SHING SHU WING v. SHING KAM CHUEN

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff is one of he surviving children of the deceased, a joint owner of certain parcels of land and sole owner of others. The defendant caused himself to be registered in the District Registry, if it is still being so called, as successor. It is common ground that in addition to the defendant there were other children including the plaintiff surviving the deceased. Hence, the defendant must have been in a similar position as a person generally known as "Sze Lai", described in the New Territories Ordinance as "Manager". Essentially, same as such "Sze Lai", the defendant is and has throughout been a trustee of these New Territories lands on behalf of himself and the other rightful beneficiaries.

2. After the commencement of these proceedings, the defendants filed a Defence which was subsequently struck out. I need not be concerned with the reasons for the striking out as it has not been suggested that it was not so struck out on good grounds. I am told that at the time when the Defence was struck out, another Master declined to sign judgment in favour of the plaintiff in the absence of evidence verifying the Statement of Claim. The plaintiff appealed against that part of the decision of the learned Master, and the case came before Mr. Justice Jones. As a result of certain comment made by the judge, the appeal was withdrawn. Thereafter, the plaintiff caused affidavit evidence to be filed and obtained the present judgment in default of defence against the defendant from Master Wooley. Against that decision of the learned Master, the defendant now appeals.

3. Divers grounds were sought to be canvassed on this appeal by Mr. Lai, counsel for the defendant, but on closer examination counsel was content to have himself confined to one single complaint. The complaint may be shortly stated as follows: Accepting the Master's discretion to grant a declaratory judgment, he was wrong on principle in so exercising his discretion without a thorough examination of the matters alleged in the Statement of Claim.

4. Mr. Lai drew my attention to the passage in Volume 1 of the 1985 Whitebook, marginal reference 15/16/2 and the cases therein referred to, amongst which were Charles v. Shepherd, [1892] 2 Q.B. 622 Wallersteiner v. I Moir, [1974] 3 A. E. R. 217 as well as Metzger and Ors. v. The Department of Health and Social Security, [1977] 3 A .E .R. 444.

5. The principle sought to be relied upon by Mr. Lai on behalf of the defendant has been observed for a great many years. What I am about to say is no pronouncement of any guideline; less should what I am about to say be taken as a complete statement of the practice: For precision, one should go to the learned haw Lords in the various cases cited by Mr. Lai for my assistance. Suffice it for me to say that it is well recognised as a settled principle that in default or even at the joint invitation of the contestants, the Court has always a residual discretion in grunting or refusing a declaratory judgment or any judgment on a pleading appearing proper on the face of it. Particularly, the Court should be slow in granting any declaratory judgment which must be avoided if it is unnecessary and should only be granted if a refusal would cause injustice. Further, no declaratory judgment on a pleading should be given if it does not appear to the Court to be proper so to do or if there is a risk of any or any irremediable injustice.

6. Coming back to the facts of the instant case, the declaratory judgment under complaint is:

7. Accompanying these declarations, the learned Master also ordered an account to be taken and a consequential payment over by the defendant to the plaintiff of any sum so found due on the taking of such account together with the usual order for enquiries and directions. That is by no means a final judgment. It is a judgment which requires to be implemented, and in that sense interlocutory.

8. In order to have the plaintiff's claimed interest clearly delineated, both of these declarations are necessary for the working out of this interlocutory judgment for an account. Not only are they necessary, they are also declarations which, in my view, cannot be challenged on the facts conceded by the defendant. The plaintiff's entitlement and the duties of the defendant as a trustee for the plaintiff are well defined by cases which have been decided with reasonable clarity in the past. The declarations prayed for and obtained from the learned Master would not cause any forseeable risk of Prejudice or injustice, and indeed Mr. Lai, counsel for the defendant, has yet to suggest that the relationship between the plaintiff and the defendant is to be regulated otherwise than in accordance with the pronouncements in these declarations.

9. Clearly, the learned Master correctly exercised his discretion in acceding to the plaintiff's application for the declaratory judgment, and in doing so he can in no way be faulted.

10. The appeal of the defendant is in my view wholly unmeritorious. I order that the appeal be dismissed with costs. I propose to order taxation to be on the common fund basis.

(Counsel makes no further submissions)

 

11. I order the plaintiff's costs to be taxed against the defendant on the common fund basis.