun in support of this application, she had deposed that the administrator pending probate action is for the purpose of, I quote, “for collecting and receiving the rents of all landed properties of the deceased”.

5.Given the said evidence of Madam Choy, I did not feel entirely comfortable to make an order granting general power to the administrator without receiving further submission from the parties.

6.Counsel for the Plaintiff today asked the court to allow HS Trustee to have power to deal with administration concerning the deceased’s landed properties.  Additionally, he has also asked the court to grant a power to the administrator to deal with the large amount of the deceased’s shares.

7.The Defendant, on the other hand, through his skeleton submission as well as the submission this morning has asked me to grant general power to HS Trustee.

8.The provision governing powers of the administrator pending probate action can be found in S.40 of the Probate and Administration Ordinance, Cap.10 (“PAO”).  S.40(2), PAO, reads as follows:

“An administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate.”

9.However, S.40 (3), PAO, provides also that:

“Every such administrator shall be subject to the immediate control of the court and act under its direction.”

10.I have given this matter very careful consideration.  I think that if there are circumstances that justify limitation of power under S.40(3), PAO, the court would certainly has discretion to limit the powers to be given to an appointed administrator.

11.So far as this case is concerned, there are several matters that I have taken into account in deciding what power should be granted to the HS Trustee.

12.First, I note that the Plaintiff today, through their counsel, has asked me to grant additional power other than what they had originally asked for in their application, which is only for collecting and receiving rent in relation to land matters.  They have now also asked me to allow HS Trustee to have power to deal with shares belonging to the estate. 

13.I have also taken into consideration the objections by Mr. Au, the Defendant.  I note in particular during the course of the proceedings that the relationship between the parties is not entirely harmonious.  On the contrary, I observe, as I did in my written judgment, that the parties’ relationship is extremely acrimonious.

14.If I were to limit the powers of HS Trustee, I am concerned that the administrator may – as a result of the limitation imposed by the court - in the course of its administration of the estate pending the probate action, need to from time to time ask the court to give directions to clarify as to what it can or cannot do.

15.For the foregoing reasons, I come to the view that perhaps the best and the most suitable power to be granted to HS Trustee should be the power as provided in S.40(2), PAO, i.e., the rights and powers of a general administrator, and I so order.

16.So far as the filing of the account is concerned, the parties have agreed that the HS Trustee is to file the first report upon the issuance of the grant, and thereafter a report every three months.

17.Regarding remuneration, both parties agree that HS Trustee can charge reasonable administration from the estate. 

18.I therefore make the above orders.

(Submission re costs)

19.The reason why the application needed to be instituted, as the application suggests, is that an administrator pending probate action is required to be appointed, without the present disputed action this application would not have been necessary.

20.I think in the circumstances, a fair costs order, in my view, should be costs in the cause of the probate action.

(Submission re certificate for counsel)

21.I further think this is a fit case to certify the attendance of counsel, and therefore grant a certificate for counsel.

Mr. Kevin Hon instructed by Messrs Gloria Chan & Co for the 1^st and 2^nd Plaintiffs.

The Defendant, Mr. Au Wing Lun also known as Au Wing Lun William, appearing in person.