MA YU WO v. THE PERSONAL REPRESENTATIVE OF MA WING FUNG DECEASED

DCCJ5248/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5248 OF 2002

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J U D G M E N T

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1. This is an application for summary judgment. In this action, the Plaintiff claims against the estate of the deceased, Ma Wing-fung, in the sum of $300,000, being the total amount of money lent by the Plaintiff to the deceased. The action is defended by the personal representative of the estate of the deceased.

2. It is the Plaintiff's case that the loan agreement was an oral one, and he has also produced some withdrawal slips and bank transfer documents to substantiate his claim. In response, the Defendant contends that these documents do not conclusively show that there was an oral agreement between the parties. However, since there is no evidence to rebut the Plaintiff's oral evidence, the Defendant has, in my view, failed to discharge the burden of raising a triable issue in this regard.

3. However, the relationship between the Plaintiff and the deceased may be more complicated than it appears on the evidence available at this stage. It is accepted that the deceased was the operator of a chit fund of which the Plaintiff was also a participant, and so the money transactions relied upon by the Plaintiff might in fact be contributions made by the Plaintiff in respect of the same. The Defendant also wishes the Plaintiff to disclose all the documents relating to the chit fund arrangement.

4. In my judgment, the Defendant, being the personal representative of the estate of the deceased, should be given an opportunity to investigate these matters. The Plaintiff should be asked to produce all the documents relating to the chit fund arrangement, and he should also be cross-examined by the Defendant in respect of the said arrangement.

5. I am not saying that once an action is defended by a personal representative of a deceased estate, leave to defend should automatically be granted. However, it seems to me that the relationship between the Plaintiff and the deceased in the present case may be more complicated than it appears, and so the Defendant, facing with the difficulty of preparing the defence in the absence of the deceased, should be given the opportunity to defend the claim.

6. I therefore find that there is a reason which ought to have a trial, and I grant unconditional leave to the Defendant to defend the claim.