CMB WING LUNG BANK LTD v. LEUNG WAI YAN LINDAR, be appointed to represent the estate of LEUNG KWOK HONG, deceased

DCMP 2724/2024

[2025] HKDC 930

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2724 OF 2024

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DECISION

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A.  INTRODUCTION

1.  This is the plaintiff’s appeal against a Master’s order dated 1 April 2025 (the “Order”) where she ordered the case to be adjourned with directions for filing further submissions and evidence.

B.  BACKGROUND

2.  In short, the background to the present action is as follows:-

(1)  This is a mortgagee action brought by the plaintiff bank against the Personal Representatives of Mr Leung Kwok Hong (“Mr Leung”) under O 88 of the Rules of the District Court (Cap 336H) (“RDC”) by Originating Summons dated 22 May 2024 (the “O/S”).

(2)  Mr Leung passed away on 27 December 2023.

(3)  After liaising with Mr Leung’s daughter, Ms Leung Wai Yan Lindar (the “Daughter”) (who was represented by K W Luk & Co at the time), an application was made by the plaintiff for a carry on order under O 15 r 6A of the RDC by summons filed on 31 July 2024.

(4)  On 6 August 2024, K W Luk & Co purported to file an acknowledgment of service to the O/S for the “Personal Representatives” of Mr Leung indicating no intention to contest these proceedings (the “Purported A/S”).

(5)  By order dated 4 September 2024, Master J. Chow made the carry on order for the Daughter to represent the estate of Mr Leung for the purpose of the present proceedings and for these proceedings be carried on against the Daughter so appointed as aforesaid (the “Carry On Order”).

(6)  Although the Daughter has made an application for a grant of probate, to date, the application is still pending.

3.  At a hearing before the learned Master on 1 April 2025 which was attended by the plaintiff’s solicitors and the Daughter (who by then acted in person), the learned Master refused to enter judgment for the plaintiff and expressed reservations as to the propriety of the Carry On Order, including whether it was appropriate to seek a carry on order before the grant of probate, and whether the interests of other parties were adequately protected. She also raised the issue of whether the O/S was properly served. She therefore made the Order to adjourn the case to another hearing with directions for further submissions and evidence to address her concerns.

4.  The plaintiff filed a notice of appeal against the Order on 15 April 2025.

C.  APPEALS FROM MASTER’S DECISONS

5.  It is well-established that appeals from Masters’ decisions are dealt with by way of rehearing. The application is treated as though it came before the court for the first time, see: Hong Kong Civil Procedure 2025, vol 1, §58/1/2.

D.  ANALYSIS

6.  In contention that the Order was wrongly made, the plaintiff in essence advanced two arguments:-

(1)  The Order amounts to re-opening the Carry On Order and the learned Master had no jurisdiction to do so.

(2)  It was not open to the learned Master to raise requisitions concerning the issue of service as the O/S was validly served.

D1.  Issue (1) - Jurisdiction of the Master

7.  The plaintiff relies on the following authorities in support of its position that the learned Master had no jurisdiction to reopen the Carry On Order:-

(1)  In Choy Bing Wing v Hong Kong & Shanghai Hotels Ltd [1998] 1 HKC 466, Findlay J said at 468A-B that:-

“The jurisdiction given to masters under O 32 r 11 and elsewhere is given to any master. It is not a personal jurisdiction. Any master had jurisdiction to make the assessment and to decide the matters of interest and costs. Obviously, where a jurisdiction has been exercised by a master by masking a decision, that jurisdiction is exhausted, and another master cannot make another decision in relation to the exercise of the same jurisdiction while that decision stands.”

(2)  Similarly, the commentary at §32/6/12 of Hong Kong Civil Procedure 2025 states that there is in general no power to rehear an application after the order has been perfected save in cases which are specifically provided for by the rules.

8.  Whilst the above authorities describe the general position that a master has no jurisdiction to reopen the order made by another master once the order is sealed. It is clear that carry on orders are one of the exceptions as expressly provided under RDC O 15 r 6A(4):-

“In any such action as is referred to in paragraph (1) or (3)-

(a) the plaintiff shall, and the defendant, the personal representative of the deceased or any person interested in the deceased’s estate may, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person so appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;

(b) the Court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in subparagraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon” (emphasis added).

9.  Plainly, paragraph (b) of Rule 6A(4) provides that the court has jurisdiction to amend a carry on order made under Rule 6A(4)(a) or to make such further order as the court thinks necessary. Accordingly, I am of the view that the learned Master is clearly entitled to make inquiries in respect of the Carry On Order.

10.  Having been satisfied that the Master has jurisdiction to make the Order, I also take the view that the directions made by her were appropriate in the circumstances to ensure that any potential third party interests are properly investigated before the court decides the matter substantively to determine whether judgment should be entered in favour of the plaintiff.

D2.  Issue (2) - Validity of the service of the O/S

11.  On this issue, the plaintiff contends that there was no basis for the learned Master to raise requisitions on the validity of the service of the O/S because of the filing of the Purported A/S, as it is provided in RDC O 10 r 1(5)[1] that (amongst others) where a person acknowledges service of the O/S, service is deemed to be valid.

12.  Whilst I accept that the above proposition is correct as a matter of law, it does not assist the plaintiff if the Purported A/S is defective.

13.  As expressly stated in the Purported A/S, K W Luk & Co is accepting service on behalf of unidentified “Personal Representatives” of Mr Leung. It is not disputed that no grant of probate has been made as at the date of this hearing. Hence, it is not even clear who would be the Personal Representative of Mr Leung at the time the Purported A/S was filed. In an earlier letter from K W Luk & Co to the plaintiff dated 6 February 2024, K W Luk & Co identified themselves as solicitors for the Daughter in the capacity as “intended Administratrix” of Mr Leung’s estate.

14.  On a fair reading, there is considerable doubt as to whether the Purported A/S amounts to a valid acknowledgement of service on behalf of the Daughter as a person on whom the Carry On Order was made. One simply cannot conflate a personal representative (which is understood as the executor or the administrator) with a person to whom a carry on order has been granted under RDC O 15 r 6A. The distinction between the two are readily apparent from the wording of the provisions quoted in §8 above.

15.  In any event, it is also questionable whether the plaintiff has complied with the rules governing the service of the O/S after the Carry On Order was made.

16.  Where a carry on order is made under RDC O 15 r 6A(4), RDC O 15 r 6A(6) provides that (amongst others) RDC O 15 r 7(4) and r 8(3) shall apply as if the order has been made under RDC O 15 r 7. This means that unless otherwise directed by the court, after a carry on order is made, the plaintiff shall serve on the person who is ordered to carry on the proceedings on behalf of the deceased a copy of the originating summons with a form of acknowledgment of service, and the usual rules on acknowledgment of service shall apply with necessary modifications, see: RDC O 15 r 7(4) and 8(3).

17.  In this case, there has been no order dispensing with the above requirements and I have not been provided with any authority that the Carry On Order would by itself operate retrospectively so as to validate the Purported A/S (notwithstanding the defects identified above) in order to satisfy the requirement under RDC O 15 r 7(4).

18.  In light of the above, I am not prepared to enter judgment for the plaintiff at this juncture. I agree with the learned Master that further inquiries should be made to ensure proper service of the O/S.

E.  DISPOSITION

19.  Accordingly, the appeal is dismissed. As the Daughter has indicated at the hearing that she did not wish to seek costs against the plaintiff in the event that the appeal is dismissed, I make no order as to costs.