IP WING TAI v. WAN SHU WAH

HCMP 5524/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5524 OF 1998

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J U D G M E N T

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1. On 18 May 1967, Wan Tze Kuen was born to Wan Shu Wah and Ip Wing Tai. On 11 March 1993, Wan Tze Kuen died in a fatal accident. On 6 December 1994 Letters of Administration to the estate of Wan Tze Kuen were granted to his father Wan Shu Wah. The substantial part of his estate comprises a claim for damages under the provisions of the Fatal Accidents Ordinance Cap. 22 and the Law Amendment and Reform (Consolidation) Ordinance Cap. 23, in other words, his claim for negligence against the tortfeasor.

2. Subsequently, however, it would appear that Wan Shu Wah was no longer interested in the claim for compensation. On 17 December 1995 he signed a letter addressed to the Legal Aid Department in which he says that due to his frequent stays in Mainland China and his inability to spend time to deal with his son's estate's claim for compensation, he declared that Madam Ip was fully authorised to be responsible for the claim for compensation. In the same letter, he acknowledges the fact that the necessary payments to the Legal Aid Department for the furtherance of the action against the tortfeasor had in fact been paid solely by Madam Ip and not by himself and, therefore, he further indicated that he was willing to give up all his rights regarding the compensation moneys in respect of the action against the tortfeasor and agreed that the Legal Aid Department could pass the entire amount of compensation to his wife Madam Ip. This letter was followed by a subsequent letter in the following year on 20 July 1996.

3. In respect of the action against the tortfeasor, on 29 July 1997, Madam Ip was substituted as the Plaintiff for Wan Shu Wah.

4. On 9 October 1997, a Master gave an order purporting to revoke the Letters of Administration granted to Wan Shu Wan and re-granting the same to Madam Ip. However, Section 5(3)(b) of the Probate and Administration Ordinance Cap. 10 does not permit revocation and re-grant of Letters of Administration to be ordered by a Master; it has to be done by a judge. Therefore, the Master's order of 9 October 1997 was made ultra vires and was of no effect.

5. On 21 October 1998, an Originating Summons was issued in the present matter, being miscellaneous proceedings in the High Court. The relief originally sought was that the Letters of Administration granted to Wan Shu Wah be revoked and Letters of Administration be re-granted to Madam Ip. On 26 June 1999, the Originating Summons was amended on the application of solicitors then acting for Madam Ip, and the order sought was that for the due and proper administration of the estate of the deceased, the Defendant be removed as the administrator of the estate of the deceased and that Madam Ip be substituted as administratrix of the deceased's estate in place of the Defendant Wan Shu Wan, so that all unadministered property belonging to the deceased's estate be vested in Madam Ip as such administratrix.

6. On 7 March 2000, I gave an order that service of the Notice of Appointment for the hearing today be effected by advertising the notice in a Chinese newspaper published and circulating in Hong Kong.

7. I have heard the application this morning and have read the affirmations. Although the Defendant Wan Shu Wah has not appeared, it would appear clear from the exhibits to the affirmations before me that this is a fit and proper case for the court to make the order as sought in the Amended Originating Summons. Accordingly, I would grant an order in terms of paragraphs 1 and 2 of the Amended Originating Summons.