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HCMP1027/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1027 OF 2009
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IN THE MATTER of the Estate of Tse Sze Chun, Deceased
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and
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IN THE MATTER of Order 85, Rule 2(1), 2(2)(a), 2(3)(a), 2(3)(b) and 2(3)(e) of the Rules of the High Court Cap.4 Laws of Hong Kong
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BETWEEN
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LEUNG DIP SHUM |
Plaintiff |
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and
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TSE PUI KWAN |
1st Defendant |
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(Executor and Trustee under the last Will of Tse Sze Chun, Deceased) |
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TSE PUI KWONG |
2nd Defendant |
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Before: Hon Lam J in Chambers
Date of Hearing: 18 May 2011
Date of Judgment: 18 May 2011
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J U D G M E N T
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1. On 17 November last year, this Court gave directions that the accounts be taken before a master and as regards how accounts were to be taken, directions would be given by the master. This Court continued to say that after the accounts had been taken, then the parties shall restore the matter before this Court.
2. The intention behind those directions was that the parties should go before the master to have the accounts taken. By having the accounts taken I mean that the accounts would be considered by the master, not only just for the purpose of giving directions for the filing of accounts and objections, but that the master shall deal with the substantive disputes between the parties with regard to the accounts and that should result in an order by the master resolving those disputes in a form similar to what can be found at Atkin’s Court Forms Vol. 2 (2003 Issue) on Administration of Estate at form number 104 (paragraph 154) at p.197 - 198.
3. For the purpose of the taking of the accounts, I directed that the master may give whatever directions that the master deemed fit as a matter of case management. There are some suggestions in the commentary in Atkin’s Court Forms Vol. 2 (2003 Issue), paragraph 19, and also in Halsbury’s Laws of England 5th eds (2009), volume 12, paragraph 1525, that the master can direct hearings before him or her and also, if necessary, give direction as to the filing of points of claim and points of defence.
4. Indeed, at one stage, solicitors for the Plaintiff wrote to this Court seeking some directions about the preparation of the accounts and the manner as to the taking of the accounts in a letter of 11 December 2010. This Court indicated by reply on 14 December 2010 that, as regards the matter concerning directions for the taking of accounts, the parties should seek directions from the master. This was again reiterated by this Court at a hearing on 22 March this year. On that occasion, it was the 1st Defendant who took out a discovery summons and the Court directed that the summons be adjourned to a date before the master seized with the taking of the accounts.
5. After the March hearing, on 29 April 2011, solicitors for the Plaintiff wrote to this Court to apply for further directions with regard to the substantive hearing of the originating summons. The Court directed that the matter be listed for hearing today. At the beginning of today’s hearing, I inquired with Mr Wong, counsel for the Plaintiff, as to the reason why the parties did not proceed with the taking of the accounts before the master and instead come to this Court to ask for further directions with regard to a substantive hearing of the originating summons. I also reiterated the original intention behind my directions in November last year, that is, the matter should only come back to this Court after accounts were taken before the master, resulting in a resolution of the disputes concerning the accounts.
6. Mr Wong tried to persuade this Court that as a result of what had happened since November last year this Court should reconsider whether that direction should stand. The only thing that Mr Wong referred to, to urge this Court to reconsider the position, is by reference to some alleged funds not being accounted for by the 1st Defendant in the accounts already filed pursuant to the directions of the master.
7. In my judgment, those matters can be taken up before the master dealing with the taking of the accounts. The Plaintiff, if necessary, can put in supplemental objection to the accounts of the 1st Defendant by referring to the money unaccounted for. It would then be up to the master to consider how to deal with this dispute. It does not provide a reason for asking this Court to reconsider my directions given in November last year.
8. I reiterate again that the parties should go before the master to proceed with the taking of the accounts. Parties should not come back to this Court to ask for further directions before that process has been completed.
9. In the circumstances, I must reject Mr Wong’s application for reconsideration of the matter and the parties should go before the master as to the future conduct of the taking of the accounts.
(Submissions on costs)
10. I will order the Plaintiff to pay the 1st Defendant’s costs of this hearing and I will fix the costs summarily at $6,000. I do not think this is a matter which required attendance of counsel. The directions had been clear and the parties should have understood it, if not before, at the latest, by the time of the hearing in March. This is a direction hearing and solicitors should be capable of dealing with it. There is no reason why counsel need to be briefed.
11. As far as the preparation for this hearing is concerned, I do not see how it takes more than one hour for a reasonably competent solicitor to make the necessary preparation. Taking into account of the length of today’s hearing, I assess the costs payable to the 1st Defendant at $6,000.
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(M H Lam)
Judge of the Court of First Instance
High Court |
Mr Brian C W Wong, instructed by S K Wong & Co., for the Plaintiff
Mr Chase C M Pun, instructed by Messrs Christine F L Ip & Young, for the 1st Defendant
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