OVERSEAS TRUST BANK LTD. v. HO PUI WAH AND ANOTHER

___________

__________

JUDGMENT

__________

1. This is an application for leave to appeal out of time against  part of an order made by a Master on the 4th of March 1987.  The background history begins with an originating summons dated the 30th of January 1984 issued on the application of Overseas Trust Bank Ltd. (the Plaintiff) against Ho Pui-wa (the Defendant) claiming delivery of vacant possession of mortgaged property. Delivery of vacant possession was ordered on the 6th of July 1984 but no writ of possession was issued before the death of the Defendant in August 1986. The Plaintiff successfully applied to a Master by summons on the 26th of February 1987 for leave to issue a writ of possession pursuant to the order made on the 6th of July 1984 notwithstanding failure to comply with the provisions of Order 46 Rule 2 of the Rules of the Supreme Court prior to the issue of the writ.

2. The Master also ordered a stay of execution until the 4th of March 1987, the date fixed for the hearing of an inter parte summons by which Lee Kwok-shu, the Respondent in this current application sought an order that a) he be appointed to represent the estate of the Defendant for the purposes of the Plaintiff's proceedings, b) that further proceedings in those proceedings be carried on by Lee on behalf of the estate of the Defendant, and c) that all further proceedings be stayed pending the outcome of another action to be instituted against the Plaintiff by Lee on behalf of the estate of the Defendant upon condition that the action be instituted within 28 days. The Plaster made an order in terms of a), b) & c) but with c) amended to read 14 days instead of 28. He also ordered that in respect of the proceedings to be instituted by Lee, that Lee should "also be appointed to represent the estate of the Defendant deceased, and empowered to carry on those proceedings on behalf of the estate." The terms of the order were relayed to the Plaintiff by the Plaintiff's then solicitors that same day, and the new proceedings were instituted by Lee in compliance with the 14-day condition. It was only after the institution of the new proceedings that the Plaintiff began to be concerned about the Master's order, but by then the time for appeal had expired. The Plaintiff changed solicitors on 20th March 1987.

3. On studying the file, the Plaintiff's current solicitors doubted the validity of the appointment of the Respondent to represent the estate in the new proceedings. On the face of the Respondent's summons, he was invoking the Master's powers under Order 15 Rules 6a and 15, and Order 45 Rule 11 of the Rules of the Supreme Court, none of which appeared to empower an appointment to commence fresh proceedings but were concerned only with proceedings already begun.

4. The solicitors sought instructions from the Plaintiff to obtain Counsel's opinion. Such instructions were given and acted upon. The upshot was that the Plaintiff's counsel and solicitors became convinced that the appointment was invalid and that the only proper way to put the matter right was to seek leave to appeal out of time.

5. If the Plaintiff's fears are well founded then the new proceedings are a nullity but, in order to have them struck out, the Plaintiff needs to go behind the order made by the Master in order to show that the Respondent lacks the capacity to sue. It seems to me that the appropriate course in such a situation is an appeal against that part of the order rather than an application to strike out the new action. Accordingly, I took the view that should there be any merit in the Plaintiff's assertion then leave to appeal should be given.

6. For that reason I heard submissions from counsel regarding the validity of that part of the Master's order relating to the appointment of the Respondent as a party empowered to sue the plaintiff on behalf of the Defendant's estate. Mr. Yu for the Respondent seeks to uphold the order on the basis that a master has an inherent jurisdiction to make a grant of administration for limited purposes. In support of that submission he referred me to Halsbury, 4th edition, volume 17, title Executors & Administrators, paragraph 1013, to Williams Mortimer and Sunnucks On Executors, Administrators and Probate pages 321 - 322 and to section 36 of the Probate and Administration Ordinance.

7. The footnotes to the extract from Halsbury suggest that the practice where an administration an litem is granted with a view to beginning or carrying on proceedings is as set out in Tristram & Coote's Probate Practice 24th edition page 392. Mr. McLanachan referred me to that text in particular to the following : "Grant limited to an action. Where it is necessary for the personal representative of a deceased person to be made a party to legal proceedings, for example, an action by or against the estate of the deceased, but the executors or other persons entitled to obtain a grant will not constitute themselves as personal representatives, application may be made for a grant of administration to a nominee limited to bringing, defending or being a party to the action or proceedings in question. The grant will in no case be a general grant".

8. That I take to be an accurate statement of the practice. The qualification, "but the executors or other persons entitled to obtain a grant will not constitute themselves as personal representatives", is of obvious relevance. If the persons entitled to obtain the grant will not constitute themselves as personal representatives then legal proceedings involving the deceased would be frustrated if the practice did not provide some means of filling the gap left by the death of the deceased. But where those persons are willing to constitute themselves as personal representatives, they can step in and fill the gap. The practice is not needed in that situation. In this case, the Respondent has affirmed that he is not only willing but actually intends, with the authority of the others also entitled, to constitute himself as personal representative. There is, therefore, no gap to be filled, so no basis for a grant limited to the bringing of an action. I think, therefore, that the appointment was made ultra vires. I, therefore, grant leave to appeal and I allow the appeal.