YUNG SIU CHEE MARGARET AND OTHERS v. CHOY CHING WA FIONNE AND OTHERS

HCMP 1682/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1682 OF 2016

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D E C I S I O N (2)

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1.  The plaintiffs, supported by the 1^st defendant, apply for a direction that the court should first deal with the issue relating to interim distribution of the estate of YUNG YAU (翁祐), deceased, leaving the rest of the claim and counterclaim to be heard together with the 2^nd to 5^th defendants’ recent application to remove the executrices by way of originating summons taken out on 7 July 2017. The basis of the application is that the grounds relied upon by the 2^nd to 5^th defendants to remove the executrices are the same or substantially the same as those raised in the points of counterclaim pursued by them in these proceedings.

2.  Mr Ken To, on behalf of the 2^nd to 5^th defendants, objects to the plaintiffs’ application and submits that the court should now proceed to hear all issues raised in the claim and counterclaim, or alternatively all issues with the exception of that relating to the NY Loan.

3.  Essentially, 2 points are made by Mr To:-

(1) the plaintiffs made the same proposal before Madam Recorder Winnie Tam SC on 16 May 2017 but the learned Recorder directed that the claim and counterclaim should be heard together; and

(2) further delay in the resolution of the counterclaim would not be in the interest of the administration of the estate, and he points to the substantial delay in the administration of the estate since the passing away of the deceased in 2004 in support of his argument.

4.  As to (1), it should be noted that at the time of the hearing before the learned Recorder, the 2^nd and 5^th defendants had not yet taken out proceedings to remove the executrices, which they did only on 7 July 2017.  The landscape now is therefore materially different from what it was in May 2017.

5.  As to (2), I agree that there has been substantial delay in the administration of the estate.  However, the 2^nd to 5^th defendants did not seem to be bothered by the delay in the past.  I am told by Mr Leung that the first time that they urged the executrices to provide an account or distribute the estate in writing was in December 2015, some 11 years after the passing away of the deceased.

6.  On the other hand, for the court to proceed to hear the counterclaim and make findings on various issues now could lead to multiplicity of proceedings since such findings can be re-opened by other beneficiaries in the removal proceedings who have not yet been joined as parties to those proceedings.

7.  Moreover, on a practical level, the court has reserved only 2 days for the present hearing and nearly 1 day has been spent on interlocutory issues, including the question of admissibility of the second affirmation of the 1^st defendant.  In reality, there will unlikely be sufficient time to deal with all the issues raised in the claim and counterclaim within the 2 days as allotted.

8.  For the above reasons, I direct that the question of interim distribution of the estate shall first be dealt with, and the rest of the claim and counterclaim shall be heard at the same time as the 2^nd to 5^th defendants’ application to remove the executrices.