VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT

HCA 1376/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1376 OF 2011

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DECISION

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1. This is an application by the defendant to strike out the plaintiffs’ claim, or alternatively, for the court’s determination on a point of law under O 14A of the RHC.

BACKGROUND

2. This is very much a family dispute.  The deceased, Vannee Nativivat, was a Thai national ordinarily residing in Bangkok, Thailand.  Prior to her death, she ran businesses of, inter alia, accounting firm and property development in Bangkok.  She died domiciled in Thailand from lung cancer on 9 June 2011 at the age of 79.

3. The plaintiffs and the defendant are the children of the deceased.

4. Prior to her death, the deceased had executed a Deed of Gift dated 26 April 2004 (“the Deed of Gift”) assigning her interest in the property known as Flat 2, 6^th floor, Winfull Commercial Building, Nos 172-176 Wing Lok Street, Hong Kong (“the Property”) to the defendant by way of gift.  On 24 July 2004, the deceased also made a will (“the 2004 Will”) which provides that:

(i)  the Property shall be transferred to the defendant and one of the plaintiffs, Viroj Nativivat (“Viroj”), in equal shares upon her death; and

(ii)   the defendant and another person are appointed as the executors of the estate of the deceased.

5. The deceased made another will on 24 December 2010 (“the 2010 Will”) which provides that:

(i)  the deceased revokes the 2004 Will;

(ii)  the Property shall be transferred to Viroj solely upon her death; and

(iii)  the plaintiffs are appointed as the executors of the estate of the deceased.

6. After the death of the deceased, the plaintiffs, on 29 June 2011, applied for an order from the Thai court appointing them as the executors for the purpose of the administration of the deceased’s estate. However, the defendant proceeded to challenge the validity of the 2010 Will and, on 18 August 2011, filed a probate action in the Thai court.  The Thai probate proceedings are currently continuing, and I am given to understand that the next substantive hearing involving the hearing of witnesses is scheduled for September 2012.  Under such circumstances, it is not possible for the plaintiffs to obtain any grant of probate or letters of administration in Hong Kong for them to administer the estate of the deceased in respect of the 2010 Will or otherwise.

7. On 13 August 2011, the plaintiffs, as the purported executors of the estate of the deceased, commenced the present action against the defendant seeking to set aside the Deed of Gift.  The plaintiffs claim that the Deed of Gift was executed by the deceased as a result of the fraud and misrepresentations made by the defendant to the deceased at the time of or shortly before the execution of the Deed.  The plaintiffs also registered the writ of summons in the Land Registry.

8. It is the plaintiffs’ case that the deceased discovered the defendant’s fraud and misrepresentations prior to her death, and that was the main reason why the deceased executed another will in 2010. Further, the deceased commenced criminal and civil proceedings against the defendant in Thailand in 2010 and 2011 respectively for deception and embezzlement of properties.

9. However, since no probate or administration of the 2010 Will has been granted to the plaintiffs, the defendant claims that the plaintiffs have no right to commence the present proceedings in the Hong Kong court.  The defendant therefore took out a summons dated 16 March 2012 (“the Striking Out Summons”) to strike out the Statement of Claim and to dismiss the action and to vacate the registration of the writ of summons at the Land Registry in respect of the Property.

10. On 10 May 2012, the defendant took out another summons under O 14A asking the court to make a determination on a question of law as to whether the plaintiffs do have the locus standi to commence the present action against the defendant (“the O 14A Summons”).

11. I therefore have to deal with these two summonses.

MERITS OF THE APPLICATIONS

(i)   The Striking Out Summons

12. The defendant’s argument in support of the Striking Out Summons is a simple one.  According to Mr Lin, counsel for the defendant, the general principle is that no person will be recognised by the Hong Kong courts as foreign personal representative of a deceased who was of foreign domicile, and so the plaintiffs cannot sue in their capacity as the foreign personal representatives of the deceased in the Hong Kong courts unless and until they have obtained a grant in Hong Kong.  Failure to do so would render the whole proceedings null and void.  In support of such proposition, Mr Lin is relying on the following authorities: Williams, Mortimer and Sunnucks: Executors, Administrators and Probate, 19^th ed, at §§ 1-22 and 8-07, Dicey and Morris, The Conflicts of law, 14^th ed, at pp 1228-1230, Attorney-General v New York Breweries Co Ltd [1898] 1 QB 205, at pp 216-217 (affirmed by the House of Lords in New York Breweries Co Ltd v Attorney-General [1899] AC 62), Burns v Campbell [1952] 1 KB 15 and Finnegan v Cementation Co Ltd [1953] 1 QB 688.

13. However, all these authorities only support the proposition that a foreign legal representative per se would not be recognised in the Hong Kong courts, with the effect that he cannot take out any proceedings on behalf of the estate here.  The present case is quite different.  The plaintiffs are not simply suing in the capacity of foreign legal representatives per se, and instead they are suing as executors of a will of a testator of foreign domicile, which is admissible to proof in Hong Kong, when lex domicilli does not differ from Hong Kong law in that title to the estate is vested in them by means of the will.

14. This distinction is indeed recognised in The Conflicts of Law in Hong Kong, 2005 ed, at §8.018, where the learned author states the following:

“A personal representative entitled under foreign law is not entitled to sue in a Hong Kong court in the capacity of personal representative without first obtaining a Hong Kong grant. The only personal representative who may sue in that capacity before a Hong Kong court without a Hong Kong grant is an executor appointed pursuant to a will the essential validity of which is determined by Hong Kong law.”

15. The basis for such distinction had been explained in Redwood Music Limited v B Feldman & Co Ltd [1979] RPC 1, where Goff J, as he then was, said in pp 5-6 that whereas an administrator derives his title from the grant of letters of administration and he essentially has no title to the estate prior to such grant, an executor’s title is derived from the will itself (see also footnote [54] in The Conflicts of Law in Hong Kong, 2005 ed, at §8.018).

16. Since the executor derives title from the will, the property of the deceased vests in him from the moment of the testator’s death, so that probate is said to have relation to the time of the testator’s death.  Thus, while an executor cannot rely on his title in any court without producing the grant of probate, that grant is merely the authenticated evidence of his title (see: Williams, Mortimer and Sunnucks: Executors, Administrators and Probate, at §8-02).

17. Hence, in the case that the deceased died domiciled in Hong Kong, the executor may commence an action on behalf of the estate before probate, and he has locus to pursue an action on behalf of the estate and continue the same “as far as that step where the production of the probate becomes necessary” (see: Re Honeycool Refrigeration & Engineering Co Ltd [2009] 1 HKLRD 447 at 450 and Williams, Mortimer and Sunnucks: Executors, Administrators and Probate, at §8-07).

18. If the deceased died domiciled in a foreign country, which is the case here, the executor’s position is the same provided that:

(i)  the foreign will is “admissible to proof” in the Hong Kong courts, which means at least satisfying the formality requirements under the Wills Ordinance, Cap 30; and

(ii)   where lex domicilli (in this case, Thai law) does not differ from Hong Kong law in that title to the estate is vested in him by means of the will.

In order to prove such title, the executor would have to obtain the grant of probate in Hong Kong (see: Williams, Mortimer and Sunnucks: Executors, Administrators and Probate, at §8-02 and Redwood Music Limited v B Feldman & Co Ltd, supra, at pp 6-8 & 10).

19. Based on the facts of the present case and the expert opinion on Thai law of the plaintiffs’ expert, Mr Suntus, the plaintiffs have managed to establish a prima facie case that the these two conditions are satisfied.  Firstly, the 2010 Will has satisfied the requirements of the Will Ordinance, and according to Mr Suntis, such will has also satisfied the requirements of Thai law.  Secondly, Thai law (lex domicilli) is identical to Hong Kong law in that, as explained by Mr Suntus in his opinion, title to the estate is vested in the plaintiffs by means of the 2010 Will as from the time of the death of the deceased.  Moreover, under Thai law, the plaintiffs may commence and maintain any legal proceedings for the estate generally, even though the Thai court has not granted probate by reason of the challenge to the 2010 Will.  Unless and until the 2010 Will is adjudicated void or invalid, the plaintiffs still have such right.

20. The defendant has also obtained expert evidence on Thai law.  According to the opinion of the defendant’s expert, Mr Pongsith, under Thai law, the plaintiffs have no right to commence legal proceedings on behalf of the estate before their appointment as executors or administrators by the court.  Mr Suntus disagrees with such opinion.

21. In view of the difference in the expert opinion, it is not possible for the court to make a final ruling on the plaintiffs’ right under Thai law to commence legal proceedings prior to the grant of probate.  However, since this is very much a triable issue, it is not appropriate for the court to strike out the plaintiffs’ claim at this stage.

22. According to the learned authors of Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (at §8-07), in a case where the executor commences an action before the grant of probate, and the defendant puts the title of the executor in issue, instead of striking out the claim, the court will generally stay the proceedings until probate has been taken out and a reasonable time has passed after it has been submitted to the defendant for inspection.  In my judgment, where a plaintiff has brought an action in Hong Kong in the capacity of the executor of a testator who died domiciled in a foreign country is caught up in a probate dispute in that foreign country, staying the Hong Kong proceedings is the most sensible way of dealing with the matter.

23. This was exactly the order made by A Ho DHCJ, as he then was, in Chao Yue Wah v Mo & Company (Hong Kong) Ltd & Ors, unreported, HCA 2326/2001 (decision on 5 August 2003). The facts of that case are very similar.  The plaintiff brought her claim against the defendant in Hong Kong as the executrix appointed by the will of the deceased but her application for probate in the New York court was contested by the son of the deceased.  The defendant took out an application to strike out the plaintiff’s statement of claim.  A Ho DHCJ disagreed and held that (at §19):

“ … … … the correct approach is not to strike out the action for want of locus on the part of the plaintiff, but stay the proceedings until probate has been taken out and a reasonable time has elapsed after it has been submitted to the defendant for inspection… … …”

24. I agree with the dicta of the learned judge and I would make the same order in the present case.

25. Mr Lin urges the court not to stay the proceedings, as it may take a long time for the Thai court to make a final determination in the Thai probate action.  Property market in Hong Kong is a volatile one. If the court does not vacate the registration of the writ of summons and the defendant is not allowed to deal with the Property during the stay period, the defendant may suffer substantial loss as a result.

26. However, that is something which is quite unavoidable.  As the Property may form part of the estate of the deceased and there is still a pending probate litigation in Thailand to determine who has the right to administer the estate, the most sensible approach for the Hong Kong court is to stay the proceedings pending the decision of the Thai court. As pointed out by A Ho DHCJ in Chao Yue Wah at §20, as a matter of comity, the Hong Kong courts will in general make a grant to the executor or personal representative who has been entrusted with the administration of the estate by the court of such foreign country.  If it turns out that the plaintiffs’ claim is not a legitimate one, the defendant can claim for damages against the plaintiffs personally.

(ii)  The O 14A Summons

27. Further, I cannot see how the O 14A application can assist the defendant’s case.  Pending the decision in the Thai probate action, it is not possible for the Hong Kong court to make a determination now as to whether the plaintiffs do have the locus to sue the defendant.  If the plaintiffs eventually obtain the probate from the Thai court, it is arguable that the properties of the deceased have vested in the plaintiffs from the moment of the deceased’s death (see: Williams, Mortimer and Sunnucks: Executors, Administrators and Probate, at §8-02 and the expert opinion of Mr Suntus).  In such circumstances, the Hong Kong court cannot simply make a final determination on the point of law about the plaintiffs’ locus to sue at this stage.

28. Further, there is dispute between the parties’ Thai law experts about the plaintiffs’ right to sue before the grant of probate by the Thai court.  Question of foreign law is question of fact and not question of law.  As O 14A application is about the determination of a point of law, I do not think that such procedure is appropriate in the present case as the court cannot rely on expert opinion on foreign law, which is question of fact, to make a determination on a point of law.

29. I therefore dismiss both the Striking Out Summons and the O 14A Summons.  Following the approach of A Ho DHCJ in Chao Yue Wah, I make an order to stay the proceedings until probate has been taken out and a reasonable time has elapsed after it has been submitted to the defendant for inspection.  I also provide for liberty to apply.

30. Costs should follow the event, and so I order the defendant to pay for the costs of the two summonses to the plaintiffs.