SHALINI NARESH KUMAR BASANT v. STEVENSEC SERVICES LTD

HCMP 57/2024

[2025] HKCFI 1442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 57 OF 2024

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DECISION

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A. Introduction

1.  Before me are:

(a)  the Applicant’s application by summons of 7 March 2024 (the “Amendment Summons”) to amend the Originating Summons taken out on 11 January 2024 (the “OS”) as per the draft attached (the “OS AS Version”),

(b)  the parts of the Interveners’ summons of 15 March 2024 (the “Interveners’ Summons”) that have not been adjudicated upon (namely whether the summarily assessed costs for the Joinder Application (the “Joinder Costs”) should be paid forthwith, and the “Conversion Application”); and

(c)  the Applicant’s Notice of Appointment to Hear Originating Summons of 5 April 2024 (the “Notice of Appointment”), for inter alia orders that the Amendment Summons be granted, the Interveners’ Summons be dismissed, and directions for further conduct of the OS. 

B.  Background in summary

2.  This action centres around a family trust (the “Trust”) set up some years ago for members of the Shahani family.  It has a number of underlying companies, some incorporated in the BVI, and some in Hong Kong (“Underlying Companies” or “Group Companies”).  Assets are held via the Trust.

3.  The Applicant, the 1^st Intervener (“Rajan”) and the 2^nd Intervener (“Dilip”) are siblings.  Rajan and Dilip are brothers (“Brothers”). The applicant is their sister.  I will refer to their mother as “Mother”. The 3^rd and 4^th Interveners are Rajan’s children (together with the Brothers, collectively the “Interveners”).  The Applicant and the Interveners are 5 eligible beneficiaries of the Trust. 

4.  The Respondent is a corporate, secretarial and trustee service company wholly owned and managed by the law firm Stevenson, Wong & Co (“SWC”). It is the Appointor under the Trust (“Appointor”).  It was appointed in 2002.  The Interested Party is the Trustee of the Trust (the “Trustee” or “Mr Yuen”).  He was appointed pursuant to the Order of Recorder Rachel Lam SC Court of 20 January 2023 in HCMP 420/2021 (the “Trustee Action”, and the “Trustee Order”)[1]. He replaced Sovereign Fiduciaries (Hong Kong) Limited (“Sovereign”), which the learned Recorder discharged at the same time.

5.  Under the relevant Trust Deed, certain (in fact a lot) of the Trustee’s powers under the Trust can only be exercised with the “Necessary Sanctions” by the Appointor.  In the Trust Deed, the phrase “‘with the Necessary Sanction’ means so long as there shall be in existence an Appointor with the prior written consent of the Appointor or if more than one Appointor, of all the Appointor but otherwise means in the absolute discretion of the Trustee.”[2] The Appointor has also the power to remove existing trustee(s) or appoint new one(s)[3].

6.  Upon the Trustee’s appointment, he has made to the Respondent a number of requests for Necessary Sanctions for a number of matters.  Those requests have been summaried by Mr Cheng Yim Poon (“Mr Cheng”), a partner at SWC, in his affirmation filed on behalf of the Respondent (see Sections E1 to E5 in particular).  Those matters include:

(a)  The Trustee’s proposal to charge on a time-spent basis;

(b)  The Trustee’s proposal to appoint legal advisors on continuous and ongoing basis;

(c)  The conduct of investigations into (i) whether the Mother was also a de facto settlor and if so, what letter of wishes should be taken into account; (ii) the Applicant’s Complaint of (a) Rajan’s utilization of funds as a director of the Underlying Companies; (b) the lack of declaration of dividends since 2019, and (c) the resettlement of the Trust with the assistance of Sovereign;

(d)  The Trustee’s attempted appointment of himself onto the board of the Underlying Companies; and

(e)  The Trustee’s attempted appointment of himself as an authorized bank signatory.

7.  The Trustee and the Respondent had engaged in extensive correspondence over those requests.  The Respondent has not provided the Trustee with the Necessary Sanctions requested.

8.  By the OS, the Applicant seeks the discharge of the Respondent as the Appointor (§5).  It seeks also a number of Declarations, to the effects that (1) some or all of the Appointor’s powers under the trust are “fiduciary” (§1), (2) that the Respondent has a potential or actual conflict of interest in so acting, on the basis that SWC have been acting for the Brothers in a matter in which the Applicant “might be an adverse party; and/or … there is a current and unresolved dispute between the Applicant and the Brothers in, … the matter of the proper administration of the Trust” (§2), (3) the Respondent has acted in breach of its fiduciary duties by declining to give the Trustee certain Necessary Sanctions, and that “the Respondent has thereby in effect sought to stymie, impede, and/or frustrate: (1) the rightful exercise by the Trustee of its fiduciary powers and the proper discharge of its fiduciary duties; and (2) the purpose and intent of the Trustee Order” (§3), and (4) the Respondent has otherwise breached its fiduciary duties by failing to act impartially with respect to the administration of the Trust, namely by unduly preferring the interests of the Brothers to those of the Applicant (§4).

9.  The OS is supported by the Applicant’s first affidavit.  A large number of allegations have been made therein.  A lot of them are serious ones against the Respondent (including SWC) and the Brothers.  Below are some examples:

… [Mr Yuen] has at each stage been stymied by the refusal of the Respondent to provide the Necessary Sanction.  In that regard, it appears to me the Respondent has in effect succeeded to Sovereign’s role as an advocate for Rajan and Dilip.  I am advised and believe that the Respondent has not acted with the impartiality and loyalty that one might expect from a fiduciary in the context of the administration of a trust. (§35)[4]

… Mr Yuen has been unable to obtain Necessary Sanction from the Respondent to even begin to conduct his inquiries into the history and management of the Trust and properly obtain oversight and control over the Trust Fund.  As I believe should be clear from the contents of the correspondence that I have exhibited, the Respondent is pursuing its own interests and/or the interests of Rajan and Dilip to the detriment of mine by refusing to collaborate with Mr Yuen and, in effect, frustrating the order of this Court in the Trustee Action. (§37)[5]

… the Respondent is for all intents and purposes a de facto ally of Rajan and his ‘camp’.  Consequently, I believe that the Respondent could be seen as acting, in effect, to frustrate the order of the Court in the Trustee Action.  I am, with respect, startled that a professional trust services provider whose directors are partners of a prominent firm of solicitors in Hong Kong (who I understand are also officers of the Court) should act in that manner. (§45)[6]

… I believe that the Respondent is entrenched in its position, despite being a fiduciary, most likely because: (1) it considers Rajan to be its ‘true’ client and the rightful controller of the Trust (despite the Trust being discretionary); and (2) it and SWC stand to derive financial benefit from continued collaboration with Rajan, including remuneration on an hourly basis and further instruction from Rajan and LSL[7] to SWC as their solicitors.  In that regard, I verily believe that the Respondent is nothing more than the alter ego of SWC, as it does not appear to have any directors or agents who are not partners and/or employees of SWC. (§57)[8]

Rajan has engaged, and continues to engage, in a pattern of behaviour that credibly leads me to believe that he wishes to continue to control the undertaking of LSL himself, and primarily for his benefit (and, more broadly, the benefit of his ‘camp’).  He now appears to be using the Respondent as a smokescreen to perpetuate a state of affairs that is favourable to him: that is, managing the business of the companies held on Trust at his discretion and without interference from Mr Yuen as Trustee. (§58)[9]

That is, in summary, why the continuation of the Respondent in the role of Appointor is fundamentally unsatisfactory.  I am advised and believe that I am as an Eligible Beneficiary entitled to credible assurances that the Trust will be properly performed, in an impartial manner, starting from the fundamental principle of equality between Eligible Beneficiaries. (§59)[10]

I jump slightly ahead and observe that similar allegations were repeated and maintained in the Applicant’s 2^nd affidavit filed in reply – see in particular §§7 and 8 thereof.

10.  On 7 March 2024, the Applicant took out the Amendment Summons.  The OS AS Version was attached thereto.  A new paragraph 6 was proposed to be inserted[11], in the following words (underlining added for ease of presentation):

6.  If and to the extent that the Court does not consider it to be just and convenient in the exercise of its equitable jurisdiction to discharge the Respondent as Appointor, directing the Appointor to give forthwith to the Trustee the “Necessary Sanction” to do each of the following on such terms as the Trustee thinks fit or otherwise subject to such conditions as the Court may specify:

i.    Appoint and remove directors of any of the companies whose shares are held, directly or indirectly, in the fund of the Trust (the “Group Companies”), including without prejudice to the generality of the foregoing to appoint himself a director of any such Group Company;

ii.   Instruct solicitors and/or counsel in Hong Kong and/or the British Virgin Islands to: (a) investigate the terms and relevance (if any) to the performance of the Trust of the various letters of wishes addressed to the Trustee; (b) take advice on his rights and obligations as a shareholder and/or director in those jurisdictions, and on the rights and obligations of third parties with respect to each Group Company to the extent that these are reasonably relevant to the proper performance and administration of the Trust and to be indemnified from the Trust fund for those purposes;

iii.  Secure proper remuneration for himself as Trustee of the Trust in accordance with its terms;

iv.  Investigate the Applicant’s complaints in the matter of the management of any or all of the Group Companies by their respective directors and agents;

v.   Appoint himself as a signatory to the various bank accounts held by the Group Companies; and

vi.  Liberty to apply to the Court for further directions at the expense of the Trust Fund; and

A declaration that the prior refusal by the Respondent to give the “Necessary Sanction” to any or all of (i) – (v) above was in breach of the Respondent’s fiduciary duties; …

11.  When the Applicant first took out the Originating Summons, she only named as parties the Respondent and the Trustee (the latter as the Interested Party).

12.  Subsequently, the Interveners’ took out the Interveners’ Summons and made the Joinder and Conversion Applications.

13.  By Order of 15 April 2024, Deputy Judge KC Chan allowed the Joinder Application.  He ordered that the Joinder Costs be borne by the Applicant.  The Conversion Application was at the same time adjourned.  The Amendment Summons also had not been adjudicated upon.  The learned Deputy Judge subsequently on 13 December 2024 summarily assessed the Joinder Costs at HK$420,000. He at the same time directed that the question of the time for payment of the same be reserved to this Court. 

14.  Also on 15 April 2024, the learned Deputy Judge directed “the Applicant do lodge and serve a Particulars of Claim (i) setting out each matter that Necessary Sanction ought to have been, but failed to have been given by the Appointer and setting out succinctly all the factual allegations, material facts and legal proposition and clauses in the trust deed in support of her case that the Appointer ought to have given such Necessary Sanction and (ii) setting out in detail and full terms of the direction(s) the Applicant is asking the Court to make in this case.”

15.  The Applicant’s Particulars of Claim subsequently filed is dated 27 May 2024 (“Particulars of Claim”):

(a)  It is a 22-page document;

(b)  Whereas the Applicant claims that “the Applicant does not require the Court to make any determination on the extent to which her complaints against any of Rajan, Dilip, and/or any other Intervener are substantially made out” (§1(c)), she claims at §1.d. that the “conduct of [the Respondent] and its fitness to act as Appointor are the only issues that the Court has been asked to adjudicate”; 

(c)  The last paragraph thereof (§19) says that:

It is recognised that the specified and/or particularised scope of the Applicant’s application above will, as a matter of best practice, entail further amendment to the Amended OS.  The Applicant will accordingly apply for leave to vary the Amended OS on the basis of the above at the appropriate time or otherwise as directed by the Court.

16.  The Applicant has so far made no formal application to have the Amendment Summons withdrawn, amended or otherwise replaced, despite what she has said at §19 of the Particulars of Claim.  Instead, Mr Mariani has enclosed in his written submissions an “Amended Originating Summons” (the “OS Submission Version”).  The OS Submission Version is different from the OS AS Version, and apparently supersedes it.  The principal difference between the OS Submission Version and the OS AS Version are:

(a)  The addition of the conjunctives “and/or” between a number of paragraphs;

(b)  The deletion of §5 asking for discharge; and

(c)  The deletion of the part of §6 of the OS AS Version which I underlined above.

As we shall see, even the OS Submission Version is not the version which the Applicant is now seeking to rely on.

C.  Whether the Joinder Costs be paid forthwith

17.  This Court has in Chen Hongqing v Liu Yiu Keung Stephen [2021] HKCFI 440 (§§24-26) considered the scope and the operation of RHC O.15, r.6(2)(b).

18.  I have set out above what the Applicant seeks in the OS.  She seeks an Order that the Appointor be discharged.  That directly affects the Interveners’ interest in the administration of the Trust.  The Declarations sought also otherwise bear upon them.  The Applicant is described, vis-à-vis a matter between her and the Brothers, as an “adverse party”.  The Brothers’ interests are said to have been preferred by the Appointor.  Serious allegations have been made against the Brothers.  Given the wide scope of RHC O.15, r.6(2)(b), and the nature of the relief which the Applicant is seeking, I am of the view that the Interveners ought clearly have been joined to start with.  Mr Mariani’s submissions that the Applicant is not seeking any relief against the Interveners in my view misses the point entirely.

19.  Not only did the Applicant fail to join the Interveners, she resisted the Joinder Application.

20.  The Joinder Application has been allowed.  It is a discrete application.  The Joinder Costs have also been summarily assessed. 

21.  I have considered Mr Mariani’s submissions on this issue at section F of his written submissions:

(a)  Dealing with his submissions at §59(3) first, wherein he says “it is denied, with the greatest respect for the Judge’s decision in the Joinder Application, that the Applicant’s resistance thereto was unreasonable”, I am of the view that the learned Deputy Judge was correct in that view.  I am of the view that the resistance of the Joinder Application was unwarranted;

(b)  Mr Mariani further submits, and highlighted orally in the course of the hearing, that it is yet unclear which party or parties would have to bear the costs of the substantive application, and that in any event, the costs may be borne and paid out of the Trust.  He submitted that the Applicant’s application by the OS is for proper administration of the Trust.  He refers to Re Buckton [1907] 2 Ch 406 as explained in Lewinon Trusts 20th Edition at §§48-033 – 48-041.  He submitted that the application falls within class (2) of the categories for the incidence of trust litigation costs;

(c)  I do not accept those submissions.  Firstly, as I have observed above, the Joinder Application is a discrete application.  That was made as a direct consequence of the Applicant choosing not to name the Interveners in the OS. The incidence of costs of the substantive application has little to do with it;

(d)  I have set out some of the allegations that the Applicant has made against the Respondent (including SWC) and the Brothers.  I accept Mr Fung submissions that the proceedings, and more importantly the resistance of the Joinder Application, has the character of a hostile claim, so that it falls within class (3) of the categories.  I so find for the purpose of the present exercise.

22.  I have considered the Final Report of the Chief Justice’s Working Party on Civil Justice Reform (§§529-530, also referred to Hong Kong Civil Procedure 2025 §62/9A/1).  I have also considered Wing Fai Construction Co Ltd v Yip Kwong Robert (No 2) (2012) 15 HKCFAR 454 at §5. Immediacy is indeed a feature of summary assessment.

23.  On the facts of the present case, I am of the view that immediate payment of the Joinder Costs is clearly called for. 

24.  For the above reasons, and in the exercise of my discretion on costs, I order that the Applicant shall pay the Interveners the Joinder Costs forthwith.

D.  The Conversion Application

25.  I have considered parties’ submission, both written and oral.  I have considered the law cited to me, which include Young’s Engineering Co Ltd v The Hong Kong and Shanghai Banking Corp Ltd (HCMP 2676/2002, 18 June 2004) at §9, IO of Foo Hoo Centre v HK Alliance in Support of Patriotic Democratic Movements of China [2016] 1 HKC 517 at §10, Lam Pak Cheung v Lin Zhen Lue [2009] 1 HKLRD 35 at §49, Industrial and Commercial Bank of China (Asia) Ltd v Tse Ching [2022] 5 HKLRD 284 at §§18 and 31, Tsang Wing Kwai v The Personal Representative of the Estate of Chan Chung Han, the Deceased (CACV 216/2015, 9 May 2016), Szeto Yuk Lin v Kanton Ltd (HCMP 251/2016, 6 October 2017), and Re Estate of Chiu Keung [2020] 3 HKLRD 779.  I remind myself in particular the observations of Chu JA (as the V-P then was) in §59 of the last case mentioned above, which Mr Mariani highlights.  The applicable principles are not in dispute.  I will not repeat them.

26.  For the following reasons, I accede to the Conversion Application:

(a)  Mr Mariani first submits that the default originating process for an application under O.85 is originating summons.  He refers to Hong Kong Civil Procedure 2025 §85/2/17;

(b)  Where the default position lies is neither here nor there.  In any event, that same paragraph of the White Book which Mr Mariani relies on explains also that:

… when there are serious issues regarding whether certain assets form part of the estate, particularly when complicated factual issues are raised and examination of evidence of the witness is necessary, it is not appropriate to proceed in such manner.

(c)  The Applicant’s case even at this stage is still evolving.  It is entirely unclear as to what facts she is seeking to rely on to get the relief sought.  I have summarised above the contents of the OS, the OS AS Version, the Particulars of Claim, and the OS Submission Version;

(d)  In the Particulars of Claim, whilst the Applicant claims that she is not seeking any determination on the extent to which her complaints are substantially made out, she says at the same time that the conduct of the Respondent and its fitness to act as the Appointor are in issue;

(e)  The conduct of the Appointor are clearly in issue.  The Respondent was the one who has been appointed as the Appointor.  Not the Court.  The Court cannot compel him to exercise his powers under the Trust Deed unless he has been in breach of his duty, in circumstances and such that the Court should step in;

(f)  That has in fact been how Applicant’s application, as can be gleaned from the OS, the OS AS Version, and the OS Submission Version, flows and is premised upon: that the Appointor’s powers are that of a fiduciary, that he has potential or actual conflict, that he has been acting in breach of his fiduciary duties, and that he has otherwise been partial.  There are all intermediate findings which she invites the court to find and rule in her favour, such that the she can then invite the court to grant her the ultimate relief she seeks, ie, that the Appointor be discharged, and/or that he has to be compelled to give the Necessary Sanctions requested;

(g)  This Court ought not compel the Respondent to give those Necessary Sanctions merely because the Applicant has made complaint to the Trustee, as Mr Mariani has maintained[12]. The Court has to make factual findings as to whether the Respondent has been in breach, and if so, bearing in mind the facts found and the applicable law, whether to step in;

(h)  Mr Fung has in the Annex to his written submissions identified 14 examples of disputed facts.  I do not recite them all.  I highlight some of them: whether the Interveners have breached fiduciary duties as directors of the Underlying Companies so as to warrant investigation[13]; whether absence of declaration of dividends warrants investigation; whether the Respondent should have on the facts given the Necessary Sanctions for the Trustee to be appointed directors and bank signatories; whether the Respondent had colluded or acted partially in favour of the Brothers; and whether the Respondent has conducted itself as “de facto additional Trustee”;

(i)  The theme under those issues is unified – without considering and making findings of the underlying facts, this Court has no basis to consider whether it should step in;

(j)  At §38 of his affirmation[14], Mr Cheng on behalf of the Respondent says as follows:

Since Mr. Yuen’s appointment in 2023, the parties have been embroiled in rounds of correspondence regarding a series of requests raised by Mr. Yuen, [the Applicant], Rajan and Dilip.  The Respondent denies that it has (i) ever acted as an advocate for Rajan and Dilip or had otherwise acted partially and (ii) not acted with the impartiality and loyalty that one might expect from a fiduciary, as explained below.  At all material times, the Respondent adhered to its duties impartially and objectively under the terms of the Trust Deed.  The Appointer will fail in its duty if, as [the Applicant] or any other concerned party might hope or wish, the Appointer accedes to any request or demand purportedly made to it by [the Applicant] or any concerned party without making its own assessment and judgment.

(k)  The Respondent has denied the factual allegations made against him.  Its position is that it has made its own assessment and judgment before deciding not doing at this stage what the Applicant is now seeking this Court to summarily compel it to do.  That position does not appear to me to be erroneous.  Resolution of disputed facts is necessary before this Court can decide whether to step in;

(l)  Mr Mariani in §42 states reasons why he submits none of the 14 issues Mr Fung has identified “any matter relevant to the specific reliefs sought by the Applicant.”  I have considered them.  I do not accept his submissions. His main theme is to divorce the relief which the Applicant is seeking from the underlying facts.  His reply to Issue 1 framed by Mr Fung is illustrative, where he submits “This is irrelevant to the disposal of the Application because the only matter before the Court is whether Mr Yuen should have obtained the Necessary Sanction to investigate a complaint brought by the Applicant as an Eligible Beneficiary, without prejudice to the ultimate outcome of any such inquiry”.  That theme is in my view neither correct nor justified.  I also reject his submissions that certain of the issues are otherwise pure points of law;   

(m)  Mr Mariani relies heavily on the Trustee Action and the Trustee Decision.  He submits that somehow, a prima facie case has been made out for investigation by the Applicant, so that the Trustee should investigate, such that the Appointor should give the Necessary Sanctions.  He refers to §51(5) of the Trustee Decision.  I have considered the same.  The learned Recorder only observed that certain matters mentioned therein “raises queries on the part of the Applicant”.  That is far removed from any finding of any “prima facie merit”, as Mr Mariani calls it at §24 of his written submissions;

(n)  In any event, as Mr Fung submits[15] which I accept, the Applicant cannot merely rely on any alleged prima facie grounds or prima facie complaints.  If any prima facie position is disputed, the court must resolve the disputes in the usual way.  This is particularly so when the allegations made against the Respondent are serious in nature, which impugn its impartiality and integrity;

(o)  I have said above that not even the OS Submission Version is the final one which the Applicant is seeking to rely on.  In his Supplemental Submissions, Mr Mariani suggests that there has been a shift by the Respondent from the neutral position which it says it takes in respect of the Applicant’s substantive application.  Mr Mariani then says that “in the interests of enabling this Court to focus its time and resources on the nub of the matters that are truly in dispute between the parties and with a view to focusing the time and resources thereof for the better administration of the Trust, the Applicant is, in view of R’s Skeleton, prepared to abandon her application for all the declaratory reliefs sought in §§1-4 and 6 of the Amended Originating Summons and so limit her application strictly to a prayer that the Court direct that SSL grant Mr Yuen the Necessary Sanction…”;

(p)  To start with, I do not believe it is fair to suggest that there has been any shift by the Respondent.  I have set out above §38 of Mr Cheng’s affirmation.  He reiterates the Respondent’s position at §75 of his affirmation, wherein he concludes that:

I wish to make clear that the Appointer remains neutral insofar as the relief sought by the Applicant in the Originating Summons is concerned, and would abide by any court order that the Court may make.  However, the Respondent strongly refutes any allegation made against it that it had committed any wrong or had otherwise been in any position of conflict or at all.

(q)  More importantly, the abandonment of the declaratory relief does not in my view relieve the Applicant from establishing facts or findings (which I have called intermediate findings above) necessary for the court to compel the Respondent to give the Necessary Sanctions requested.  She may not want to seek relief from those intermediate findings.  She may want to focus on the Necessary Sanctions which she ultimately wants.  But factual disputes would still need to be resolved, and facts still need to be found.  Whether any relief is sought or flow from them is not important, and changes nothing;

(r)  Clearly, the existence of factual disputes by itself does not invariably render the originating process inappropriate.  But the factual disputes identified in the present case are highly material and controversial ones;

(s)  I have considered the possibility of ordering cross-examination in lieu of conversion.  This is in my view clearly undesirable given the mixture of facts and evidence in the affirmations concerned.  The Respondent and Interveners will not be able to identify from the affirmations what are facts which Applicant seeks to rely on and what not;

(t)  In fact, in the cause of the hearing, I asked Mr Mariani whether he could inform this Court, sentence by sentence, what parts of the affirmations/affidavits would be relied on and what not.  This is important as, with pleadings, parties can deal with and plead to the facts sentence by sentence.  Mr Mariani informed this Court that he could not off hand do that, but might need some time.  In my view, the Applicant has been given ample time and opportunity to frame her case properly;

(u)  In my view, given the nature of the factual disputes, and the seriousness of the allegations, it is clearly appropriate for pleadings to be ordered;

(v)  I highlight again the seriousness of the allegations that the Applicant has made against the Respondent and the Interveners.  As Mr Ho has submitted[16], it is well-established that fraud or dishonesty has to be pleaded “distinctly” with the “utmost particularity”.  If any authority is required, see Kwong Yi Ling v Lau Kwun Leung [2021] HKCFI 2303 §24;

(w)  Any extra time that may be taken for this instant case, with a conversion, to be trial-ready is in my view not an important consideration. This case is at a very early stage.  The Applicant’s case is still evolving. The Amendment Summons is still pending.  Even without conversion, fairness would require allowing the Respondent to file further evidence in response to the Applicant amended claim, whatever it is going to be.  The Interveners have not filed their evidence in substantive reply.  There are still many steps to be taken even with no conversion.  On the other hand, focusing too much on the advantage on expedition which the originating summons process may give so as to push cases which are otherwise not suitable for that process will create in the long terms problems which ultimately would cause more loss and waste of time and resources – see e.g. Tsang Wing Kwai;

(x)  On the facts before me, and having balanced all, I am of the view that this is a clear case for conversion.

E.  The Amendment Summons

27.  The Amendment Summons has been superseded by events.  Parties are however prepared to overlook any formality.  Mr Ho further submitted that it would be more principled for a form of the proposed amended OS be allowed, so that it in effect functions as the Writ upon conversion, so that any Statement of Claim to be filed should be confined thereby.  I see force in that submissions, and sense in that approach.

28.  I grant the Applicant leave to amend the OS as per the OS Submission Version.

F.  Conclusion and disposition

29.  In respect of the Amendment Summons, I grant the Applicant leave to amend the OS as per the OS Submission Version.

30.  I accede to the Conversion Application.  Subject to what I am going to say, I make the order and consequential directions sought and in terms of §§2 to 6 of the Interveners’ Summons.  I note that §4 (in relation to the filing of defence and counterclaim (if any) by the Interveners).  The Respondent is not mentioned therein.  I add it back in, so that the Respondent is also given the liberty and the same time to file its defence and counterclaim (if any).

31.  The Notice of Appointment to hear Originating Summons is superseded by the conversion of the present proceedings.  I make no order in that regard (if any order is expected to be made at this stage in relation to the same).

G.  Costs

32.  I make the following costs orders, all nisi at this stage, absolute within 14 days:

(a)  It appears that any costs for the Amendment Summons has been subsumed into those of the Conversion Application.  I hence make an order, on the aforesaid nisi basis, that there be no order as to costs of the Amendment Summons; and

(b)  In respect of the Conversion Application, I see force in the submissions made by Mr Fung in §48 of his written submissions.  I hence make an order, on the aforesaid nisi basis, that the costs of the Respondent and Interveners of and occasioned by the Conversion Application be borne by the Applicant and be summarily assessed on an indemnity basis, with certificate for 2 counsel in the case of the Interveners, and be paid by the Applicant personally forthwith.

33.  If there is any application for variation of the nisi orders, I will upon request or when necessary hand down further directions.  If not, the Applicant may lodge her statements of objections to the respective statement of costs of the Respondent and Interveners within 21 days from the date hereof.  The Respondent and Interveners are granted liberty to lodge their reply within 7 days thereafter.