MUI PO CHU v. MOI OAK WAH

1995 MP No.1927

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(MISCELLANEOUS PROCEEDINGS No. 1927 of 1995)

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J U D G M E N T

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1. This action was commenced by originating summons issued on 17 July 1995 for various reliefs regarding the defendant's management and distribution of the estate of Madam Chan York Yu, deceased ("the deceased"). The deceased died intestate in Hong Kong on 14 February 1987, leaving surviving her the defendant, her lawful husband, and three children, the plaintiff (a daughter) and two younger sons, Mui Kwan Shing and Mui Kwan Wai. By Letters of Administration granted on 17 January 1989, the defendant became the sole administrator of the deceased's estate ("the estate"). By the provisions of the Intestates' Estates Ordinance, Cap. 74, the defendant held the residuary estate in trust for himself and his three children. By section 2 of the Ordinance, "residuary estate" is defined as

"... every beneficial interest in an estate as to which a person dies intestate, after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable thereout, which ... he could, if of full age and capacity, have disposed of by his will."

There is no dispute that the respective entitlements of the beneficiaries in the residuary estate, after deducting from it a sum of $50,000 payable to the defendant, are as follows, and those are in accordance with section 4(3) of the Ordinance:

(a) the defendant, one half share,

(b) the plaintiff, one sixth share,

(c) Mui Kwan Shing, one sixth share, and

(d) Mui Kwan Wai, one sixth share.

2. By the originating summons, the plaintiff claimed against the defendant for an account of the assets as well as the funeral and testamentary expenses of the estate, so as to ascertain the amount of her entitlement in the estate. She also sought orders that the defendant sell the landed properties of the estate which had remained unsold at the time of the commencement of this action, namely, Ground Floor, Aldrich House, 371 Shau Kei Wan Road, Hong Kong ("371 G/F") and Shop No. 4, Ground Floor, Tak Lee Building, 993 King's Road, Hong Kong ("Shop 4"). There were originally three landed properties in the estate, and the third property, known as Flat E, 3rd Floor, Aldrich House, 371 Shau Kei Wan Road, Hong Kong ("Flat E") had been sold by the defendant on 16 September 1992.

THE PLAINTIFF'S CASE AND EVIDENCE

3. The plaintiff's case is that after the death of her mother, the deceased, she did not know that she was entitled to share in the estate. The defendant did not tell her. She was working in Hong Kong from 1975 to 1989. In about June 1989, she discovered from the Supreme Court Probate Registry that the defendant had obtained Letters of Administration. This was the first time that she realised that the defendant had all along concealed from her the fact of her entitlement to share in the estate. Yet she had no idea as to the exact size of her entitlement. She asked the defendant about the matter, and he felt unhappy and did not wish to distribute any money to her. He promised her to have a limited company set up for the purpose of distributing the estate to all the beneficiaries fairly and equally. She trusted him as her father. However, he never carried out his promise and never rendered any account of the estate to her.

4. The plaintiff planned to go to England to study and the defendant gave her $150,000 for the purpose on 16 August 1989. She quit her job in Hong Kong and left for England in September 1989. From then onwards till December 1994, she stayed in England and took up law in a university. She had little savings or income of her own, and for her subsistence and study in England she relied solely on remittances from the defendant. Although the defendant on various occasions remitted sums of money to her, the remittances were always late which caused her a lot of worries.

5. She told me that when she returned to Hong Kong in December 1994, she was ill-treated by the defendant. The defendant and a female friend of the family, Aunt Tam Wai-lin, picked her up at the airport and took her to stay in a "rock house" at Big Wave Bay. The house was desolate and dirty and she was made to sleep there for the night alone. She discovered that there were talismans in the house placing curses on her, and she was frightened. The next day, she went to stay in Mui Kwan Wai's flat in Shaukeiwan. That flat was also desolate and messy because her brother, visiting China very often, did not always live there. She did not dare use electricity in the flat for fear that the wiring was so old as to become dangerous. She had to go to the flat of another brother, Mui Kwan Shing, to take a bath, which she did once a week. The defendant was living with Mui Kwan Shing, his wife and two young children. On one occasion, when the plaintiff went to Mui Kwan Shing's flat to take a bath, his wife made an eye signal to the defendant. Thenceforth, Mui Kwan Shing and the defendant both told her not to take baths at Mui Kwan Shing's flat, resulting in her not having a bath for a month. On 27 January 1995, Mui Kwan Wai returned to his flat in which the plaintiff was lodging. After having a telephone conversation with the defendant on the telephone, the contents of which the plaintiff did not hear, Mui Kwan Wai threw her belongings out of the flat and refused to let her stay in his flat any more. She was compelled to move her things and herself back to the desolate rock house. The lorry driver who transported her things told her about Legal Aid and the whereabouts of the Legal Aid offices. As a result, she applied for legal aid on the same day, for the purpose of seeking accounts of the estate and her entitlement in it from the defendant.

6. Legal aid was only granted to her in June 1995. Before that she wrote about three letters to the defendant and talked to the defendant once over the telephone. The letters and the telephone call were to request the defendant to provide her with the accounts of the estate. Over the telephone, the defendant promised her that the accounts would be furnished soon, but nothing was forthcoming. All her later attempts to contact the defendant by telephone were frustrated because every time, it was Mui Kwan Shing's daughter of about 12 years of age answering. Starting from 20 June 1995, her solicitors appointed by the Legal Aid wrote letters to request the defendant to furnish accounts and documents relating to the estate. However, although the defendant did furnish accounts of the estate to her in July 1995 in response to her solicitors' letters, the defendant continued to fail to provide sufficient documentation to prove the figures set out in the accounts.

7. It was because of the defendant's said failures and his bad treatments of her eversince she returned to Hong Kong that she brought these proceedings against him.

8. There was a change of solicitors for the plaintiff. Sometime in November 1995, the second firm of solicitors acting for her ceased to act. Thence, she conducted all the proceedings in this action by herself. Pandora's box was ajar. Altogether she made and filed no less than 22 applications and 38 affirmations. She told me that she was trained in law being a holder of an LLB (Hons) degree from a recognised English University, having studied law in England for five years and she also knew accounting as she held an Advanced Diploma in Accounting, albeit not qualified as a professional accountant. She typed her applications, affirmations, so-called skeleton arguments and lists of authorities and bombarded the court with numerous such documents and some letters. She incessantly pressed for discovery by the defendant of various types of documents most of which either she was not entitled to or he did not have or could not reasonably be expected to have. She used a Post Office box, to which the defendant and his solicitors had no direct access, as her address for service, and she kept on complaining that the defendant's documents filed with the court did not reach her or reach her timeously. She mixed up what she supposed to be the relevant law with arguments and allegations of facts in her affirmations. In a number of her documents, she included irrelevant and inscrutable references to names of show business personalities, political and other figures and made scurrilous remarks about the defendant, his solicitors' staff and judges. The ramblings in her documents were ungrammatical, mysterious and quite often repetitive of her former texts. What was more, she sometimes inscribed numbers and strange signs in her documents that only she herself would understand. The reader would, I am sure, be forgiven to infer that she was out of her mind.

9. She produced as exhibit P1 a statement of calculations showing her entitlement to the estate and the amounts she said the defendant owed her. She mentioned to me that she had made some mistakes in exhibit P1 and told me what the correct calculations were. She later on produced exhibit P2, exhibit P4 and exhibit P5 being her calculations of what the defendant owed her throughout all these years after the death of her mother. She explained her theories about inflation and profit sharing, at the respective rates of 30% and 52% per annum, which she alleged that she was entitled to charge on the sums that the defendant owed her.

10. Apart from making calculations as to how much the defendant owed her, the plaintiff complained that the defendant continuously concealed the accounts of the estate from her, illegally paying large sums of money to her brothers but not her, and profiting from the share transactions that he undertook allegedly with the money from the estate without accounting the profits to her. She also described the occupation of the family home by the defendant and Mui Kwan Shing's family after the death of the deceased as embezzlement of the flat. That brother also embezzled 371 G/F. She did not trust the defendant at all and she had to check every figure in the estate account produced by the defendant against documents which she continued to seek from the defendant.

11. Despite the plaintiff's ramblings in her interlocutory documents, when she opened her case before me and gave evidence, she became quite clear-minded. She told me about the issues that I had to decide reasonably comprehensively, constantly reminding me that the defendant was in wilful default of his duties as a "statutory trustee". Only when she was confronted with questions from me about the logic and reasonableness of the bases of calculations proffered by her that she became inarticulate and even mute, sometimes with tears in her eyes. She was very bitter to the defendant, and particularly so to Mui Kwan Shing's wife, who was sometimes in court accompanying the elderly defendant. The plaintiff in the witness box described, with a sneering look on the face, her sister-in-law as "That woman who wears short hair, in a coloured suit with black inside, that woman sitting next to my father."

12. When cross-examined by counsel for the defendant, the plaintiff seldom answered any question straight. Her usual response commenced with "Because" or "But" or "Let me show you something". She was most evasive, argumentative, rude and critical of counsel. Many a time, instead of addressing the court she was quarrelsome with counsel either when she was giving evidence or when her questioning of witnesses was opposed. She was incoherent and went on with whatever she wanted unceasingly, quite often giving purported answers which were irrelevant and distracting. I had difficulty in stopping her and had to resort to shouts of "shut up" before she would listen. Yet she went on with her own story and chose whenever she liked to reply to queries put by me and defence counsel. Sometimes she would answer questions when very hard pressed, but sometimes not even so. I have little hesitation to find her an untruthful and unreliable witness. She would simply say anything to serve her own purposes.

THE DEFENDANT'S CASE AND EVIDENCE

13. The defendant is 75 years old. He told me that he had never concealed the plaintiff's entitlement from her. Upon his solicitors' advice, he obtained a photocopy of the identity card of the plaintiff and his sons for the purpose of applying for letters of administration, and by which she surely knew that she had a share in the estate. The income of the estate at the initial stage was insufficient to pay for all the expenses incurred for the estate, such as funeral expenses and estate duty. Whenever the plaintiff asked to borrow money and when she planned to go to England to study, he made advancements from the estate to her and promised that he would send her money if and when she required. He was prepared to satisfy her requests even though she might receive more than her share in the estate, because there were properties in the estate and any overpayment to her would be recouped when there was a final settlement of accounts on distribution.

14. The defendant was exasperated by these proceedings because he had made advancements to the plaintiff in excess of her fair share in the income of the estate. He had no idea why the plaintiff began to be bitter towards him soon after her return from England. He had no reason to make the plaintiff unhappy or to cause the siblings to be at odds with each other. He thought the plaintiff was operating from dreaming or illusions. Obviously he felt tormented and deeply hurt.

15. An accountant Mr Lam was called to produce a statement of affairs of the estate for the period between the deceased's death and 30 November 1995, which had been exhibited to the defendant's affirmation at the interlocutory stage. Mr Lam also produced an accountant's report for the period from 1 December 1995 to 30 November 1996. He had checked all the information and documents supplied by the defendant for the purpose of preparing the accounts in those exhibits.

16. The plaintiff's two brothers, Mui Kwan Shing and Mui Kwan Wai also gave evidence. They were agreeable to the defendant's advancements to the plaintiff, although such advancements exceeded the plaintiff's entitlement to the income and receipts of the estate and they themselves only received $300,000 each from the estate. They trusted the defendant in handling the estate. They were indignant with the plaintiff for they felt she was acting most unreasonably in suing their father, which act they despised as greed or illusions. Mui Lwan Wai also told me that in order to avoid inconvenience, he caused the plaintiff to move out of his flat on 27 January 1995 but he did not throw her things out to the street.

THE ISSUES

17. As I alluded to above, the plaintiff filed a large number of affirmations and documents in court. By two orders made by Master Jennings and J. Chan J. respectively on 25 October 1995 and 19 March 1996, these proceedings were treated as having been started by writ and the parties' numerous affirmations were treated as pleadings. It is extremely difficult therefore to crystallise the issues between the parties, especially in view of the numerous irrelevant matters raised in the plaintiff's affirmations. The plaintiff, however, in her opening mentioned the issues which required my determination, save that she did not identify any item of expense incurred for the estate to be taken into account, on the basis that those were for the defendant to prove.

18. There are two broad issues the determination of which would help resolve most if not all of the disputes:

(a) What is the extent of the defendant's duty to account to the plaintiff regarding the estate, and has he discharged that duty?

(b) What is and at various times was the amount due to the plaintiff as her entitlement in the estate and did the defendant fail to pay her the amount due, and if so, how much? Or alternatively, was the plaintiff overpaid by the defendant, and if so, how much?

19. There are many more issues raised by the plaintiff, but broadly speaking, they all involve the true and proper accounting of the income and expenditure of the estate, the amounts that the defendant paid to her as well as the nature of such payments, whether she should be entitled to interest and inflation, and whether she should be entitled to profits allegedly made by the defendant in his share transactions, etc. The issues so raised, insofar as they are relevant to the main broad issues of accounting, will be dealt with below under sub-headings.

The Duty to Account

20. I do not think it can be disputed that the defendant owed a duty to account to the beneficiaries of the estate as to all the moneys and properties of the estate that came into his hands. He became the trustee of such moneys and properties with himself and his three children as the beneficiaries. The extent of his duty regarding accounts can be found succinctly set out in Snells' Equity, 29th Ed., pp. 231-232, as follows:

"Another duty of a trustee is to keep accounts and produce them to any beneficiary when required. Trustees must also when required give any beneficiary all reasonable information as to the manner in which the trust estate has been dealt with and as to the investments representing it. When a beneficiary comes of age they must inform him of his interest under the trust. Further, in the absence of special circumstances, they must allow a beneficiary to inspect all title deeds and other documents relating to the trust estate."

Ill-Treatments by the Defendant

21. Having observed the plaintiff's demeanour and considering the evidence of this case very carefully, I do not accept that the plaintiff was ill-treated by her father, the defendant. Not that I absolutely disbelieve her that she felt ill-treated. She might, in her state of mind, have felt so. But I do not think the defendant had in any way ill-treated her. She had been working in Hong Kong between 1975 and 1989, about 14 years, before she went to England to pursue her education when she was about 34 years old. She was, according to her, quite impecunious and she relied solely on the defendant for financial support, albeit from her entitlement in her late mother's estate. This story she later changed in the witness box, but she did not disclose how much savings she had by hiding behind the excuse that she could not remember things that happened so long ago. The same excuse was employed when she was asked about the amount of salary she earned in 1989. Yet later in cross-examination, when she attributed pride to herself by saying that starting with an "extremely low" salary she was able to earn an "extremely high" salary in after a few years, she told me that she earned $1,000 in 1975 and over $8,000 in 1989 before she went to England. The defendant paid and remitted to her various sums of money which, as the accounts that I find in this case bear out, substantially exceeded her entitlement in the estate. I can see no reason why the defendant would all of a sudden change his attitude towards her after she returned to Hong Kong at the end of 1994.

22. She complained about the ill-treatment at the rock house by the defendant, because it was desolate and the defendant did a lot of superstitious things to her in that house, presumably for perpetrating curses on her. In cross-examination, she refused to look at photographs taken in and about that house, on bases that only she would understand. I accept what the defendant told me in evidence that he did not molest or harass the plaintiff after she returned to Hong Kong in December 1994. He was trying to avoid the trouble of having to seek her brothers' consent to let her stay in their flats and he lodged the plaintiff at the rock house because that house belonged to him. He, as a father, had no reason to cause displeasure to the plaintiff or to make the siblings at odds. I also accept Mui Kwan Wai's evidence that in order to avoid inconvenience, he asked the plaintiff to move out of his flat only during his sojourn for his Chinese New Year holidays for about 10 days and the plaintiff unreasonably refused. That was the reason why he caused her to move out and back to the rock house. I have little doubt that all the alleged ill-treatments of the plaintiff by the defendant were imagined by her rather than real.

Production of Accounts and Disclosure of Documents

23. As the defendant had paid the plaintiff more than the fair share of her entitlement in the estate, he had a clear conscience towards her. His sons consented to the advancements made by him to the plaintiff and did not have any complaint about the distribution of the estate. When the plaintiff sought accounts of the estate from him in the early part of 1995, he must have felt annoyed and yet he still started to prepare a full set of accounts, from whatever documents that he was searching as having been retained by him at the time. He did not wish to engage any accountant for the job, for fear of incurring hefty fees. He was trying hard to keep intact all the assets of the estate, which was the only substantial asset of his family, for the benefit of all the beneficiaries. That was why the initial accounts produced to the plaintiff's lawyers were in his own handwriting. He also tried his best to produce the documents required by the plaintiff verifying the figures in his accounts. Eventually, when the plaintiff had solicitors acting for her and started these proceedings against him, all his wish to save the estate from being depleted with fees charged by all kinds of professional people vanished.

24. The accounts and documents consisting of about 137 pages were furnished under a letter from the defendant's solicitors dated 1 July 1995 to the plaintiff's solicitors, before the plaintiff took out these proceedings. They can be found in exhibit MPC-4 to the plaintiff's own affirmation affirmed on 2 August and filed on 8 August 1995. Although the plaintiff said in evidence that she did not receive all the documents in that exhibit, it is obvious that they must have been received by her solicitors so that they could be produced as an exhibit to her affirmation. Despite her allegations against her solicitors, she must be regarded as having received the documents through her solicitors as her agent. Anyhow, I do not believe that she did not receive them from her own solicitors when she was vigilantly and hotly pursuing the defendant and for documentation.

25. In those accounts supplied by the defendant, there was no mention of any rental income from Flat E. The major complaints about documentation are shown in the letter dated 6 July 1995 from the plaintiff's solicitors. She complained that bank passbooks and bank statements of bank accounts containing the moneys of the estate had not been furnished, and that there was no tenancy agreement in respect of 371 G/F for the period between 1 April 1987 and 31 March 1989.

26. In respect of Flat E, the defendant had explained that it was the residence of the family before the death of the deceased and as from the death, it was occupied by himself and Mui Kwan Shing's family. The defendant in evidence told me that the flat was exempted from estate duty for being the matrimonial home of the deceased and the defendant. Mui Kwan Shing and his family were living with the couple in this flat before the death and continued to do so after the death until sometime in December 1990. It never came across the defendant's mind that rent had to be paid. Therefore, in his accounts to the plaintiff, he did not include any rent for this flat.

27. 371 G/F had been let to Mui Kwan Shing at the rent of $5,000 per month even before the deceased's death, and that tenancy continued until 31 March 1989. The defendant had accounted the actual rental to the estate when he wrote up the accounts demanded by the plaintiff. However, there was no written agreement for the tenancy.

28. In respect of the non-accounting of any occupation rent for Flat E and the lack of written tenancy agreement for 371 G/F, I accept the defendant's explanations. I find the defendant's conduct reasonable and acceptable although he owed a hefty duty as a trustee towards the plaintiff. It was on the other hand unreasonable of the plaintiff to take out these proceedings on 17 July 1995 when she had a substantial account of the incomes and expenses of the estate at that time, although she might not have what she described as sufficient documents to verify each and every single item of the accounts. There is no evidence at all, save perhaps her own allegations, that the defendant concealed anything from her. She was most unreasonably suspicious in nature or character or because of her strange state of mind. This can be demonstrated by her challenge against each and every item of expenditure of the estate, unless the defendant proved it in evidence. For instance, she maintained her dispute to the amounts of the estate duty and legal fees incurred in respect of the obtaining of the letters of administration even after counsel had directed her attention to the various documents evidencing the same. She also continued to challenge a number of items of the advancements from the estate made to her by the defendant. Her conduct in respect of the defendant's accounting of the estate as well as documentation verifying such accounting was, in my view, unreasonable. Bearing in mind the amount of advancements that she received, which must have appeared to any fair-minded person looking at the accounts that they were in excess of her entitlement, it was unreasonable and unjustifiable of her to seek the bank documents from the defendant. Her demand for documentation and proof was insatiable: she would ask for more even if there was evidence justifying acceptance by a normal and reasonable person.

The Alleged Embezzlements of Mui Kwan Shing

29. The plaintiff described Mui Kwan Shing's occupation of 371 G/F as embezzlement. I accept the defendant's evidence that Mui Kwan Shing had been paying rent of $5,000 a month for that shop to the deceased and after her death to the defendant. What the plaintiff appeared to be dissatisfied with was that the said rent was unreasonably low. She relied on a valuation report stating that the rent should be $6,500 to $7,400 per month for the period of Mui Kwan Shing's tenure. Save for a period of six months immediately following the deceased's death, I accept the valued rentals as they were not disputed by the defendant as the fair rents for 371 G/F. I shall return to this later. The defendant had already accounted for the rent of $5,000 a month in his account of the estate. I accept that the defendant did not act unreasonably because Mui Kwan Shing was a son and a sitting tenant since a number of years before the deceased's death paying the same rent to the deceased. The defendant was not guilty of wilful default. I do not believe that he was in any way operating from a motive of depriving the plaintiff from her share in a proper market rent. The difference between the proper market rent and $5,000 would merely cause a meagre diminution of the plaintiff's entitlement but a much larger diminution of the defendant's.

30. The plaintiff also claimed another embezzlement by Mui Kwan Shing, and that was in respect of the occupation of Flat E by him and his wife and children. The defendant lived there with them. The plaintiff kept on changing her allegation concerning the liability of the defendant in this regard: sometimes she said that the defendant also embezzled the flat, but sometimes she said that the defendant was a beneficiary under the estate and he was entitled to live in the flat. She kept on stressing that the flat was the defendant's matrimonial home but not Mui Kwan Shing's and that the latter and his family had no right to live there. I think what clearly represented her view is that she did not mind any Tom, Dick and Harry staying in the flat insofar as the occupant paid rent to which she should have a one-sixth share. The family had been living in this flat since the mid-1960s. Before and after the death of the deceased, the defendant and Mui Kwan Shing's young family lived there. The defendant thought he was entitled to remain with his son's family in the flat rent-free. In fact he thought that as the flat was exempted from estate duty, that allowed him to remain there rent free. The plaintiff never complained about the situation. It never came across the minds of the male beneficiaries that any rent was payable by the defendant or Mui Kwan Shing's family. I am sure that the defendant did not have any improper motive to exclude the plaintiff from this flat, whether as a residence or as a property. However, I think in all fairness to the plaintiff, the property should be treated as having an income-earning capacity, and the plaintiff should be entitled to share the income that ought to have been derived from it. The defendant had accepted the valuation of rental obtained by the plaintiff. The valued rentals are used in the accounts annexed to this judgment.

The Rentals from the Properties

31. As I have said, I consider that in all fairness to the plaintiff, the evaluated rentals from Flat E from March 1987 up to the time when it was sold on 16 September 1992 should be accounted to the estate. This is because the plaintiff would otherwise suffer a loss of income from a property belonging to the estate.

32. Regarding 371 G/F, while I find that the defendant had not acted unreasonably in allowing Mui Kwan Shing to continue to be a tenant after the death of the deceased at the rent of $5,000 a month up till 31 March 1989, I think it fairer in the circumstances to adopt the evaluated market rentals as set out in the plaintiff's valuation report for accounting purpose for the period before the premises were let out to an unrelated tenant on 1 April 1989. However, I accept Mr Chan's argument that even if Mui Kwan Shing had been an unrelated tenant, the defendant could not have evicted him or sought an increased rental from him because he was a sitting tenant. Six months' prior notice would have to be given to evict him. In the circumstances, for the period of six months between 1 March and 31 August 1987, the proper rent to be taken into account should be $5,000 a month as received by the defendant.

33. The tenant to whom 371 G/F was let eventually moved out on 31 March 1996, and the defendant intended to sell the property thereafter. His intention to sell was not unreasonable and in fact most sensible in the circumstances. In April 1996, he had been undergoing the experience of being involved in these proceedings as a defendant against a zealous and unreasonable plaintiff, his own daughter. The plaintiff herself took the stance of urging the court to make an order for sale until she changed course in the middle of the interlocutory stage of these proceedings. She then vehemently opposed to the sale of the two remaining properties of the estate. The defendant attempted twice to sell 371 G/F by public auction, but unfortunately failed because no bid reached the reserved price imposed by my Order dated 19 July 1996, made in view of the plaintiff's opposition and her auctioneers' appointment showing that price. In all the circumstances, I do not think it just that the defendant should account for any rental from this property after 31 March 1996. As there has been no rental from this shop since 1 April 1996 when it became vacant, I do not allow any rates or property tax on it from that date.

34. Although the plaintiff argued that the rent for Shop 4 before the expiration of the tenancy in November 1995 at $53,750 per month should apply, I am of the view that the defendant did not fail in his duties to let the premises to the existing tenant at the rental of $48,000 a month as from 1 January 1996, and this actual rent is used in the accounts annexed to this judgment. The shop was sold on 25 November 1996 before the expiration of the renewed tenancy. Since that date, no property tax should be allowed as an expenditure of the estate.

35. For the purposes of accounting and as applied in the accounts annexed to this judgment, the following are found by me to be the proper and true bases for calculating the rental receivable by the estate and that all the rents were exclusive of rates, i.e., the rates were or are treated as being borne by the tenant:

(a) Flat E: from 1 March 1987 to 15 February 1989 $5,100 per month; from 16 February 1989 to 15 February 1991 $6,100 per month; and from 16 February 1991 to 15 September 1992 $7,300 per month;

(b) 371 G/F: from 1 March to 31 August 1987 $5,000 a month; from 1 September 1987 to 15 February 1989 $6,500 per month; from 16 February to 31 March 1989 $7,400 per month; from 1 April 1989 to 31 March 1991 $7,600 per month; from 1 April 1989 to 31 March 1992 $8,892 per month; from 1 April 1992 to 31 March 1994 $12,500 per month; and from 1 April 1994 to 31 March 1996 $17,000 per month;

(c) Shop 4: from 1 March 1987 to 30 September 1989 $16,000 per month; from 1 October 1989 to 31 October 1991 $25,500 per month; from 1 November 1991 to 31 October 1994 $43,000 per month; from 1 November 1994 to 31 December 1995 $53,750 per month; and from 1 January 1996 to 24 November 1996 $48,000 per month.

Interest

36. One of the items on which the plaintiff opened her case was interest, and she said that a sum of $132,625 due to her between the death of her mother and June 1989 would become $200,000 in August 1989, and that sum did not include inflation. She also said that a sum of $86,716.70 being her share in the estate for the period between July 1989 and August 1990 would become $130,000 as at August 1990. The effective rate of interest she charged on the amounts allegedly due to her would be respectively about 50% for two and a half years for the first period and 50% for one year for the second period. That is absurd, and she was not able to produce any authority to justify it. She later on obtained a piece of paper on interest rate from the Hongkong and Shanghai Banking Corporation Limited, which she produced as exhibit P6, and relying on this exhibit, she reduced the interest rate substantially to 5.4375% per annum. In all her calculations in exhibits P1, P2, P4, and P5, this interest rate of 5.4375% was used.

37. The plaintiff did not work out any interest on the sum as might be found due from her to the estate, because she had all along operated on the premise that the defendant failed or refused to pay her fully her entitlement in the estate, and would not accept that she owed any liability if she had been overpaid.

38. Although in item 6 of Account No.2 annexed to this judgment, I find a sum of $5,934.95 due to the plaintiff at the end of 1988, I do not think it fair or just or reasonable to allow this sum to carry interest. Not only is the interest on this sum for a year or less negligibly small, but also that if I allow this sum to carry interest, I should in all fairness allow any overpayment from the estate to the plaintiff to carry interest. One also has to bear in mind that the receipts by the defendant of the income of the estate were not all carried out at the same time at the commencement of the relevant periods, and that the sum of $5,934.95 was the only occasion when the plaintiff's entitlement had not been fully paid to her. In the next year, 1989, the plaintiff was already overpaid, to the extent of $124,130.75. I also do not take into account any interest being earned by the defendant on his entitlement to the payment of $50,000 under section 4(3) of the Intestates' Estates Ordinance. The defendant told me that he never thought of charging any interest on any amount paid to the plaintiff in excess of her entitlement. His counsel in his final submissions expressly abandoned any such interest. I think that is a reasonable attitude and approach that ought to be adopted for this case.

39. Inflation

In all the plaintiff's calculations produced during her evidence, i.e., exhibits P1, P2, P4 and P5, she used the interest rate of 5.4375% per annum for the amount of debt allegedly due to her, and she multiplied the resulting figure with 1.3 to reflect inflation. On top of that sum, she further multiplied it with 1.52 to reflect profit, an issue I shall deal with below. She told me that the basis for the inflation rate she used was the rentals charged on 371 G/F for two periods, namely, the rent of $8,892 a month from 1 April 1991 to 31 March 1992 and the rent of $12,500 for the period between 1 April 1992 to 31 March 1994.

40. Her reason for adopting that basis was that these proceedings related to the rental income of the estate, and that the rentals she relied on were evidenced by the tenancy agreements produced by the defendant and in fact received by him.

41. She refused to compare her alleged inflation rate with the rentals from 371 G/F in respect of other periods and the rentals from other properties of the estate. Without more, I reject the plaintiff's alleged inflation rate as absolute nonsense and I hold that she is not entitled to charge for inflation at all on any sum which may be found due to her but not paid to her.

Profits from Share Dealing

42. At first the plaintiff alleged and gave evidence that the defendant started to invest in shares in 1992. From Account No. 2 annexed to this judgment, it is very clear that the plaintiff started to be overpaid since 16 August 1989, and therefore whatever the defendant did with other moneys of the estate, and the major share belonged to himself as the surviving husband of the deceased, was no concern of hers.

43. Later in her evidence, the plaintiff showed me a cheque drawn by the defendant to demonstrate that he started to invest in shares on 8 December 1988. However, this cheque was drawn on the defendant's current account with the Bank of China, whilst most of the rents from the properties of the estate were paid into his accounts with Hang Seng Bank. There is insufficient evidence to show that the defendant had used the money of the estate to invest in shares. On the contrary, the defendant told me that he used his own money, including his one half share in the estate, to invest in shares. From Account No. 1 annexed to this judgment, it can be seen that his entitlement to $50,000 from the estate and his one half share in it well exceeded the amount he laid out for stocks and shares in 1988 and 1989. I accept the defendant's evidence that he only used his own money to buy shares. Moreover, the matter should properly be viewed in the light of the overpayment to the plaintiff since 16 August 1989. The amount overpaid at that time was $124,130.75 according to Account No. 2, and at the end of 1988 the amount due to the plaintiff was $5,934.95 which was a relatively small sum. There is no evidence that the defendant made any profit out of his share investment in the period between 8 December 1988 and 16 August 1989, and there is no evidence to show the amount of profit or rate of profit for the period either. In the circumstances and in the circumstances of all the evidence in this case, especially bearing in mind the plaintiff's unreasonable attitude and behaviour throughout the interlocutory proceedings before me and at the trial, I am of the view that it would not be proper or equitable to allow the plaintiff's claim for sharing in any profit that the defendant might have made from his dealings in shares.

44. The plaintiff used a figure of 1.52 to multiply the resultant sum arrived at after the amount allegedly due to her plus 5.4375% for interest had been multiplied with 1.3 for inflation. She just took two entries in the defendant's savings account, an withdrawal and a subsequent deposit to base her calculations of the proper rate for assessing profit. She referred me to entries on 4 November 1992 when a sum of $180,000 was drawn out from the defendant's savings account to be deposited into the defendant's current account with a cheque drawn therefrom in favour of one Gransing Securities and Investment Co. on the same date, and on 9 November 1992 a sum of $236,667.08 was deposited into the savings account. She did not even attempt to prove any link between these two sums or that the deposit was made from Gransing's payment to the defendant. This was another absolute nonsense. Any attempt on the plaintiff's part to charge profit, let alone profit at 1.52 times of the principal, is rejected.

Expenditure of the Estate

45. The plaintiff denied that she should be liable for one sixth share of the expenses of the estate save for a few items, i.e., the funeral expenses limited to $10,000, the rates for the properties and the legal fees for handling tenancy matters. When cross-examined further, it appeared that she challenged every item of expenditure regarding the amount. She refused to accept the items of expenses of the estate duty, the legal expenses relating to estate duty, the property taxes on the properties of the estate and the expenses for repairs unless defence counsel showed her authority. She disputed the liability for the funeral and burial expenses when shown that the figure on those was over $89,000. The crux of her objections seemed to be that insofar as the amount involved was large, she would challenge the nature of the liability. She tried to premise her demand for authority by relying on my asking her for authority to justify her claim for interest in her opening at about 50% per annum.

46. This is another utter nonsense that I would not waste further time on. The expenditure items and their amounts are set out in Account No. 1 annexed to this judgment, and they are all allowed. I find as a fact that the expenses were properly and reasonably incurred by the defendant on behalf of the estate and I hold that the plaintiff's entitlement to share in the estate must be based on the assets and income of the estate after a reduction is first made with the expenses. The plaintiff is entitled to one sixth of the residuary estate of the deceased, and all the funeral and administration expenses, debts and liabilities, and I find they have been properly and reasonably incurred, must be deducted from the income and assets of the estate before the plaintiff's entitlement can be ascertained.

Payments to the Plaintiff

47. The plaintiff told me that she first discovered that she was entitled to share in the estate when she obtained copies of documents from the Probate Registry of the Supreme Court in May or June 1989. She also went to the Land Registry to make searches regarding the properties of the estate in July 1989. Thereafter she asked the defendant about her entitlement because all along after her mother's death, the defendant concealed her entitlement from her. The defendant when so asked, looked unhappy, and he refused to distribute the estate to her. However, the defendant promised to set up a limited company for the distribution of the estate to all beneficiaries fairly and equally. Although she was suspicious of the defendant, she trusted him because of that promise, which was eventually never kept.

48. The plaintiff admitted that she was paid $150,000 by the defendant on 16 August 1989. She denied that a number of deposit slips showing deposits of various sums into her bank account from 1987 to June 1989 belonged to the defendant although they were produced by him. She told me that the deposits evidenced by those slips were made by either herself personally or by someone else in the factory at which she worked on her behalf. After some quibbling she confirmed that the sums represented her salaries. When confronted with the entries in the defendant's account passbook corresponding both to the dates and sums of a majority of the deposits shown on the slips, she said it was mere coincidence that the defendant withdrew identical amounts from his bank accounts on the same dates. She also directed my attention to several entries in the passbook of identical sums withdrawn by the defendant on different dates, to demonstrate that it was not unusual for the defendant to withdraw sums from his account. At first she said that the defendant took the deposit slips from her own possessions without her consent, but later, she appeared to change somewhat to say that she did not know how the defendant got hold of the slips.

49. There was a deposit slip showing that a deposit of $23,000 was made into the plaintiff's Citibank account. The photocopy of the slip did not show very clearly the date written presumably by the person who made the deposit. However, the date stamped on by the bank reads "6/12/89". The plaintiff told me that this date caused her great alarm and suspicion because she was in England in December 1989, and she obtained a letter from Citibank to show that her account was closed in November 1989. The defendant therefore could not possibly have deposited the sum into her account in December 1989. When it was suggested to her that the stamped date would mean 12 June 1989 in the American way of writing dates, she refused to accept. She later referred me to another Citibank deposit slip showing a stamped date of "21DEC95" to demonstrate that that bank also stamped dates in the same way as the English. When the original of the slip was produced in cross-examination, with the written numerals on it being "6" after the print "Month", "12" after the print "Day" and "89" after the print "Year", the plaintiff insisted that they were not clear. She was then taken to the defendant's account statement showing a withdrawal by cheque of $23,000 on 12 June 1989 with the cheque number recorded. When she was asked to compare this cheque number with that shown on the deposit slip, she said that one numeral in the six-digit cheque number on the deposit slip was illegible although the other numerals all matched. She still refused to accept that the amount had been paid into her account.

50. It was only after over two days in cross-examination that she started to tell me a story about this $23,000. She said after her checking the documents, including the documents in the ten bundles of documents she filed with the court for the trial and the documents she obtained from the Probate Registry and the Land Registry that she remembered that the defendant wanted her to communicate with him while she was in England which she was planning of going to for furthering her study, and for that purpose the defendant made her a gift of a portable telephone. The sum of $23,000 was paid to her for buying the gift and accessories. She purchased a portable phone in Hong Kong worth about $23,000 and brought it to England. But she could not use it in England and so she had eversince never used it. When I asked her to identify any document which she checked showing this sum or a portable telephone, she failed to do so. After some prevarication, she told me that when she checked her documents the night before by opening her luggage, she also found the portable telephone which jogged her memory. I do not believe her. All along she denied that the sum of $23,000 was ever paid into her Citibank account, and even producing the letter from Citibank to show the impossibility of the amount being paid into her account when it was closed in November 1989. She had told me that she obtained documents from the Probate Registry in May or June 1989 and conducted land search on 13 July 1989. She refused to accept the clear date shown on the original of the deposit slip, and refused to acknowledge the withdrawal by cheque of the same amount by the defendant on the same date. She did not refer to any telephone when she was asked to identify the documents that she had checked which she alleged to have jogged her memory. Her memory, as she said in evidence, was all about the timing when she discovered that she was entitled to share in the estate. Had she been truthful about this portable telephone, she would not have failed to remember it when I asked her what jogged her memory relating to it. I am firmly of the view that the plaintiff invented stories as she went along in the witness box. It is difficult to believe that when she felt that the defendant did not wish to distribute anything from the estate to her in June 1989, he would be agreeable to make her a sizable gift of $23,000 or a portable telephone of that value. The defendant was careful with money, as is borne out by his letter of 2 January 1991 to the plaintiff refusing her suggestion to visit England, so as to save money. It is most improbable that he would make such a gift of an expensive item to her. Moreover, from the plaintiff's point of view, she had been at the most earning slightly over $8,000 a month in 1989 after fourteen years of working all kinds of job. It is improbable that with that sort of salary that she was earning and with the meagre savings that she had, she would have the effrontery to ask the defendant for such an expensive gift.

51. In all the circumstances, I find as a fact that all the payments as evidenced by the deposit slips had been made by the defendant to the plaintiff.

52. The plaintiff admitted that she received various amounts through telegraphic transfer caused to be made by the defendant ("the TTs") while she was in England. All the TTs were set out in exhibit MP-1 to her affirmation filed on 25 November 1995. However, she refused to accept that there was a TT on 25 February 1990 for $15,207 which she had admitted in the exhibit until she was shown a copy of the relevant TT instructions by counsel for the defendant. The result was that all the TTs were admitted. The amounts of the TTs are set out in Account No. 2.

Overpayments to the Plaintiff

53. In the plaintiff's calculations of the amount allegedly owed by the defendant to her as her one sixth entitlement in the estate, i.e., exhibit P1, there were overpayments after she took into account the TTs totaling $175,000 made by the defendant to her in 1990 and TTs totaling $180,130 to her in 1991. These overpayments were arrived at after taking into account her entitlement in the estate and the payments made to her by the defendant, over a period of time. However, when she re-did her calculations a number of times, in the forms of exhibits P2, P4 and P5, these overpayments faded except that only once that she was overpaid, which was in the period between September 1990 and August 1991 on page 2 of exhibit P2. She said if ever she was overpaid, the defendant made the overpayment as a gift to her. Her basis was that any overpayment was voluntary and insofar as it was made, the defendant owed a legal duty to pay that sum to her because he had already paid her. She gave an example: "Just like somebody paying a sum to a charity, it must be a gift." After many questions from counsel, she agreed that she made requests to the defendant every time for the exact amount to be remitted to her, for her tuition fees and living expenditure in England. Yet she still maintained that the defendant voluntarily made the payments to her. She told me that she did not know the exact amount of her entitlement and therefore she always thought that the defendant's TTs were merely her entitlement or part of her entitlement in the estate. If the defendant chose to overpay her, then the overpayment was a gift.

54. She also relied on the presumption of advancement and the Chinese letter dated 2 January 1991 written by the defendant to her, which stated that he did not wish to spend money to visit England at the request of the plaintiff because he had to support financially all his children. In 1990, the plaintiff was 35 years. She kept on requesting the defendant to make remittances to her. In two Chinese letters she wrote on 25 May 1990 and in April 1991, she was talking, inter alia, about remittances, and she wrote “日後學成，定當歸還"and "懇請幫忙！日後定當歸還" She told me that her own translations were to the effect that she would return to Hong Kong after her study in England. She had submitted her translations for court certification but the translator, being allegedly untrained in law and not apprised of her particular situation, refused to certify them. At my request, she eventually produced as exhibit P3 the certified translation that she had obtained of her letter of 25 May 1990. She also claimed that the translations of the defendant's solicitors, to the effect that she would certainly make repayment, were false. My court interpreter's translation was "Will definitely be repaid" The plaintiff's attempt to pull wool over everyone's eyes, be it intentional or otherwise, is rejected.

55. She also disputed that any subsequent overpayment could be applied towards repayment of the alleged debt due to her from the defendant or the estate in respect of an earlier period in her accounting. I hope I would not be considered too harsh to record that the plaintiff had uttered the most grotesque nonsense ever in my practice in law as counsel and judge for over a quarter of a century!

56. There is little evidence from the plaintiff as regards the alleged presumption of advancement save the relationship between daughter and father. The father's statement in his letter of 2 January 1991 that he had to support his children financially did not help the plaintiff, for he did remit money to her and that could not properly be stretched to mean that he was making gifts to her. I find the defendant's evidence much more acceptable that there was no gift and no gift was ever intended by him. He told me that if the payments to her in Hong Kong between 1987 and 1989 were gifts, he would not have kept the deposit slips, and that the amounts of the TTs to the plaintiff were paid because of the plaintiff's requests that she needed the money in England. The plaintiff's allegation of a gift is also contradicted by her own allegation that the defendant concealed her entitlement from her and did not wish to distribute anything to her. The defendant could not in such circumstances have intended any gift to her. I find as a fact that the defendant provided the plaintiff sums of money as shown in Account No. 2 annexed hereto, and any surplus over her entitlement in the estate was not intended as a gift from the defendant to her, but rather as an advancement from the estate to her. The estate at the material times still had landed properties unsold, and the plaintiff's interest in such properties exceeded the excess amounts remitted to her. She was every now and then urging the defendant to send her money, and the defendant complied because he was expecting to recoup any overpayment from her share in the estate when the accounts were eventually and finally settled. Based on the annexed Account No. 2, I find as a fact, and on proper and reasonable calculations, that at the time of this judgment, the plaintiff owed to the estate $537,048.48. The defendant is entitled to recoup this sum from the plaintiff for the estate as administrator of the estate.

The Illegal Transfers to Other Beneficiaries

57. The plaintiff also complained that the defendant was acting unfairly when he made four payments to her brothers within a short period. She called them "illegal transfers". She was referring to two payments of $500,000 each allegedly made by the defendant to Mui Kwan Shing on 15 May 1995 and 1 June 1995 and two other payments of $300,000 each to Mui Kwan Shing and Mui Kwan Wai on 27 June 1995. She described those as illegal payments because the defendant had treated her unfairly and unequally for not making any payments to her during that period. Even when shown confirmations, exhibits D1A and D1B, in respect of two time deposits of $500,000 each on the exact dates when those amounts were withdrawn from the defendant's bank account, and that sums identical to the principal plus interest earned on the time deposits were deposited into the defendant's account after the relevant time deposit periods, the plaintiff adamantly refused to accept they were time deposits set up by the defendant and not payments to Mui Kwan Shing.

58. I find that the defendant did establish those time deposits. Whether the defendant paid the other beneficiaries any sum, insofar as the plaintiff was fully paid her own entitlement in the estate, is anyhow none of the plaintiff's concern. She was merely trying to smear the defendant by exploiting these alleged payments as evidence of impropriety against the defendant with a view to seek sympathy from the court. As with the term "embezzlement", she abused the term "illegal transfer" that she learned in her five years of studying law in England.

The Proper Accounts

59. From all the evidence before me, I have worked out proper and reasonable accounts, on a yearly basis starting from the death of the deceased up to the end of December 1996, which are annexed hereto as "Account No. 1" and "Account No. 2" showing respectively the income and expenditure of the estate and the amounts due to or owed by the plaintiff. The figures in brackets are negative figures. These accounts and all their contents form part of this judgment. The incomes of the estate are founded on the actual and evaluated rentals received or treated as ought to have been received by the defendant for the estate throughout the period. The evaluated rentals are based on the valuations made by surveyors employed by the plaintiff, as the defendant did not dispute them.

60. The plaintiff's calculations either submitted to me in her opening speech or in her evidence, including exhibits P1, P2, P4 and P5, are all rejected. The bases for her calculations indicated to me that she was a miserable shame to all her education in the law and in accounting, and that she was the incarnation of avarice.

61. She started off by taking the rentals from the three properties owned by the estate supposedly generously from the second day following her mother's death, i.e., 16 February 1987, ignoring that the rentals were due on the first day of the month and no rentals for February 1987 could reasonably be taken into account as having been received by the defendant. This she later altered to start from March 1987 instead. She added up the rentals, whichever was the larger of the actual and evaluated amounts, from the three properties, which were the only income available to the estate, from 1 March to the end of 1987, very conveniently omitting the expenses on the basis that it was for the defendant to prove each item of expenditure. She arrived at a figure of $276,000 from March 1987 to the end of 1987. This figure was correct calculation-wise. However, she added interest at 5.4375% per annum for the year of 1987. She then multiplied the figure so obtained by 1.3 (i.e., 30% added) as her alleged entitlement due to inflation. The resulting sum was carried forward to the next period in 1988, with the same addition of 5.4375% interest and 30% inflation, and the resulting sum further multiplied by 1.52 to take into account alleged profits derived by the defendant from his share investments. The same rigmarole was repeated with the same interest rate and multiplications for inflation and profit up to June 1989 when she allegedly learned of her entitlement to share in the estate. The sum arrived at was $441,150.58 (see page 1 of exhibit P2).

62. That, however, was not the end of the plaintiff's greed. From the sum of $441,150.58, the plaintiff deducted $150,000 that was admittedly paid to her by the defendant on 16 August 1989, arriving at a sum of $291,150.57 which she alleged the defendant owed her. She told me that this sum could not be properly carried forward against payments made subsequently by the defendant by the TTs to her in England during her stay there from September 1989 to December 1994, on the nonsensical ground that the sum was a money debt that could not be off-set by subsequent payments of the defendant because such subsequent payments were her periodical entitlements in the estate. This alleged debt of $291,150.57 was then treated as a debt separate from her entitlement in the estate and went on to be calculated up till December 1996 applying the same compound effect of added interest, inflation and profit. If the plaintiff's ways of adding interest, inflation rate and profit rate to a debt is adopted, a sum of $100 after a year would become over $208. If the astounding effect of her calculations may still not be felt, then one will simply need to look at page 1 of exhibit P4 to see the resulting debt calculated as allegedly owed to her, stemming from $291,150.57 in August 1989 up to the end of 1996, a period of 6 1/2 years, applying her absurd bases. That would be a sum of over $50 million.

63. She used the same bases to arrive at various alleged debts owed her by the defendant for various periods, showing the grand total of $56,353,422 on page 5 of exhibit P4. Even as greedy as the plaintiff, she was, quite out of character, agreeable not to pursue her claim on these figure, but on the ground that the defendant could not possibly pay. She was content to charge the alleged sums owed, which were arrived at by applying her method of adding interest, inflation and profit in a compounding way up to each yearly period starting from June 1989, and then thereafter only with interest and inflation added but without profit. Those sums are shown in exhibit P5.

64. All the plaintiff's calculations, bases, allegations and evidence, save that she obtained legal aid and save her demand for accounts in the first half of 1995, are rejected. For the sake of fairness, except for the period between 1 March and 31 August 1987 in respect of 371 G/F, I accept the market rentals of Flat E and 371 G/F as shown on the plaintiff's valuation reports. Account No. 1 and Account No. 2, which are annexed to and form part of this judgment, are arrived at on the facts as I find.

CONCLUSIONS

The Claim and the Counterclaim

65. I dismiss the plaintiff's claim. I also give judgment for the defendant as the administrator of the estate on his counterclaim in the sum of $537,048.48, with no interest until the date of this judgment, but with interest thereafter at the appropriate judgment rate until payment. I have heard the parties on costs; I order that the plaintiff do bear the costs of this action and the costs of the counterclaim, which are to be taxed and payable to the defendant as administrator of the estate.

The Moneys in Court

66. Only one property now remains in the estate, which is 371 G/F. In November 1996, the defendant sold Shop 4. Pursuant to my Order dated 19 July 1996 as amended by my Order dated 2 August 1996, the defendant paid two sums into court out of the net proceeds of sale of Shop 4, namely, $1,548,130.70 being one sixth of the net proceeds ("the first sum") and $800,000 being part of his one half share in such proceeds ("the second sum"). By Order made on 6 December 1996, I allowed $50,000 out of the first sum to be paid out to the plaintiff, and by Order made on 12 December 1996, I allowed a further sum of $900,000 from the first sum to be paid out forthwith to the plaintiff. As there is still a principal sum of $598,130.70 remaining in the first sum, I hereby order that this sum and all the interest earned to remain in court for 14 days, and unless the defendant seeks enforcement of the judgment sum in his favour against the resulting amount in court within 14 days, it be paid out to the plaintiff. I also order that the principal of $800,000 in the second sum together with all interest earned be paid out to the defendant forthwith without any stay.

The Restraint on the Power of Sale

67. I discharge my Order dated 19 July 1996 as amended by my Order dated 2 August 1996. Having heard the parties and made the findings in this judgment, I do not feel that the defendant, who is found not to be guilty of any wilful default or dereliction of his duties as the trustee, should in any way be restrained in the exercise of his power of sale in respect of the remaining property in the estate, i.e., 371 G/F. There is therefore no further restraint or condition imposed by the court on the defendant's right as an administrator and trustee to sell 371 G/F.

The Order for Interim Payment

68. As the parties' rights and liabilities up to 31 December 1996 are all resolved by this judgment, ex abundanti cautela, I declare that the interim payment order made by Yeung J. on 8 February 1996 shall from the date hereof cease to have further effect.

Previous Orders for Reserved Costs

69. A number of interlocutory orders were made whereby costs were reserved, namely,

(a) Order dated 11 March 1996 made by J. Chan J.,

(b) Order dated 19 March 1996 made by J. Chan J.,

(c) Order dated 26 June 1996 made by J. Chan J.,

(d) Order dated 2 July 1996 made by myself,

(e) Order dated 19 July 1996 made by me, and

(f) Order dated 2 August 1996 made by me.

The plaintiff has specifically mentioned in her opening that the costs reserved by those orders were in issue.

70. The first two orders, those dated 11 and 19 March 1996, related to the discovery and inspection of documents. I am of the view that there is insufficient evidence regarding whether the costs on those occasions should be awarded to one party or the other. Considering all the available material before me, the proper order should be, and I hereby so make, no order as to costs of and occasioned by the applications and appearances resulting in the making of those two orders.

71. The other four orders were made as a result of the defendant's application to sell the remaining properties of the estate. The plaintiff, as I said before, altered her stance as evidenced by the relief sought in the originating summons and opposed the application. The defendant eventually obtained the order dated 19 July 1996 from me whereby I imposed conditions on the exercise of his power to sell. The order dated 2 August 1996 was to amend the order dated 19 July 1996 for correcting a slip in the approval of the earlier order drawn up by the plaintiff. Shop 4 was sold and pursuant to the amended order, the defendant made payments into court. In my judgment, having considered all the circumstances, the proper order for costs relating to these four orders should be that the defendant's costs be borne out of the estate, and no order is made regarding the plaintiff's costs. I so order.