To Pui Kui v. Ng Oi Che and Others
Read the full judgment text of CACV 67/2014 on BabelCite. This Court of Appeal judgment was delivered on 27 February 2015.
1. To understand the matters argued before this court in these appeals, it is necessary to summarize the background of the proceedings.
Cites 6 cases
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CACV 67/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 67 OF 2014 (ON APPEAL FROM HCA NO. 522 OF 2008) ________________________ BETWEEN
________________________ AND CACV 156/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 156 OF 2014 (ON APPEAL FROM HCA NO. 522 OF 2008) _______________________ BETWEEN
_______________________ (Heard together)
________________________ J U D G M E N T ________________________ Hon Yuen JA (giving the Judgment of the Court): 1.To understand the matters argued before this court in these appeals, it is necessary to summarize the background of the proceedings. Background 2.On the morning of 29 March 2002 which was a public holiday, Ng Po Sum (“the deceased”) died suddenly, aged 86. He left a wife Madam To Pui Kui (“the mother”) and eight adult children (four sons and four daughters). 3.The deceased died intestate and Letters of Administration were taken out by the mother. HCA522/2008 (“the action”) 4.In HCA522/2008 (“the action”), the mother issued proceedings as the administratrix of the deceased’s estate against a daughter Stephanie Ng Oi Che (“Stephanie”) as the 1st defendant, the Wing Lung Bank (“the Bank”) as the 2nd defendant, and a family company by the name of Hultucktong Enterprises Ltd (“HEL”) as the 3rd defendant. No Beddoe order was sought by the mother prior to, or at any stage during, the proceedings. 5.1.The claim arose in this way. 5.2.It was common ground that the deceased had two accounts with the Bank, one in his personal name and the other in the name of Ng Po Sum & Co. He also had a safe deposit box with the Bank. 5.3.Apart from the deceased, the only other authorized signatory for both bank accounts and the safe deposit box was Stephanie. 5.4.The mother alleged that on 2 April 2002, the first working day after the deceased died, Stephanie transferred a total of $516,936 from the two bank accounts (“the moneys”) into HEL’s account, and removed the contents of the safe deposit box. 5.5.The mother’s claim against Stephanie was for breach of trust and fiduciary duty, the claim against the Bank was for breach of contract and negligence, and the claim against HEL was for knowing receipt of the moneys. 6.1.Stephanie and HEL adopted the same defence and were represented by the same lawyers. (The case in respect of the Bank is not material to this appeal and we shall say no more about it). 6.2.Essentially the defence of Stephanie and HEL was that she had transferred the moneys and removed the contents of the safe deposit box in compliance with instructions given or agreed to by the mother, on 29 March 2002 a few hours after the deceased’s death, at a lunch gathering attended by other family members including her brother Andrew Ng Kwok Tai (“Andrew”) who accompanied her to the Bank on 2 April 2002. This was denied and became the focal point of the trial. 6.3.As far as the moneys were concerned:
6.4.As far as the contents of the safe deposit box were concerned, Stephanie’s defence was that she went to the bank together with Andrew on 2 April 2002 to collect the contents, and that evening there was a dinner gathering attended by other members of the family (including Andrew) at which the mother distributed the contents. This was denied. Trial 7.The action came on for trial before Deputy High Court Judge Winnie Tam SC (“the judge”) on 30 July 2012. The trial took 11 days. For the plaintiff, the mother (then aged 90) gave evidence, as did Andrew. For the defendants, Stephanie and her brothers Philip Ng Kwok Piu (“Philip”) and Tony Ng Kwok Tung (“Tony”) gave evidence. 8.1.In respect of the moneys, the mother was cross-examined as to whether she knew that the moneys taken by Stephanie from the bank accounts had been used to pay the funeral expenses and for the new car. The mother testified that she did not know that all along, and that she would not have sued Stephanie had she known that (Transcript E1/964-965) because the money was “trivial” (E1/979), and was not even enough to pay lawyers’ fees (E1/981-982). 8.2.The mother was also cross-examined on that part of her witness statement where she had said that the funeral expenses should have been paid by NSMAL. It turned out however that she was unaware of the fact that NSMAL did not even have a bank account or its financial situation (E1/973), and she said she would accept the correctness of her statement if “NSMAL” had meant HEL (E1/977), in other words approving the payment by HEL to whom Stephanie had transferred the money. 8.3.In re-examination, the mother queried the procedural propriety of what Stephanie had done (E2/1032-5) but said that she would sue Stephanie only if the moneys had not been used to pay funeral expenses (E2/1032-9). 9.In respect of the safe deposit box, the mother confirmed that she did not personally know what had been in the safe deposit box when the deceased died (E1/971). It is worth noting that the schedule of property attached to the letters of administration did not identify any items that had allegedly been in the safe deposit box and which had gone missing (para. 37, Judgment), and that in the video deposition in Canadian proceedings, the mother said the loss of the contents was a “minor issue” (para. 27, Judgment). Judgment 10.1.In a Judgment handed down on 3 March 2014 (“the Judgment”), the judge found (amongst other things) that:
10.2.The judge accordingly dismissed the action against all the defendants. 11.The judge also indicated that she wished to hear the parties on costs before making a costs order. Directions were given for written submissions to be made. Joinder of Andrew 12.Eleven days after the judgment was handed down, on 14 March 2014 Stephanie and HEL applied for an order under s.52A(2) High Court Ordinance Cap. 4 that Andrew be joined as a party so that he could be made jointly and severally liable for the costs of the action with the mother. 13.Section 52A(2) states (where material):
14.The relevant rule of court is Order 62 r.6A RHC which provides (where material):
15.1.The judge adopted the established 2-stage approach for the application (see the authorities cited in Sun Focus Investment Ltd v Tang Shing Bor [2012] 5 HKLRD 853 para. 19). 15.2.On 27 March 2014, after a hearing at which Andrew (then acting in person) was present, the judge ordered that Andrew be joined as party for the purposes of costs only. The judge gave directions to the parties to file affirmations and written submissions, and the hearing was adjourned with liberty to apply. 15.3.Andrew duly filed two affirmations, on 23 April and 5 June 2014. The Costs Liability Decision 16.1.On 23 June 2014 the parties appeared before the judge, with Andrew represented by counsel Mr Jeffrey Tam (who is also representing him before this court). The mother’s counsel held a watching brief. 16.2.For reasons set out in Reasons for Decision handed down on 27 June 2014 (“the Costs Liability Decision”), the judge ordered that Andrew be jointly and severally liable with the mother for the costs of the action, and gave directions for all parties to file submissions in respect of the costs of the action. The Decision on Costs 17.1.On 26 September 2014 the parties appeared before the judge to argue costs. 17.2.On 8 October 2014 the judge handed down her decision on costs (“the Decision on Costs”). The judge held (amongst other things) that:
The mother’s appeal - CACV67/2014 18.1..In the meantime, on 31 March 2014 the mother had lodged an appeal against the judgment (“CACV67”). The respondents were Stephanie, the Bank and HEL. 18.2.After the judge’s Decision on Costs, the mother’s notice of appeal was amended to include an appeal from that decision. 18.3.The orders sought by the mother were that there be judgment in the action in her favour with costs to be paid by Stephanie and HEL, and also that she be entitled to an indemnity from the deceased’s estate in respect of the costs payable to Stephanie and HEL and her own costs on appeal and below (irrespective of the result of the appeal). Andrew’s appeal - CACV156/2014 19.In the meantime, Andrew in his capacity as “Party on Costs” had on 28 July 2014 filed an appeal from the Costs Liability Decision (“CACV156”). Andrew’s application to join the action as interested party 20.1.However on 16 December 2014 the mother agreed to a dismissal of her appeal (CACV67) by consent. 20.2.On 23 December 2014, Andrew issued a summons under O.15 r.6(2)(b)(ii) RHC in the mother’s appeal for an order that:
20.3.The orders he sought were:
He did not ask for an order for costs to be paid out of the estate. Matters before this court 21.1.Thus there were before us on 20 January 2015 the following matters:
21.2.Although there was no specific appeal against the Decision on Costs order, it must follow from the orders he sought in his draft notice of appeal in CACV67 that he is appealing from that order as well. Summons 22.As mentioned above, Andrew’s summons was issued under O.15 r.6(2)(b)(ii) RHC. Sub-rule (b) in its entirety provides as follows:
23.We shall deal with a short point first. Mr Tam submitted that Andrew should be allowed to join the action as a party as the outcome of CACV67 affects his entitlement under the deceased’s estate. Miss Teresa Cheng SC, leading counsel for Stephanie and HEL, submitted that Andrew has no right to intervene in the action simply on the basis that he is a beneficiary of the estate. We agree with Miss Cheng’s submission. It is well-established that a beneficiary has no personal cause of action against a third party (ie someone who is not the executor/administrator) for a loss suffered by the estate, as the proper person to bring proceedings is the executor/administrator (Lewin on Trusts, 19th ed para. 43-001). Where, as here, the administratrix has decided not to pursue an appeal, the beneficiary’s remedy is to sue the administratrix (Tsang Yue Joyce v Standard Chartered Bank (HK) Ltd [2010] 5 HKLRD 628, para.44). 24.1.Principally however, Mr Tam’s argument was that as Andrew would be required to “foot the bill” (of costs) under the Costs Liability Decision, he should be entitled to dispute the findings in the Judgment which gave rise to the Decision on Costs, now that the mother is not proceeding with the appeal. 24.2.In Gurtner v Circuit [1968] 2 QB 587, it was held (p.595):
24.3. Gurtner was the landmark case where the Motor Insurers Bureau, which was contractually obliged to the Ministry of Transport to pay compensation to persons injured by uninsured drivers, was allowed to join as a defendant to contest an action by an injured person claiming substantial damages against a defendant driver who could no longer be traced and would therefore not be contesting the action. 24.4.It would be noted in the passage quoted in para. 24.2 above that joinder was allowed on the basis of sub-rule (b)(i), not sub-rule (b)(ii). However it was quoted in Sanders Lead Co Inc v Entores Metal Brokers Ltd [1984] WLR 452 at 460 in a passage which was adopted by this court (Cons VP, Clough JA and Hooper J) in Wong Chun Loong Tony v Ada Ltd [1991] 1 HKC 86 when considering the scope and flexibility of sub-rule (b)(ii). Discussion 25.The issue in the present appeal is whether a person can apply for joinder under O.15 r.6(2)(b) where his interest involves only a liability for costs under s.52A(2) HCO (for convenience we shall call him “the s.52A(2) party”). Cases such as Gurtner, Sanders and Wong were concerned with substantial interests and did not deal with a s.52A(2) situation. In England, it was not until Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965 that it was realised that s.51 of the Supreme Court Act 1981 gave the English court jurisdiction to award costs against a non-party. In Hong Kong, it was not until 2008 that s.52A(2) was enacted to give the Hong Kong court that jurisdiction, repealing the previous express prohibition. 26.Neither counsel has been able to find any authority on the issue. 27.Starting therefore from first principles, I think that if it had been intended that a s.52A(2) party would be entitled to be added as a party under O.15 r.6(2)(b), then there would have been legislation and rules of court expressly providing for it. 28.1.Further, an application for costs liability under s.52A(2) can be made at any stage of the proceedings but should be made at an early opportunity. If an order were made in the course of the action, before any order for costs is made, and if the s.52A(2) order by itself would entitle the s.52A(2) party to be joined as a party to the action under O.15 r.6(2)(b), that would mean that there would be interposed into the action an additional party who would then be involved (in his own right) in all the procedures which parties to an action are involved, leading to a new set of pleadings and compliance with procedures such as discovery, witness statements, etc. This would lead to delay and additional costs being expended by all parties. 28.2.There would also be complications if the claim was for a number of remedies, say specific performance and costs. If a s.52A(2) party were to be entitled to be added as a defendant under sub-rule (2)(b), questions would arise as to whether he could cross-examine witnesses and make submissions on issues pertaining to the specific performance aspect as well, on the basis that the claimant’s success or failure in respect of that remedy would affect his potential liability to costs. 28.3.These undesirable consequences if a s.52A(2) party was entitled to be joined as an “interested party” under sub-rule (2)(b) – exposing all parties to additional time and costs, and leading to complications in the course of the trial – would be contrary to the underlying objectives of Order 1A RHC. Therefore we do not think that the legislature or the rules committee had intended that a s.52A(2) party should be entitled to be joined as an “interested party” under sub-rule (2)(b). 29.1.A case looking at the matter from the other end of the litigation time frame is Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (Associated Industrial Finance Pty Ltd, Third Party) [2004] 1 WLR 2807. In that case, the Privy Council gave final judgment and ordered costs to be paid by the losing party. However it turned out that the losing party was insolvent. 29.2.The successful party then sought (for the first time) a costs order against a non-party. The non-party argued that the Privy Council was functus officio as judgment had been sealed and could not be varied. 29.3.The Privy Council held that the non-party costs order was merely “supplemental to the judgment already pronounced and sealed and in no way varies it” (para. 17). 30.1.One other pointer against a s.52A(2) party’s application to be joined under sub-rule (2)(b) is this: the rationale behind a s.52A(2) order is to deal with the situation where even though there was no pre-existing sub-rule (2)(b) connection between the s.52A(2) party and the parties to the action, the s.52A(2) party was the real party interested in the outcome of the action. 30.2.Thus the English court of appeal has held that where there was such a pre-existing connection, joinder under Order 15 rule 6(2)(b) would be applicable. In Symphony Group PLC v Hodgson [1994] QB 179, the English Court of Appeal laid down principles for the guidance of judges when they are asked to make an order for costs against a non-party. It was held that a material consideration was this (p.193):
30.3.That passage indicates that the liability for costs is not by itself sufficient to enable the potential s.52A party to apply to be joined as a party to the action under sub-rule (2)(b). 30.4.Before leaving the discussion of that case however, we should sound a note of caution in respect of the passage quoted above. Although Balcombe LJ referred to “valid cause of action”, we think in the context the learned judge was using the term as short-hand for the requirements under sub-rule (2)(b), as a “cause of action” in the strict sense of the words is not a necessary prerequisite to joinder under sub-rule (2)(b); it is enough that there is “some direct interest in the subject matter” (Wong Chun Loong Tony, supra). 31.This brings us back to Mr Tam’s submission that since Andrew will be required to “foot the bill”, he is entitled to be joined as a party under sub-rule (2)(b). In our view, it is clear from the above discussion that sub-rule (2)(b) requires a substantive legal interest in the rights and remedies claimed or in the matters in the action requiring determination and adjudication, and a liability under a s.52A(2) costs order is not such an interest. 32.1.Finally we refer to Mr Tam’s submission that it would be contrary to natural justice if the s.52A(2) party could not contest the findings in the action. 32.2.However the normal situation in which the court would make a s.52A(2) order (as in the present case) is where the s.52A(2) party was closely connected with a party. That is why findings in the action would be admissible against him (Symphony Group PLC v Hodgson [1994] QB 179, 193 and PR Records v Vinyl 2000 & ors [2008] 1 Costs LR 19, para. 36). There is therefore no question of breach of natural justice, because the court must have based its order on a finding that the s.52A(2) party was in fact behind the party in the action, and as such was well aware of, and participated in, the conduct of the proceedings. 33.Of course the peculiarity in the present appeal is that the mother is no longer pursuing the appeal. However it seems to us that this is not relevant. If the judge was right in making the s.52A(2) order, then Andrew must stand or fall with the mother in the conduct of the action and the ensuing liability for costs. If the judge was wrong in making the s.52A(2) order, then Andrew would not be liable to pay the costs of the action in any event, and he would have no locus standi to challenge the Judgment. 34.For those reasons, we would dismiss the summons with costs. As a matter of completeness, if we are wrong and Andrew was entitled to be joined, we do not think there has been delay on his part in making the application one week after the mother abandoned the appeal. Since the grounds of appeal are similar, he would have been justified in waiting for the mother to advance the appeal. CACV67 35.We will proceed to consider briefly Mr Tam’s draft grounds of appeal against the Judgment in case I am wrong on the joinder summons. 36.The first ground was that the judge had failed to take into account the judgment of Deputy Judge Seagroatt in HCA523/2008. 37.1.In that action, the plaintiff was the mother suing in her capacity of administratrix of the deceased’s estate. All eight children were made defendants, together with a BVI company called Confederated Assets Group Ltd. The children were split into two camps, with Eleanor, Angela, Jeremy and Andrew siding with the mother, and Philip, Olympia, Tony and Stephanie in the opposing camp. 37.2.There were two issues: (1) whether there was a resolution purporting to reduce the number of shares in the 9th defendant company held by the deceased and by the mother respectively; and (2) whether there was a transfer of the deceased’s shares to Philip. 37.3.Deputy Judge Seagroatt heard the trial over a number of days from 3 October 2012 to 1 November 2012 – after the trial in HCA522/2008 before Deputy Judge Tam, which had taken place in July and August 2012. (Pausing here, we would have thought it would have been more convenient for the two actions to be listed to be heard by the same judge and at the same time but presumably there were good reasons why the trials were listed that way). 37.4.A number of persons including Stephanie, Andrew, Philip and Tony who gave oral evidence in HCA522/2008 before Deputy Judge Tam also gave oral evidence in HCA523/2008 before Deputy Judge Seagroatt. He handed down judgment on 30 November 2012, before judgment was handed down in HCA522/2008. He was critical of Stephanie, finding her an “unconvincing witness” (para. 96). 37.5.Nevertheless Deputy Judge Seagroatt held in relation to the first issue that he was unable to conclude that the resolution was forged. In relation to the second issue however, he found that he was not satisfied that the deceased had signed the transfer of his own shares to Philip, or if he did, that he knew what they purported to be. 37.6.Deputy Judge Seagroatt’s judgment was the subject of appeals in CACV281/2012 and CACV1/2013. In a judgment handed down on 21 August 2014, this court (Lam VP, Kwan and Barma JJA) upheld the judge’s decision in relation to the first issue but overturned his decision in relation to the second issue. The upshot was that the deceased’s estate did not have any shares in the 9th defendant company. In arriving at its conclusion, it was not necessary for the court to consider the judge’s findings of credibility of the various witnesses. 38.1.Mr Tam submitted that in assessing the credibility of the witnesses in HCA522/2008, Deputy Judge Tam had failed to consider Deputy Judge Seagroatt’s analysis and findings, in particular in relation to Stephanie’s credibility. 38.2.In our view, there is nothing in this submission. A judge can, and should, only consider the evidence adduced and submissions advanced before him/her (subject of course to principles of res judicata or issue estoppel which have not been argued here). A witness can be truthful in one case, and not truthful in another. Indeed a witness can be truthful in some parts of the evidence, and not in others, even in the same case. A judge must bring an independent mind to bear on the evidence adduced and submissions advanced in the case at hand. 39.The next ground was that there has been undue delay of 18½ months in delivering the judgment. 40.1.The delay is certainly regrettable. However the Court of Final Appeal has held in Mak Kang Hoi v Ho Yuk Wah (2007) 10 HKCFAR 552 that even the 30-month delay in that case could not alone succeed as a ground of appeal if the appellant cannot show omissions, errors, misunderstandings, inconsistencies etc which invalidated the judgment, rendered it unsafe or led to injustice to the appellant. What this court, as an appellate court, must do is to be vigilant to ensure that the trial judge’s decision and reasoning had not been harmed in any significant or fatal way by the passage of time (paras. 56-66). 40.2.Accordingly we turn to the points which Mr Tam suggested the judge had failed to deal with. 41.1.It was first submitted that the judge did not deal with an allegation of another dinner on 20 March 2002. However this was before the deceased’s death on 29 March 2002 and the events at the lunch gathering that day and the dinner gathering on 2 April 2002 after Stephanie’s visit to the Bank, and can have little bearing on the crucial issue whether the mother had given instructions to Stephanie to transfer the moneys and to remove the contents of the safe deposit box consequent to the deceased’s death. 41.2.It was also submitted by Mr Tam that the judge did not deal with the opening of a new Bank of China account on 3 April 2002, which Mr Tam submitted corroborated the fact that all family members expected the accounts at the Bank to be frozen. However, the opening of the new account is in itself equivocal. It is just as consistent with the accounts at the Bank being closed, as distinct from being frozen. 41.3.It was further submitted by Mr Tam that the judge did not deal with the distribution of a gold watch to Tony’s wife which, it was submitted, shows that the evidence of the distribution over dinner was untrue. 41.4.However Mr Tam said in answer to this court that the only evidence that the deceased did not approve of Tony’s wife was that he (the deceased) did not sign as a witness at Tony’s wedding and that no celebration was held. 41.5.It must be noted that the wedding took place in August 1983, nearly 20 years ago. In the absence of more recent relevant evidence showing the parents’ continued disapproval of Tony’s wife over the course of nearly two decades, we do not think the judge can be criticized for not dealing with this matter. 42.1.It was also submitted by Mr Tam that the delay would have prevented the judge from recalling and relying on the demeanour of the witnesses especially Stephanie and Philip, and from considering the inconsistences between her evidence in this action and in the Canadian proceedings. It was also submitted that the judge did not deal with the evidence relating to expenses other than the funeral expenses and the acquisition of the new car. 42.2.In relation to these comments, first it should be noted that apart from a judge’s own notes and full written submissions provided by counsel, the court’s audio recording system is available to enable verification of the oral evidence or oral submissions if necessary. Mr Tam has not been able to point to any instance of mistakes made by the judge in the record of the evidence in the Judgment, or any misunderstanding of the evidence. 42.3.Further the judge derived support for her conclusions from documentary evidence such as the transfer slips of the Bank and HEL’s passbook which contained writing which Andrew accepted were consistent with his handwriting, and documents relating to the hire purchase of the new car which he handled. 42.4.The judge also derived support from uncontested facts such as the fact that the deceased himself had intended (as evidenced in corporate records) that his funeral expenses should come from NSMAL and/or HEL, that NSMAL did not have a bank account, and that HEL did not have adequate funds for the anticipated funeral expenses. Further the judge did not believe Andrew’s evidence that the new car was for Tony, as it was not challenged that the latter had a car of the same make. 42.5.Further it has not been shown why evidence relating to HEL’s outgoings for other than the funeral expenses and the acquisition of the new car is relevant to the present action. 43.1.A further ground of appeal was that the judge was in error in holding that loss was required for the cause of action. 43.2.This submission was not developed before this court, and it suffices for us to say that as the judge had found as a primary fact that Stephanie was actually acting as the administratrix’s agent when transferring the moneys and removing the contents of the safe deposit box, there would be no question of loss to the estate for which she (Stephanie) would be responsible. 44.1.Finally Mr Tam referred to the judge’s focus on the part played by Andrew. As we understand Mr Tam’s submission, it was to the effect that even if the judge found that Andrew did know about the transfer of the moneys to HEL and the removal of the contents of the safe deposit box, the judge should not have found that the mother had given those instructions to Stephanie because Andrew had no obligation to inform her (the mother) about it. 44.2.With respect, that is simply unrealistic. There is no reason suggested why Andrew, being aware of Stephanie’s conduct, would not have told the mother immediately (or at any stage in the 10 years between 2002 and the time of trial) if the conduct was against the interests of the estate. 45.The fifth draft ground of appeal was not advanced by Mr Tam in his written or oral submissions, and so we will say no more about it. 46.By reason of the reasons briefly given above, we would in any event have dismissed Andrew’s appeal had he been successful in the joinder application. CACV156 47.We shall now deal with Andrew’s appeal in CACV156 against the Costs Liability Decision. 48.It is clear that the s.52A(2) order was made in the exercise of the judge’s discretion and that an appellate court should not interfere with a discretionary order unless satisfied that the judge had made an error or law, or had misapprehended material facts, or had failed to take relevant matters into consideration, or had taken irrelevant matters into consideration, or that the decision was “plainly wrong”. 49.1.Mr Tam accepted that the relevant principles had been recited and discussed by the judge in paras.13-18 of the Costs Liability Decision, which we will not reproduce here. However he made two primary submissions. 49.2.First, he submitted that the judge failed to acknowledge the significance of a non-party funding the action, and in the present action, Andrew did not fund the action. 49.3.The judge did not suppose that Andrew funded the litigation.In any event it is not a pre-requisite of a s.52A(2) order that the non-party had funded the action. Of course if he had done so and controlled the action, “justice will ordinarily require that ... he will pay the successful party’s costs” (Dymocks at p.2815) (emphasis added). 49.4.Accordingly the fact that Andrew did not fund the action does not assist Mr Tam in his attempt to persuade this court to overturn the judge’s exercise of discretion. 50.1.Secondly Mr Tam submitted that the judge was wrong to find evidence of Andrew’s manipulation of the action, and that there was no evidence showing Andrew was aware that there were no merits in the action, related to which was his submission that the judge was in error in thinking loss was required. 50.2.With respect to Mr Tam, the judge found there were no merits in the action, not only because of no loss, but primarily because the mother’s case against Stephanie was discredited by the judge’s findings that the mother had instructed or agreed that Stephanie should transfer the moneys and remove the contents of the safe deposit box. And the judge found that Andrew was present at that lunch meeting and also that he had accompanied Stephanie to the Bank itself (as evidenced by his writing on the transfer slips). 50.3.As for manipulation of the action, the reality of the situation was that the mother was extremely elderly (she was already 86 years old when the action was commenced) and was, in the judge’s description, “muddled” (para. 33, Costs Liability Decision). In contrast, Andrew knew right from the start that the moneys were used for funeral expenses (as he organized them) and for the acquisition of the new car (the hire purchase for which he arranged and which he drove). The mother’s evidence showed that she did not know that that was how the moneys were used. Andrew, one of her attorneys, obviously had not informed her of the actual factual situation which he knew first-hand. The mother’s evidence was that had she known of the use of the moneys, she would not have brought the action as it was over a trivial sum, and the contents of the safe deposit box was only a “minor issue”. As the judge put it, “it is difficult to draw any conclusion other than that Andrew knew but deliberately allowed the Mother to labour under the wrong impression that Stephanie had misappropriated the money in the Father’s two accounts ...” (para. 28 Costs Liability Decision). The fact that he gave evidence which the judge disbelieved exacerbated the situation. 51.We see no reason to interfere with the exercise of the judge’s discretion and we would dismiss CACV156 with costs. Mr Tam having expressed that he had no objection to costs following the event and a certificate for two counsel should the appeal be dismissed, there will be a certificate for two counsel.
Mr Jeffrey Tam, instructed by Damien Shea & Co., for Ng Kwok Tai Andrew, the intended party in CACV 67/2014 and the party on costs in CACV 156/2014 Ms Teresa Cheng, SC leading Mr Adrian Lai, instructed by S Cheng & Yeung, for the 1st defendant and 3rd defendant Attendance of Vremeli Chan & Co., Solicitors for the plaintiff, was excused Attendance of Deacons, Solicitors for the 2nd defendant, was excused |
Cases cited in this judgment
Further hearings and rulings under CACV 67/2014