梅啓明 AND ANOTHER v. HSBC INTERNATIONAL TRUSTEE LTD

HCA 1184/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1184 OF 2011

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BETWEEN

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REASONS FOR DECISION

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1.  This is an application by the Defendant to strike out the Writ and the Statement of Claim on the ground that the Plaintiffs’ action is plainly misconceived. I allowed the application in the hearing on 13 December 2011 and I now give my reasons.

The striking out application

2.  The Plaintiffs are the brothers of the well known singer Anita Mui (“the Deceased”) who died in December 2003.

3.  The Defendant is the trustee of an inter vivos trust, the Karen Trust, set up by the Deceased shortly before her death.  The Defendant is also the executor appointed under the Deceased’s last will dated 3 December 2003 (“the Will”).

4.  The Will essentially left all her estate to the Karen Trust.  The Karen Trust, in turn, is a discretionary trust with beneficiaries including the Deceased’s mother and 4 nieces and nephews of the Deceased.  There was also a trustee memorandum which contained suggestions made by the Deceased as to how the discretion under the Karen Trust should be exercised.

5.  So far as I can understand it, in the Statement of Claim, the Plaintiffs claim that:

(i)   the Karen Trust and the Will were invalid;

(ii)   the Deceased’s estate should all go to the Deceased’s mother, Madam Tam; and

(iii)   the Defendant had caused loss to the Deceased’s estate by reason of its negligence and wrongdoing.

6.  It is clear that the Plaintiffs’ claim is wholly misconceived and should be struck out.

7.  The Plaintiffs claim that the estate of the Deceased ought to vest in their mother, not them.  It follows that they have no locus standi to bring the present action.  It is trite law that a son cannot assert a mother’s cause of action (see also: 梅啓明 v Doris Lau & Ors, unreported, HCA No. 597 of 2006, decision of Registrar Chan on 11 August 2006).

8.  Further, any attempt to challenge the validity of the Will is bound to fail.  In HCAP No. 2 of 2004, the Deceased’s mother challenged the validity of the Will and the trust arrangements.  A Cheung J, as he then was, dismissed the challenge and found that the Will had been proved in solemn form.  The mother’s appeal was dismissed first by the Court of Appeal (CACV No. 200 of 2008) and then by the Court of Final Appeal (FACV No. 11 of 2010).

9.  The proof of a will in solemn form will bind not only the persons who were parties to the proceedings, but also those who were privy to the proceedings, ie those who, being of full age and sui juris, elected to stand aside though notified of their interest in the proceedings (see: Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (19 ed, 2008) §20-4).

10.  The Plaintiffs are clearly persons of full age and sui juris.  They clearly had knowledge of the proceedings.  In §14 of the judgment, A Cheung J mentioned the Plaintiffs as persons, alongside the mother, who could not accept the contents of the Will and the trust arrangements.  In such circumstances, it is beyond doubt that the proof of the Will in solemn form binds the Plaintiffs.

11.  Further, it is equally impossible to see how the Defendant, as trustee or executor, owes any duty to the Plaintiffs, who are not beneficiaries of the Karen Trust, under the Will or on intestacy had there been one.

12.  Based on the aforesaid, the Plaintiffs’ claim is wholly misconceived and has to be struck out.

Costs

13.  Costs should follow the event.

14.  In an earlier action, HCA No. 597 of 2006, the 1^st Plaintiff had already made a claim against the present Defendant and other parties relating to the administration of the estate of the Deceased.  On 11 August 2006, Registrar Chan struck out his claim on the ground that, inter alia, the 1^st Plaintiff had no locus standi to commence the claim.  In such circumstances, it is wholly unreasonable for the Plaintiffs to have brought another action against the Defendant. I therefore ordered the Plaintiffs to pay the costs of this action, including the costs of the striking out summons dated 11 August 2011, on an indemnity basis.

15.  In the hearing, the Defendant asked for summary assessment of costs.  I agreed.  However, since the Plaintiffs were unrepresented and only received the Statement of Costs in the hearing, opportunity should have been given to the Plaintiffs to study the Statement.  That was the reason why I preferred the assessment to be done at a later date.

16.  I therefore make the following directions:

(i)   the summary assessment of costs shall be dealt with on paper;

(ii)   the Defendant do file and serve the Statement of Costs, either in Chinese or in English with Chinese translations, together with a Chinese translation of the directions herein, within 7 days of the handing down of this Reasons for Decision; and

(iii)   the Plaintiffs do file and serve a brief List of Objections to the said Statement within 7 days thereafter.

Restricted proceedings order (“RPO”)

17.  As I have mentioned above, the 1^st Plaintiff had brought a similar action against the Defendant in 2006 and the same was dismissed.  With clear knowledge that he had no locus standi to do so, he nevertheless commenced the present action against the Defendant.   In the hearing, I raised the possibility of making a RPO against at least the 1^st Plaintiff.

18.  Mr Man, counsel for the Defendant, indicated to me that the Defendant was also considering whether to make such application.  As rightly pointed out by Mr Man, evidence needs to be filed by the Defendant in support of such application, and directions need to be given by the court in respect of the filing of affidavit evidence.

19.  After further consideration, I decide to leave this matter with the Defendant.  If the Defendant sees it fit to make an application for a RPO, it can take out an appropriate summons so that the court can give directions for the filing of affidavit evidence.  Hence at this stage, no direction will be given by the court in relation to such application if any.