Nanyang Commercial Bank Ltd v. The Personal Representative of Vannee Nativivat, Deceased and Another

HCMP 2027/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2027 OF 2011

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D E C I S I O N

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Introduction

1.This is an interpleader application.

Background

2.On 14 October 2011, the plaintiff (“the Bank”) commenced the present originating summons.  Briefly, it was and is a licensed bank in Hong Kong.  In 1995, Ms Vannee Nativivat and Mr Vitoon Nativivat (“the Mother” and “the Son” respectively) opened a joint account with it.

3.In October 2010, the Mother wrote to the Bank alleging that the Son had taken away the account book and requested all the accounts (‘the Accounts”) to be frozen.  The Son also wrote to the Bank twice the next month claiming misunderstanding with the Mother and asking the Bank to freeze the Accounts.

4.Facing with such disputes involving the two joint account holders, the Bank suspended operation of the Accounts.

5.The Mother further went to the Bank in December 2010 claiming that the monies (“the Monies”) in the Accounts belonged to her solely.  About 6 months later, Messrs W K To & Co (“WKT”) wrote to the Bank informing that the Mother (hereinafter “the Deceased”) had passed away in Thailand, leaving a Will. They claimed again that the Monies belonged to the Deceased and the same should not pass onto the Son by survivorship.  Later, WKT confirmed that they had instructions to act for the executors of the Will/the personal representatives (“the PR”) of the Deceased.

6.At about the same time, the Son also instructed his solicitors, Messrs Alvan Liu & Partners (“ALP”) to claim the Monies in the capacity as the sole remaining beneficial owner of the Accounts.

7.In light of the development, the Bank proposed an interpleader  by consent so that the Monies could be paid into the Court.  WKT agreed to it but not ALP.  It therefore led to the present application and hearing before me on 27 April 2012.  All parties were represented by Counsel. Mr. Bernard Man, Mr. Alfred Liang and Mr. Jose Antonio Maurellet acted for the Bank, the PR and the Son respectively.

Preliminary matters

8.Apart from the interpleader, there were 2 summonses taken out by the PR, on 27 March 2012 and 18 April 2012 respectively, before me.  By the summonses, WKT sought to adduce the legal opinion from a Thai Counsel, explaining the locus of the PR towards the estate (“the Estate”) of the Deceased.

9.At the hearing, I allowed the summonses on a de bene esse basis. Now, after thought, I will confirm such ruling.

(a)  The locus must be a relevant issue as between the PR/the Estate and the Son.

(b)  The summonses are late, but not too late, especially in the sense that it is only an interpleader before me, as distinguished from an action between the PR/the Estate and the Son.

(c)  Costs are sufficient to compensate the prejudice suffered by the innocent parties.

Decision

10.Coming back to the interpleader, upon consideration of all the evidence authorities and submissions, I have come to the decision that the application of the Bank is to be allowed.

11.Paragraph 17/0/2 of the HKCP 2012 at page 363 sets out the nature of an interpleader and its requirements.

“Interpleader is a proceeding by which a person, from whom two or more persons claim the same property or debt, and who does not himself claim the property or dispute the debt, can protect himself from legal proceedings by calling upon the two claimants to interplead, that is to say, claim against one another, so that the title to the property or debt may be decided by the court.

It is a prerequisite to the right to interplead that the intended interpleader: (a) has no interest in the property the subject matter of the dispute; (b) did not collude with any of those claiming the subject property; and (c) is willing to dispose of the property as the court might direct ……”

12.The facts of the present case simply fall squarely within the above paragraphs. The Bank is holding the Monies in the Accounts.  There have been disputes between the two joint account owners as to the beneficial owners of the Monies. The Deceased passed away but the PR continued with her case.  Nonetheless, the Son relied on the concept of survivorship and further challenged the locus of the PR.  The Bank refused to take side or to make a decision itself and hence, ask for an excuse from the conflicting claims and directions from the Court.

13.When the PR tried to persuade me to accept that they did have the locus of bring proceedings and that the Monies belonged to the Deceased, they agreed to the Bank’s suggestion in principle.

14.On the other hand, the Son argued otherwise.  The Monies should go to him and the PR had no locus to represent the Estate. Either the Bank or this Court should decide the matter summarily in favour of him.

15.It suffices for me to conclude that the disputes between the Son and the PR could not be resolved summarily before me.  Further, I also find the following remarks made by Mr. Man agreeable.

“3. In the present case:

(1) The Deceased herself had made a claim to the contents of the Accounts before her demise, to the effect that they monies were all hers, and D2’s name was added for convenience only: ……

(2) That claim, if made good, would mean that the monies beneficially belonged to the Deceased: Lewin on Trusts (18^th ed., 2008) …… §9-85 – §9-90. P had express notice of such a claim. If that claim was good, and P still paid out, then P would be liable to the Deceased’s estate: Arroso v Coutts ……

(3) WKT (a well know firm of solicitors in Hong Kong) had stated that they had authority to act for the Estate of the Deceased; and had made a claim to the contents of the Accounts.

(4) Despite the lack of a Hong Kong grant, such a grant would generally follow as a matter of course after a Thai grant: Chao Yue Wah v Mo & Company …… (Deputy High Court Judge A Ho SC).

(5) On the authority cited by D2, the lack of a Hong Kong grant does not prevent foreign executors from seeking interim relief in Hong Kong, which would include an interlocutory injunction (which WKT had threatened …… P was perfectly entitled to expect that WKT would take all necessary steps to enable themselves to protect what they saw as the interests of the Deceased’s estate.

(6) Further, given that an executor’s title is derived from the will, an executor under a foreign will can commence an action in Hong Kong. Even where the entitlement to a foreign grant is disputed, the action will not be dismissed, and would at most be stayed pending the resolution of the probate dispute in the foreign jurisdiction. See Williams, Sunnucks & Mortimer §§8-02, 8-07 (D1’s authorities item 3); Re Honeycool Refrigeration (D1’s authorities item 4) §11 (Kwan J); Redwood Music Limited v B Feldman & Co Ltd ……; Chao Yue Wah v Mo & Company (Hong Kong) Ltd (D’s authorities item 6) §19 (Deputy High Court Judge A Ho SC).

(7)   ……”

(Mr. Man’s Supplemental Submission)

Costs

16.As to costs, I am of the view that the application and the hearing were necessitated or largely necessitated by the stance taken by the Son.  He should be responsible for the costs of the Bank.

Conclusion

17.To conclude, I will order that:

(a)  The sum of (i) HK$564,933.55, (ii) HK$240,374.73, (iii) HK$109,689.10, (iv) US$10,160.52 and (v) US$462,003.63 together with any interest accrued thereon from 29June 2011 (“the Monies”) be paid into court within 7 days from the date hereof.

(b)  Subject to such further or other order as may be made by this court, the Monies so paid into court by the plaintiff do remain with the court pending the final determination on the entitlement of the Monies between the 1^st and 2^nd defendant.

(c)  The plaintiff’s costs of this application including all costs reserved and Certificate of Counsel for hearing on 27 April 2012 be to the plaintiff and borne by the 2^nd defendant, to be summarily assessed by me on papers, if not agreed.  There will be no order as to costs between the 1^st and 2^nd defendant.

(d)  For the purpose of the assessment of costs, the plaintiff will lodge and serve its statement of costs within 7 days.  Upon receipt of the same, the 2^nd defendant will also lodge and serve his comment 7 days thereafter.

(e)  As to how the entitlement of the Monies between the 1^st and the 2^nd defendant is to be resolved, they should agree with further directions and submit the same for my approval within 21 days, failing which, the matter should be resumed before me for 1 hour.

Mr. B Man instructed by Messrs Tsang, Chan & Wong for the plaintiff.

Mr. A Liang instructed by Messrs W K To & Co for the 1^st defendant.

Mr. J Maurellet instructed by Messrs Alvan Liu & Partners for the 2^nd defendant.