Wong Shing Chi Johnly v. Wong Wai Ming

HCA 25/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 25 OF 2012

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DECISION

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Introduction

1.There are 2 applications before me.

(a)   The Defendant seeks to set aside (“the setting aside application”) a representation order made by this Court.

(b)   Subject to it, the Plaintiff asks the Defendant for an account (“the account application”) relating to an estate of their deceased mother.

2.Both Counsel for the parties, Mr Simon Wong for the Plaintiff and Mr Lawrence Ngai, for the Defendant, agreed that the setting aside application was to be determined first because the account application would necessarily fail if the Plaintiff had no locus to represent the estate of the deceased. 

Background

3.On 6 January 2012, the Plaintiff commenced the present proceedings against the Defendant.  By his Indorsement of Claim, he claimed, as the representative of the estate (“the Estate”) of his deceased mother, Madam Tang Lan (“the Deceased”) against the Defendant, for, among others, an account, payment of all sums found due, recovery of possession of a landed property known as Shop A-2 on G/F and M/F, Fung Nin Building, Nos. 26 – 36 Tai Pei Tau Path and No.7 Fung Nin Road, Yuen Long, New Territories, Hong Kong (“the Property”) and damages.

4.He applied ex-parte on the same date for a representation order.  In his supporting affirmation, he explained that the Deceased died intestate, leaving him and the Defendant entitled to share in the Estate.  He knew that the Estate consisted of the Property.  It was divided into different stores.  One of them was operated by the Defendant when the other two were leased out for rent. After the death of the Deceased, he tried to talk to the Defendant on the administration of the Estate.  The Defendant was not co-operative and refused to pay any rent for her business. Further, she was accepting rent from the other tenants.  She even alleged that the Plaintiff was not the natural and lawful son of the Deceased when it was clearly shown on the birth certificate.  Caveat HCCA 4393/2011 was entered and no grant of the Estate had been made.

5.Requisitions were later raised by the Court on 18 January 2012 asking, inter alia, the Plaintiff to conduct probate search and the need to inform the Defendant of the ex-parte application.

6.The Plaintiff replied by his affirmation filed on 1 February 2012.  He confirmed that the search was done on 31 January 2012 and no grant had been issued.  The Plaintiff further said that the present application was made known through the Defendant’s solicitors by letter of 10 January 2012.

7.On 8 February 2012, this Court granted the representation order to the Plaintiff.

8.Pursuant to such order, the Writ was amended on 13 February 2012 to reflect the appointment.  The Statement of Claim was also filed on the same date.

9.The Defendant filed her acknowledgment of service on 22 February 2012 stating her intention to contest the proceedings.

10.Her Defence was also filed on 23 March 2012.  To sum up, she said that the Plaintiff was only born by one Madam Chu and as such, she was the sole beneficiary of the Estate.  She further said that the representation order was to be set aside.  She had no obligation to explain to the Plaintiff anything about the Estate.  After all, there were 3 stores operating at the Property. Two of them were rented out and she had a record of the rent.  As to the one run by her, the Deceased always allowed her to do so free of charge.

11.On the same day, the Defendant issued the setting aside application. She said that there was material mis-statement and non-disclosure in the ex-parte application.  Certainly, it was the case of the Defendant that the Plaintiff was not even a beneficiary to the Estate.

12.The Plaintiff contested the setting aside application and denied the allegation made against him.  He relied on his birth certificate to show his locus.  He asked this Court to dismiss the setting aside application.

13.The Plaintiff further issued the account application asking the Defendant to produce income and expenditure record by affidavit regarding the Property.

14.In the meantime, pending determination of the said 2 applications, parties obtained usual directions from this Court regarding list of documents and witness statements.

15.Parties appeared with their Counsel before me on 19 September 2012. Having heard from them, I reserved my decision to be handed down and I now do so.

Decision and Reasons

16.Upon consideration of all the evidence authorities and submissions from the parties, I have decided to allow the setting aside application, and a fortiori, the account application will be dismissed.

17.Briefly, parties had raised 3 disputes before me.

(a)   Are the proceedings a nullity?

(b)   Were there material mis-statements and/or non-disclosure on the part of the Plaintiff when he applied ex-parte the representation order?

(c)   In any event, should the Court exercise his discretion afresh in favour of the Plaintiff to grant him the representation order?

Nullity?

18.Mr Ngai submitted that at the time of the writ, the present action was not a valid one and hence a nullity.  Mr Wong disagreed and said that it was merely irregular and the same was cured by the representation order.

19.Upon thought, I agree with Mr Ngai.

(a)   To start with, one looks at the writ and indorsement of claim herein to identify the course of action.

“The Plaintiff claims as the representative of the estate of Tang Lan [emphasis added], the Deceased, (“the Deceased”) for: -

……”

(b)   Hence, although it is not disputed the Plaintiff is at least a potential beneficiary of the Estate, he has elected to commence the action as representative of the Estate, and not his own personal capacity.

(c)   At the hearing, Mr Wong agreed with (b). He further confirmed that there was no application for amendment before me, although the Plaintiff could apply for one later, depending on the development of the matter.

(d)   Given the above, I believe that an answer to the dispute between the parties can be located in the authorities of Re Yien Chi Ren [2009] 5 HKLRD 413 when Deputy Judge Horace Wong, SC, said:

“……

27. As regard O.15 r.15, Mr Wong refers me to the case of Re Estate of Luk Kim Ying [2008] 5 HKLRD 743. In that case, Poon J held that while a party could not purport to sue on behalf of an intestate estate until and unless he was granted letters of administration, as a beneficiary of an unadministered estate, he may sue in his personal capacity if his claim is connected with the proper administration of the estate. Where the person has such locus to sue, it is incumbent upon him to join the personal representative of the estate to represent the estate, and if there is no such personal representative, the court may cure the irregularity that may otherwise arise by invoking O.15 r.15(1) to make a representation order to appoint a person as the representative of the estate. In the case before him, the learned Judge was of the view that parts of the plaintiff’s claims in that case were connected with the proper administration of the estate in question, and a representation order was made under O.15 r.15(1) to appoint the plaintiff as the representative of the estate. The learned Judge rejected the argument that O.15 r.15 only applied to ongoing proceedings deceased person, when living, was made a party, had died. That argument was rejected as too narrow.

28. I am of the view that the decision in Re Estate of Luk Kim Ying must be read against its own facts. In that case Poon J invoked O.15 r.15 merely to cure the irregularity arising from the non-joinder of the personal representative of the estate. However, the invocation of O.15 r.15 was only made after the learned Judge had arrived at the conclusion that the plaintiff had the locus to commence the action in his personal capacity to the extent that part of his claims were held by the learned Judge to be connected with the proper administration of the estate. In other words, the learned Judge did not hold that O.15 r.15 could be invoked to cure the lack of locus, but only to cure a procedural irregularity after the locus question had been resolved in favour of the plaintiff in the case before him.

……”

Material non-statements and/or non-disclosure?

20.As the representation order was made ex-parte, the Defendant also complained that the Plaintiff had made material mis-statements and/or non-disclosure in his application.  To cut short the long argument, I take the view that:

(a)   The factual disputes between the parties cannot be resolved by affidavit evidence or at all.  They have to be decided at trial proper.

(b)   On balance, although I do not consider that there was material non-disclosure on the part of the Plaintiff.  The ex-parte application would have been directed to be made inter-parties should I be put in a clearer position to understand the nature of “notice” having been given to the Defendant by the Plaintiff.

Exercise of discretion afresh?

21.Having ruled the nullity point in favour of the Defendant, it suffices to put an end to the matter on the discretion dispute.  There is no need for me to decide if discretion should or should not be exercised in favour of the Plaintiff, though I certainly agree that there should not be any intermeddling of the Estate and/or someone has been taking advantage over others.  However, as there is a clear difference between (a) suing in one’s own capacity and (b) suing in a representative capacity, and given that parties are aware of the same, I can only leave the matter in their good hands as to how the matter will develop.

Costs

22.Costs usually follow the event.  I see no particular reason to depart from it.  There will be an order nisi that the Plaintiff do pay costs of the Defendant in the application, including Certificate for Counsel on 19 September 2012 and costs reserved, to be summarily assessed by me, if not agreed.  For the purpose of the assessment, the Defendant do lodge and serve her costs statement within 21 days from today.  The Plaintiff then will have 7 days to lodge and serve his reply.

Mr Simon Wong instructed by Messrs Tang, Lee & Co for the Plaintiff.

Mr Lawrence Ngai instructed by Messrs S.H. Chou & Co for the Defendant.