LI JINPEI also spelt as LAI KAM PUI also known as AU KAM PUI v. AU KAM SUN

HCMP 2641/2012

[2018] HKCFI 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2641 OF 2012

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DECISION

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INTRODUCTION

1.  This is the Defendant’s application for leave to re-amend the Amended Defence for the purpose of raising a limitation defence under Section 21 of the Limitation Ordinance, Cap 347.

2.  In what follows, unless the context indicates otherwise, references to Sections shall be to the Limitation Ordinance.

BASIC FACTS

3.  This action concerns the estate of Au Yuet Sum, deceased (“Mr Au”).  Mr Au and Lai Ying, deceased (“Madam Lai”) were husband and wife.  They were both of Chinese origin and came to reside in Hong Kong in the 1930s.  They had no children of their own.

4.  Lai Ming Sing (“Mr Lai”) was the younger brother of Madam Lai.  Mr Lai and Chen Xiuzhi (“Madam Chan”) were residents in the Mainland.

5.  Mr Au was the Defendant’s uncle (堂叔).

6.  Mr Au died intestate on 24 July 1992 leaving, inter alia, 5 properties in Hong Kong.  Letters of administration of the estate of Mr Au was granted to Madam Lai on 4 September 1994.

7.  Madam Lai passed away on 6 November 2004, leaving a will dated 5 November 1999 (“the Will”) appointing the Defendant and one Au Keung Sun as executors of the will.  Probate of the Will was granted to the Defendant on 5 December 2007.

8.  By the time of her death, Madam Lai had not yet completed the administration of the estate of Mr Au.  On 25 November 2010, Letters of Administration de bonis non of the estate of Mr Au (“the Grant”) were granted to the Defendant.

9.  The Plaintiff is the natural son of Mr Lai and Madam Chan, and claims to be the adopted son of Mr Au and Madam Lai pursuant to an adoption agreement made in 1971.  The validity of the adoption is the central issue to be determined in this action.  According to Mr Chain (for the Plaintiff), if the Plaintiff’s claim to be the adopted son of Mr Au is established, he would have a better right than the Defendant to be granted letters of administration de bonis non of the estate of Mr Au.

10.  On 20 November 2012, the Plaintiff commenced the present action by way of an Originating Summons seeking, inter alia, the following relief: (i) the Grant be revoked; (ii) the Plaintiff as the adopted son of Mr Au be appointed as administrator of the un-administered estate of Mr Au, and (iii) the Defendant do render a just and true account of the un-administered estate of Mr Au.

11.  Pursuant to the order of Master Levy dated 27 June 2013, the present action was converted into a probate action and directions were given for exchange of pleadings.

12.  The Plaintiff filed his Statement of Claim on 7 August 2013 seeking essentially the same relief mentioned in the Originating Summons.  In the Defendant’s Amended Defence filed on 27 June 2014, the Defendant disputes the claimed status of the Plaintiff as the adopted son of Mr Au.

13.  On 10 July 2017, dates were fixed for the trial of this action, with the trial scheduled to commence on 17 July 2018 (with 6 days reserved).

14.  On 22 January 2018, the Defendant took out the present summons seeking, inter alia, leave to re-amend the Amended Defence. The proposed amendment consists of the addition of a single paragraph 28A, as follows:-

“The Defendant further avers that the Plaintiff’s Originating Summons was issued on 20^th November 2012, more than 12 years after the date on which Letters of Administration of estate of [Mr Au] under Grant No.5278 of 1994 was granted to [Madam Lai] on 9^th September 1994. Accordingly, the Plaintiff’s claim for sharing of the estate of [Mr Au] referred to in the Statement of Claim dated 7^th August 2013 is time barred by operation of Section 21 of the Limitation Ordinance, Cap.347.”

DISCUSSION

15.  Section 21 states as follows:-

“Subject to the provisions of section 20(1), no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of 12 years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of 6 years from the date on which the interest became due.”

16.  Two points are of note in respect of this provision:-

(1)   it only applies to a claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy; and

(2)   it is subject to Section 20(1), which provides that no period of limitation prescribed by the Limitation Ordinance shall apply to an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

17.  In the present case, the Plaintiff is not making any claim to the personal estate of a deceased person (ie Mr Au) or to any share or interest in such estate.  His claims, as earlier mentioned, are for (i) a revocation of the Grant, (ii) an order appointing him as administrator of the estate of Mr Au, and (iii) an order requiring the Defendant to render a just and true account in respect of his administration of the estate of Mr Au.  These claims are not, in my view, subject to Section 20(1) (see Re Loftus, Deceased [2007] 1 WLR 591, at paragraphs 30 and 32 per Chadwick LJ).

18.  It is true that if the Plaintiff’s claim as the adopted son of Mr Au is established, he would be a beneficiary of the estate of Mr Au and thus entitled to a share or interest in the estate under the Intestates’ Estates Ordinance, Cap 73.  However, as mentioned above, the Plaintiff is not making a claim for any share or interest in the estate of Mr Au in this action.  In any event, even if the Plaintiff should make such claim, it would be a claim to recover from the Defendant (as administrator) trust property or the proceeds thereof in the possession of the Defendant falling under Section 20(1)(b) and therefore not caught by the limitation period prescribed by Section 21.

19.  For the above reasons, I consider that the proposed limitation defence is misconceived.  It follows that the application to amend is refused.  I shall now hear the parties on the question of costs.