CHEUNG KAI TUNG v. MANG MARGARET SUI YEE AND OTHERS

HCA 1891/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1891 OF 2005

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D E C I S I O N

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1. The Defendants applied to strike out the Plaintiff’s statement of claim under Order 18 rule 19 for the reason that “the Plaintiff (as the alleged beneficiary to the estates of Cheung Sou Che, Cheung Wai Tak and Cheung Chai Tin) did not and does not have the locus standi to sue the 1^st and 2^nd Defendants by way of the action herein” and alternatively, “that the action is not properly constituted”.

2. The parties appeared before me on 20 March 2006 for direction.  They wanted an early date for hearing in consultation with counsel diaries.  It was unlikely that it could be heard within 2 months.  I suggested to them the procedure proposed by the Civil Justice Reform Final Report as appeared in the Consultation Paper as amendment to Order 32 rule 11(1)(a).  The procedure is that the parties submit written representations respectively to the Master who will determine the application on paper without a hearing.  The parties agree to it and I make the following directions for the parties to make written submissions and costs:

(a)    the Defendant within 14 days of the direction;

(b)    the Plaintiff within 14 days thereafter;

and    (c)    the Defendant within 7 days thereafter.

3. The Plaintiff claimed in this action as a beneficiary of the estate of Cheung Sou Che (“the Father”) against the 2^nd Defendant as personal representative of the estate of the 2^nd Defendant’s wife.  The 2^nd Defendant’s wife was the daughter of the Father (“the Daughter”) and was the administratrix under the grant de bonis non of the estate of the father.

4. The Plaintiff alleged breach of statutory trust by the Daughter as administratrix in that she effected a sale to her own daughter, the 1^st Defendant, (i.e. the granddaughter of the Father).  The transaction was alleged not to be an arm’s length transaction.  The Plaintiff claimed against the Defendants to set aside the transaction, and for a true and full inventory and account of the estate of the Father, and damages.

5. The Defendants mainly relied on the two unreported Court of Appeal decisions both instituted by 周順鏞 as CACV 390/2004 dated 2^nd March 2006 and CACV 34/2005 dated 3^rd March 2006 (“the 2 CA decisions”) in which it was held that 周順鏞, the Plaintiff, as beneficiary of the estate did not have locus standi to claim against the defendants in the two appeal cases.  Mr. Frederick H.F. Chan, counsel for the Defendants, went further to say that the two decisions were in conflict with the Full Court decision in the case of Wong Yu Shi and others v Wong Ying Kuen, [1957] HKLR 420.

6. I agree with the written submission of Mr. Lee Tung Ming, counsel for the Plaintiff, that there is no conflict between the Full Court’s decision and the 2 CA decisions.  The Defendants have misunderstood the facts of the 2 CA decisions.  周順鏞 sued the two defendants not as administratrix of the estate of his mother but as the persons who had intermeddled the estate.  Of course, he did not have locus standi.  In the Full Court case, the plaintiffs claimed the defendant as administratrix of the estate for incompetence in administering the estate.

7. Having cleared the main ground of the Defendants’ application as stated in the first written submission, I do not find the reply submission by Mr. Chan helpful.

8. I dismiss the Defendants’ application.  I make an order nisi in respect of costs pursuant to Order 42 rule 5B(6):

(a)     Costs be to the Plaintiff with certificate for counsel;

and    (b)     I assess the Plaintiff’s costs in the sum of $33,000.

Unless any party applies in writing to vary the above costs order within 14 days hereof, the order nisi will become absolute.