WOO MING HAN JULIANA, THE PERSONAL REPRESENTATIVE OF THE ESTATE OF WOO HUNG KUNG LING, THE DECEASED v. WOO KOO PING AND OTHERS

HCA 1545/2015

ACTION NO 1545 of 2015

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REASONS FOR DECISION

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Introduction

1.  The defendants issued three summonses, all returnable before me on 4 January 2016 at 9:30am.  They asked for:

(1) vacation of registration of lis pendens;

(2) striking out part of Statement of Claim; and

(3) production and inspection of documents.

2.  On 30 November 2015, I ordered in HCMP 1715/2015 that the registration in the Land Office as lis pendens of the Amended Writ in this action in respect of what was called the “Subject Property” be vacated and that Juliana Woo do pay costs on indemnity basis.  Reasons for my decision (“Reasons for Decision”) were handed down on 10 December 2015. I incorporate the Reasons for Decision here by reference and adopt the same abbreviations.

Vacation of registration of lis pendens

3.  The Amended Writ in this action dated 10 July 2015 was drafted by Hui & Lam who were acting for the plaintiff.  They came on and off the record to suit the purposes of the plaintiff.

4.  In the first summons, the defendants asked for vacation of the registration in the Land Office as lis pendens of the Amended Writ in this action in respect of the Cambridge Garden Property.  In HCMP 1715/2015, I held that the Amended Writ did not affect land and was not registrable. 

5.  By letter dated 22 December 2015, Hui & Lam said that they:

“… agreed that [Juliana Woo’s] lis pendens is not registrable.”

6.  Hui & Lam said they had written to the Land Registry for cancellation of the registration.  Hui & Lam offered costs on party‑and‑party basis.  The defendants asked for costs on indemnity basis. 

7.  The crucial point is that the Amended Writ was plainly not registrable. Juliana Woo and Hui & Lam should never have sought to procure its registration.  Costs should be on indemnity basis to mark the court’s disapproval of the abuse of the land registration system.

Striking out of part of Statement of Claim

8.  The Statement of Claim was drafted by Mr Martin Ho, instructed by Hui & Lam.

9.  The Statement of Claim challenges the transfer of shares in HoldingCo from the late Mother to the Father.

10.  The Indorsement of Claim, as amended, was quoted in full in para 7 of the Reasons for Decision.

11.  By paras 11 to 15 of the prayer in the Statement of Claim, the plaintiff claims the following reliefs:

“(11) A declaration that the Plaintiff owns a one-third beneficial interest in the [Subject Property], and that the 3^rd defendant holds the said one-third beneficial interest in the [Subject Property] on trust and/or constructive trust for the Plaintiff;

(12) A declaration that the Plaintiff owns a one-third beneficial interest in the Cambridge Garden property, and that the 3^rd Defendant holds the said one-third beneficial interest in the [Subject Property] on trust and/or constructive trust for the Plaintiff;

(13) An injunction restraining the 3^rd Defendant from completing the sale and purchase of the [Subject Property] pursuant to a provisional sale and purchase agreement entered into with Billion Gold Holdings Limited dated 29^th May 2015;

(14) Alternative to subparagraph (13) above, an injunction restraining each of the 1^st, 2^nd and 3^rd Defendants, whether by himself/itself or his/its servants or agent or otherwise howsoever, from disposing of or otherwise dealing with the [sic] one-third of the net proceeds from the 3^rd Defendant’s intended sale of the [Subject Property] otherwise than by payment, delivery up or transfer to the Plaintiff;

(15) All necessary consequential orders and/or directions for the calculation of the net proceeds referred to in subparagraph (14) above”.

12.  As Hon Yuen J (as she then was) said in Commissioner of Inland Revenue v Quitsubdue Limited [1999] 2 HKLRD 481:

“… it is well-established that a shareholder has no proprietary interest in the property of the company of which he is a shareholder.”

13.  Irrespective of whether the transfer by the late Mother to the Father of the shares in HoldingCo was invalid, the estate of the late Mother has no claim to the properties of the registered owner, a wholly owned subsidiary of HoldingCo.  Plainly, prayers (11) to (15) disclose no reasonable cause of action and ought to be struck out.

Production and inspection of documents

14.  The defendants’ discovery summons asked for:

(1) provision of true copies of affirmations made by Juliana Woo in support of her application to be granted administration of the estate of the late Mother together with all other supporting documents; and

(2) provision to the defendants’ solicitors for inspection the originals of exhibits “WMHJ‑8” and “WMHJ‑9” to Juliana Woo’s 2^nd affirmation in HCMP 1449/2015.

15.  The Father deposed that he had “never renounced [his] right to be Administrator of the estate of [his] late wife …” and that “WMHJ‑8” and “WMHJ‑9” were “fabricated”.

16.  As the surviving spouse, the Father is a beneficiary and is interested in the grant of administration of the late Mother’s estate.  Juliana Woo was evasive, or did not respond, to the repeated requests for production.

17.  As some of the documents should have been filed in the Probate Court and are no longer in the custody, order or control of Juliana Woo, I made an order in terms of para 19(4) below.

Costs

18.  In my judgment, Juliana Woo should bear the costs of all three summonses.

Disposition

19.  On 4 January 2016, I made the following orders:

(1) Leave to the defendants to withdraw their summons issued on 21 December 2015.  Costs of the defendants’ application by this summons, including costs of today, be paid by Juliana Woo to the defendants as ordered in sub‑para (5) below.

(2) Order in terms of para 1 of the summons issued by the defendants on 24 December 2015.

(3) Juliana Woo do provide to the defendants’ solicitors by 4pm on 14 January 2016 the originals, or true copies of the documents, copies of which are at pp 233 and 237 of Bundle B1 of the hearing bundles, for inspection.

(4) Summons issued by the defendants on 28 December 2015 be adjourned, with liberty to restore, pending the defendants’ application to the Probate Court/registrar for permission to inspect the court file in HCAG 017432/2014.

(5) Juliana Woo do pay the defendants the costs of all three summons, summarily assessed in the global sum of $120,000.