Nanyang Commercial Bank Trustee Ltd and Another v. John Ku, Tam & Ho (A Firm)

FAMV No. 37 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.37 OF 2011 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 234 OF 2010)

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Between

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Before: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 27 March 2012

Date of Determination: 27 March 2012

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DETERMINATION

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Mr Justice Ribeiro PJ :

1.The plaintiffs (who are the applicants) brought proceedings against the defendant firm alleging that it had converted certain notarial certificates issued by the 2nd applicant.  Interlocutory judgment was obtained in default of defence and Master K Lo assessed damages in the sums of HK$905,957 and HK$4,529,785 in favour of the 1^st and 2nd applicants respectively.[1] Those sums were based on the 2nd applicant’s scale of notarial fees calculated by reference to the value of the estate in relation to which notarial certificates have been issued.  The Court of Appeal,[2] however, allowed the respondents’ appeal and set aside the assessment.

2.The applicants seek leave on the basis that questions of great general or public importance arise relating to the principles applicable to assessing damages for conversion; questions relating to the duties and nature of the office of the Probate Registry and also on the “or otherwise” ground.

3.The Court of Appeal allowed the appeal on two principal grounds, both of them relating to the peculiar facts of the case. First, it held (on the basis of Yam J’s judgment in an earlier probate action[3]) that the value of the estate to which the 2nd applicant’s claims related was about $6 million, representing the residue after taking account of a gift made by the deceased donatio mortis causa.  Since the applicants had already received $5,435,742, there was no room for any additional award of damages.[4] 

4.Secondly, on its analysis of the facts, the Court of Appeal held that the Probate Registry had not acted on the basis of the notarial certificates in issuing letters of administration to the trustee. The Court of Appeal held that such certificates were never required since Yam J had already appointed the trustee as administrator of the estate and trustee of the assets passing under the donatio mortis causa.  The Probate Registry’s withdrawal of its requisition reflected its recognition of the correct legal position.

5.In our view, these are issues which are specific to the unusual facts of the present case.  They raise no questions of great general or public importance.  Nor do we see any basis for granting leave on the exceptional “or otherwise” ground.  We would also mention that we consider the Court of Appeal’s judgment to be plainly correct.  We therefore dismiss this application with costs and also award the respondents the costs of the application for leave in the Court of Appeal.

Mr Jat Sew-Tong SC and Mr Anson Wong (instructed by Liu, Chan & Lam) for the applicants

Mr Edward Chan SC and Ms Joyce Chan (instructed by John Ku & Co) for the respondent