SHAM WAN KEUNG v. LEUNG SUET FAN

1994, NO. 56
(Civil)

IN THE COURT OF APPEAL

(On appeal from Orders made on the 4th day of March

1994 by the Honourable Mr. Justice Liu in Chambers)

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IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 364 OF 1994

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J U D G M E N T

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1. This is the judgment of the court.

2. This is an appeal against a decision by Mr. Justice Liu who on the 4th March this year dismissed an originating summons brought by the Appellants, by which they sought either the appointment of a new trustee of trust property of which they were beneficiaries, alternatively the vesting of that property in them.

3. The summons purported to be ex-parte, that is to say at least it followed form 11, the form prescribed by Order 7 Rule 2 of the Rules of the Supreme Court. Unfortunately the drafter of the summons, after the usual title to an ex-parte originating summons, introduced the names of the parties, namely that of two plaintiffs and a defendant. The ex-parte summons was therefore effectively converted into a form of inter partes summons. That difficulty was compounded by the fact that both the 1st Plaintiff and the Defendant were deceased persons. It is perhaps not surprising in the circumstances that at the end of the day, the judge dismissed the originating summons.

4. The history of the matter and the details of the originating summons are set out in the judge's judgment. We do not think it will help if we rehearse that judgment in any detail. It is sufficient we think to say this. Although the judge dismissed the originating summons, he was plainly trying to be helpful to the parties because, towards the end of his judgment, he suggested at least two methods by which the Appellants might remedy the unfortunate situation in which they found themselves and gave suggestions as to the appropriate parties to be given notice of the proceedings.

5. Mr. Chow, who appeared before us but not before the judge, has now recognised that the most convenient course to resolve the difficulties would have been for the names of the parties to have been deleted from the form of the originating summons, thereby restoring its original form and intention that is to say, an ex-parte application by the beneficiaries seeking the vesting of the trust property in them.

6. Such a suggestion or proposal was apparently not put to the judge. The judge therefore never actively exercised his discretion against it. We are inclined to think that, had this proposal been suggested, the judge would have adopted and followed it. Substantively, these proceedings were not and never have been inter-partes. There is therefore no one who would be disadvantaged by the course which the judge adopted being reversed.

Following the spirit of helpfulness, therefore, shown by the judge and doing what we are confident he would have done if so invited, we are happy to adopt the convenient course which, as we have remarked, has now been recognised by Mr. Chow.

7. Accordingly, we allow the appeal, we set aside the order of the judge, we give leave for the originating summons to be amended by the deletion of the names of the parties in the title to that originating summons and we grant the relief which was sought in paragraph 2 of the summons, or at least sought in part, because we are prepared on the facts of this case as we understand them to be to make an order vesting the property straight away in the personal representatives on the so called 1st Plaintiff and in the 2nd Plaintiff herself.