TAIYO KOGYO CO, LTD v. UBS AG AND ANOTHER

HCMP 1097/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1097 OF 2006

-------------------

-------------------

-------------------

______________________

J U D G M E N T

______________________

1. These proceedings concern the funds held in a Japanese Yen account particularized in the originating summons.  The account was opened with the 1^st defendant’s branch in Hong Kong on 25 August 2003 in the name of Mr Suto Shohei (“Mr Shohei”). 

2. Mr Shohei was formerly the president of the plaintiff.  On the evidence before the court I am satisfied that the account was opened so that funds deposited therein were to be held by Mr Shohei on behalf of the plaintiff before they were to be remitted to the plaintiff eventually.  After the account was opened funds were credited to the account as shown in the evidence.  However, on 6 September 2004 Mr Shohei passed away in Japan before the funds in the account were remitted to the plaintiff. 

3. Mr Shohei is survived by his widow, the 2^nd defendant.  She accepts that the funds in the account did not belong to Mr Shohei and she makes no claim to the same.

4. On the evidence before me the 2^nd defendant is the sole owner of the estate of Mr Shohei.  She does not dispute the plaintiff’s entitlement to the funds in the account. 

5. The 1^st defendant adopts a neutral stance in these proceedings. 

6. On the evidence before me I am satisfied that the plaintiff is entitled to the relief sought.  I make an order in terms of paragraphs 1 to 4 of the originating summons save that in paragraph 1 the word “currently” should be inserted between the words “funds” and “held” so that it should read “a declaration that the funds currently held in a Japanese Yen account (Account No. : 0/212, 371/02, 07) with the 1^st Defendant’s branch in Hong Kong in the name of Mr Shohei Suto (now deceased) (the “Funds”) were monies held by Mr Shohei Suto prior to his death on 6 September 2004 on trust for the Plaintiff”. 

7. The question of costs has also been agreed between the parties.  I make an order that the 1^st defendant’s costs of and occasioned by the originating summons be paid out from the funds in the account to be taxed on a trustee basis and I further direct that the 1^st defendant be allowed to deduct such costs from the funds before paying the same to the plaintiff.  I also make an order that the 2^nd defendant’s costs of and occasioned by the originating summons be also paid out of the funds.  Such costs to be taxed on a trustee basis if not agreed.