YIP KUI FUNG KENNETH v. YIP TSZ KWAN IRENE AND OTHERS

HCMP 2163/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2163 OF 2016

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DECISION

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1.  At this hearing, Mr Yu for the 1^st defendant objected to the plaintiff raising for the first time the argument on section 56 of the Trustees Ordinance.

2.  Mr Yu’s points were mainly that it had never been raised in the originating summons and in the plaintiff’s affirmations.  It raised question of law as well as question of fact on what amount to “management or administration” of property vested in trustees and more importantly to the word “expedient”.

3.  Mr Lam for the plaintiff said there was no need to put that in the originating summons and the affirmations.  He referred to, amongst other things, a passage in Order 85 of the Rules of the High Court.  He also said the matter had been delayed for 13 years and should be dealt with without further delay.

4.  I appreciate the time lapse of 13 years but we are talking about the fair disposal of the case and ensuring fairness between the parties.

5.  I do not agree with Mr Lam that this point does not have to be raised expressly in the originating summons and the affirmations. 

6.  The originating summons, though not pleadings, should allow the other side to know the case they have to meet.  Accordingly, if they are going to ask the court to invoke power under section 56 of the Trustees Ordinance, they should raise it in the originating summons and also in the heading of the originating summons.

7.  Although affirmation is for the purpose of stating the fact, I consider that the plaintiff should state its intention to rely on section 56 and to state the facts that the plaintiff relies on to meet the tests laid down in the authorities.  In the affirmations filed by the plaintiff, he did not mention anything about those facts such as the management or administration of trust property or whether in this case, it is expedient for the court to exercise its power.  The reference in one of the plaintiff’s affirmations to “convenience”, in my view, does not solve the problems the plaintiff has to face.

8.  Whilst on authorities, I note that from the authorities the plaintiff sought to rely on, the circumstances there were very different from the present case and that is another reason why the matter should be raised and dealt with specifically.

9.  I have considered all the points submitted and the above are highlighted as my reasons for not allowing the plaintiff to raise the section 56 point at this hearing.

10.  Mr Lam indicated that if I did not allow him to raise and pursue section 56 at this hearing, he would amend the originating summons. 

11.  In terms of filing of further affirmations, I think the best way in managing the case would be for the plaintiff to amend the originating summons and file the affirmation first and then for the 1^st defendant to file her affirmation in reply followed by the final set of evidence from the plaintiff.  Both Mr Yu and Mr Lam agree with this approach.

12.  I will now hear parties on the directions I should make and also on the question of costs.