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HCA017906/1999
HCA 17906/1999
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 17906 OF 1999
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TSE YEUK MONG |
Plaintiff |
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AND |
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TSE SHAU HUNG, AGATA, the Administratrix of the estate of Tse Kam Shing and Yau Choi Ming |
1st Defendant |
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TSE WAN YAU |
2nd Defendant |
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TSE KAM MING |
3rd Defendant |
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Coram: Hon Yeung J in Chambers
Date of Hearing: 3 October 2000
Date of Decision: 3 October 2000
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REASONS FOR DECISION
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1. This is an appeal against the order of Master Cheung ordering the Plaintiff to give further and better particulars of only part of the Statement of Claim before the service of defence by the Defendants.
2. The Defendants, including the estate of the 1st Defendant, are cousins and they have a common grandfather, Tse Wing Cheung who was one of the registered owners of the properties in question. The other co-owners apparently had not left any issues.
3. Tse Wing Cheung had two sons, namely Tse Pat Chuen and Tse Sung. The Defendants are the sons of Tse Pat Chuen and the Plaintiff is the only son of Tse Sung.
4. It is the Plaintiff's case that he was entitled to inherit half share of the properties in question as the sole beneficiary of the estate of his father, Tse Sung.
5. But inadvertently or mistakenly, the Defendants' father Tse Pat Chuen alone succeeded to the said properties in 1955. In the memorial registering the succession in question, Tse Pat Chuen was stated as the sole successor of Tse Wing Cheung and the other co-owners of the properties in question. When Tse Pat Chuen passed away in 1966, the properties were also inadvertently and/or mistakenly succeeded by the Defendants.
6. The Plaintiff claims that a trust exist. The suggestion is that when Tse Pat Chuen inherited the properties in 1955 in his sole name, he held them as the trustee for the half share that the Plaintiff was entitled to as the sole beneficiary order his father's estate.
7. The Defendants now want further and better particulars of the allegation of the mistake and/or inadvertence and/or error stated in paras.9, 10 and 12 of the Statement of Claim.
8. The suggestion is that without those particulars, it is not possible for the Defendants to properly plead to the allegations raised in the Statement of Claim.
9. As I have observed in the course of counsel's submission, the Plaintiff's case is indeed very simple.
10. The suggestion simply is that his father Tse Sung was one of the only two sons of Tse Wing Cheung and as such, he is entitled to the half share of the properties. As the only son of Tse Sung, the Plaintiff, too, is so entitled.
11. When Tse Pat Chuen succeeded to the properties in 1955 and when the Defendants succeeded to the properties in 1966, no regard was paid to the Plaintiff's interest. Hence, the suggestion that the Defendants are holding the properties as trustees for the Plaintiff's half share interest.
12. The Plaintiff has pleaded the mistake and/or inadvertence and/or error based on his case even though such assertion may not be necessary to maintain his claim.
13. In fact, there can be no misunderstanding about his actual case. What the Plaintiff has mentioned to this Court in the course of the hearing would have made it undeniable any way.
14. Insofar as the raising of the objection or otherwise by the Plaintiff to the succession in 1955 and 1966 are concerned, I am not persuaded that the requested particulars are necessary and desirable to enable the Defendants to plead to them before the filing of the defence.
15. Again as I have observed in the course of counsel's submission, the Plaintiff's case on the proper reading of the Statement of Claim has been supported by adequate particulars. What the Plaintiff said to this Court in the course of hearing would make any suggestion otherwise untenable.
16. I have considered the background of the matter and the able submission by counsel for the Defendants. I am not persuaded that the Master was wrong in refusing the requested further and better particulars of the Statement of Clam, particularly before the filing the defence. This is a matter which involves the exercise of a discretion on the part of the Master.
17. In my view, there is no valid basis upon which I can properly interfere with the exercise of that discretion. In the circumstances, the appeal has to be dismissed and I so order.
18. I also order that the defence has to be filed within 14 days and the reply if any has to be filed and served within a further 21 days.
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(W YEUNG) |
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Judge of the Court of First Instance
of High Court |
Representation:
Plaintiff in person
Mr Hin-lee Wong, instructed by Messrs Wong, Poon, Chan, Law & Co., for Defendants
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