NEW WELL MASTER CO LTD (Formerly known as WELL MASTER CO LTD) v. TIDJAN ANANTO, his GUARDIAN AD LITEM

HCA 558/2015

[2024] HKCFI 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 558 OF 2015

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D E C I S I O N

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A. Introduction

1.  For the main disputes between the parties and the trial relating to them, I refer to my Judgment handed down on 30 September 2021[1] (the “Judgment”).  For the facts leading to the Representation Summons and my reasons for dismissing P’s Amended Discovery Summons[2] for discovery of documents said to be relevant to the Representation Summons, I refer to my Decision of 16 June 2023[3] (the “Discovery Decision”).  Unless otherwise specified below, I adopt the same terms and abbreviations as used in the Judgment and Discovery Decision.

2.  This is the substantive hearing of the Representation Summons.

3.  Mr Charles Wong of Messrs Charles Wong & Co appeared for P.  Ms Deanna Law continued to appear for AA.

B.  Some procedural background

4.  To recap in summary, and to set out some of the further development of the case relevant to the present hearing:

(a)  This Court for reasons set out in the Judgment dismissed P’s claim and allowed TA’s counterclaim.  P is appealing against that decision.  A Notice of Appeal was filed on 27 October 2021[4]. By summons of 22 November 2021, P seeks a stay of execution of the Judgment pending appeal.  On 24 November 2021, and by consent, directions were given for the further conduct of the application for stay, including the filing of evidence for the same.  On 28 December 2021, TA passed away in Indonesia.  On 20 April 2022, subsequently amended, AA took out the Representation Summons for inter alia an order to represent TA’s Estate.  P opposed the application.  It took out the Discovery Summons which this Court for reasons set out in the Discovery Decision dismissed;

(b)  After that dismissal, P by summons of 6 October 2023 (the “Further Evidence Summons”), set down for 15 minutes and returnable on 27 October 2023, sought leave to file the 6^th affirmation of Wang Kwei Chi (“Wang/Aff6”) to reply to Rachman/Aff and AA/4.  The proposed further evidence surrounded the Will, TA’s testamentary capacity, and Indonesian inheritance law.  I heard parties on 27 October 2023.  I had also read parties’ written submissions lodged for that hearing.  For reasons given in court, principally for lack of relevance and absence of exceptional circumstances in the context of O.32 r.11A, I on 27 October 2023 dismissed that application;

(c)  I record that despite this Court’s dismissal of P’s Further Evidence Summons, Mr Wong saw fit to insist upon inclusion of the Further Evidence Summons in the hearing bundle for the present hearing, and even makes reference in his written submission lodged on 8 January 2024 to various attachments to the Further Evidence Summons.  There is neither basis nor justification for such reference.  I ignore the relevant references (in particular those in §§30 and 31 of his written submissions);

(d)  AA has made application in Hong Kong for probate of TA’s estate.  The matter has been in progress.  Relevant documents have been placed before this Court.  Notably:

(i)    P on 10 May 2023 filed Caveat No. HCCA 2932 of 2023;

(ii)   \On 7 November 2023, P as the caveator filed its Appearance to Warning.  Matters raised include TA’s testamentary capacity, the existence of the Will, and P’s alleged interest in the Property on the basis of the claim in the present action which this Court has dismissed.  The concluding paragraph of the Appearance to Warning reads as follows:

“As the issues stated in (1) to (7) above are truly contentious, the parties may need to resort to formal probate action for determination of the true status of AA. Further, as the issues as to whether the suit properties was held by the Deceased in his lifetime in trust for the Caveator is not yet resolved by the Appeal Court , the Caveator hereby wish to apply for directions from the probate master for the future conducts of the Caveat proceedings.”

(iii)  On 27 December 2023, P filed a Supplemental Appearance to Warning. Various correspondence between the parties’ respective solicitors are recited on principally on the question as to whether P’s alleged interest in the Property was a contingent one.  P further claims that “as no action was taken by the warning party to strike out the Caveator’s Appearance to warning, it is assumed that the Caveat and the Appearance to Warning are not challenged by the warning party …”;

(iv)  On 2 January 2024, AA filed an Amended Warning to Caveator.

5.  Given the death of TA and the history of the matter, and despite my Judgment, P remains in occupation of the Property.  The appeal remains pending.

C.  The Representation Summons

6.  According to the margin reference, the Representation Summons was originally issued pursuant to “O15 r 5 … and Inherent Jurisdiction”.  That margin reference has since been amended.  It now reads “O15 r 15 … and Inherent Jurisdiction”.

7.  AA seeks thereby the following orders:

“1. [AA] be appointed to represent the Estate of [TA] (‘the Estate’) in this action and in CACV 489/2021;

2. This action and CACV 489/2021 be carried on by [AA] as if he had been substituted for the Estate;

3. Leave to amend the name of the Defendant in the title of the Writ of Summons in this action as ‘[AA], appointed by an Order dated [ ] to represent the Estate of [TA], Deceased’ within 7 days hereof.”

8.  I record that in the course of the hearing, in answer to this Court’s requests for assistance, Ms Law informed this Court that:

(a)  In respect of §1, AA only seeks from this Court his appointment to represent the Estate of TA “in this action”;

(b)  §2 is abandoned;

(c)  In respect of §3, if §1 as clarified is granted, the heading of the action in relation to the defendant will become “TIDJAN ANANTO, since Deceased, (ANDREAS ANANTO, appointed by an Order dated [ ] to represent the Estate of TIDJAN ANANTO, Deceased”.

D.  O.15 r.7(2) vs O.15 r.15(1)

9.  I have in the Discovery Decision considered the scope of O.15 r.15. I have also contrasted the wording of O.15 r.15(1) with that of O.15 r.7(2). I repeat and adopt my discussion in §§26 to 31 therein.  I repeat what I have observed at §30 of the Discovery Decision, that the exercise of the courts’ power under O.15 r.7(2) is premised upon the interest or liability of a party having been assigned or transmitted to or devolved upon some other person, such that “that other person” may be ordered to be made a party.  O.15 r.15(1) is not so premised.  The main conditions are instead the death of a person who was interested in the matter in question, and that he had no personal representative.  The appointee may be a potential personal representative of the deceased, but there is no rule that he has to be. 

10.  As observed by Coleman J which I respectfully agree, O.15 r.15(1) deals with, compared with that of O.15 r.7(2), a broader situation.

11.  I stress 2 matters:

(a)  An application under O.15 r.15(1) can be made by any party to the proceedings:

(i)    The entitlement to apply under O.15 r.15(1) is not confined to any person who is likely to be appointed the personal representative of the deceased.  I refer in this regard to §29 of Cornwall, where Coleman J observed, which observations I respectfully agree, that:

“In passing, it might also be noted that rule 15 permits an application by ‘any party’. For example, a confident primary respondent whose conduct is the target of an unfair prejudice petition might wish to apply for someone to represent the estate to ensure that the predicted dismissal of the complaints binds all those who commenced the proceedings and their successors.”

(ii)   Hence, if P is confident of the merits of its appeal, Madam Wang having asserted that the grounds are strong, and to avoid any delay, P in fact itself can apply for the appointment of a representative to represent TA’s estate so that the matters can be proceeded with, so that any further adjudication will be binding on the estate.  There is little basis to wait for any grant of probate to AA.  There is even lesser basis to resist AA’s application for grant;

(b)  “Change of parties”:

(i)    In §15 of his written submissions, Mr Wong submits that (his original emphasis):

“… in order to satisfy the requirement of O.15.r.7 governing the change of parties caused by death, if AA want to apply to court to carry on this proceedings as substitute under his own name , AA should show that the interest of the late Defendant is this proceedings is assigned, transmitted or devolves upon him …”

(ii)   Whilst the heading of O.15 r.7 reads “Change of parties by reason of death, etc”, it does not mean that O.15 r.15(1) has no application in a case where the deceased died at a stage when he was a party to an ongoing action.  Quite apart from section 18(3) of the Interpretation and General Clauses Ordinance Cap 1[5], the wording of O.15 r.15(1) does not preclude its application in such a case. Further, §15/15/7 of the Hong Kong Civil Procedure 2024 Volume 1 sets out the following practice upon an order under O.15 r.15(1) having been made:

“The title of the proceedings will thereafter contain the name of the person appointed: thus ‘A.B. appointed by order dated [ ] to represent the estate of C.D. deceased’. The words ‘since deceased’ will also be added after the name of the party whose estate is represented, if he was a party.”

That practice clearly contemplates the application of O.15 r.15(1) to a case where a party in an action died whilst as such.  Cornwall was indeed a case in which the 2^nd Petitioner therein was appointed to represent the estate of the 1^st Petitioner who at the time of his death was a party to the proceedings.  In so far as Mr Wong seeking to submit to the contrary, I do not accept those submissions.

E.  AA’s invocation of O.15 r.15(1)

12.  One main and constant stance of P is that AA’s present application ought to be under O.15 r.7(1).  I repeat what I have recorded and stated in §§15 and 43 (in particular §43(t)) of the Discovery Decision.

13.  P maintains this stance for the purpose of the present hearing[6], leading to Mr Wong submitting on its behalf that (the emphasis being original)[7]:

“By issuing the Amended Summons in the present form, AA is in fact applying for the reliefs that could only be granted under O.15 r.7, but dressed up as O.15 r.15 application so that he is not required to satisfy the condition that the deceased’s interest or liability in the suit was transmitted or devolves on him by proving the validity of the alleged 2020 Will made by the deceased.”

14.  At least in so far as §§1 and 3 of the Representation Summons is concerned, §2 now having been abandoned, I reject those submissions.  TA was a party to the action.  He clearly “was interested in the matter in question in the proceedings”.  At this stage, he has no personal representative.  The prospect or possibility at some stage in the future of a personal representative being appointed does not preclude the application of O.15 r.15(1).

15.  The adoption and maintenance by P of that stance has led P to dwelling at length on, and seeking discovery in relation to, issues like the validity of TA’s Will, the validity of the succession of the Property by AA (and other Siblings), expert evidence on the inheritance law in Indonesia, expert evidence on the mental capacity of TA, etc.  Those issues are said to be relevant to the further issue as to whether “the interest or liability of [TA] is assigned or transmitted to or devolves upon” AA.  I repeat what I have observed above and in §43(t) of the Discovery Decision.  For an application under O.15 r.15(1), there is no need by AA to show any assignment, transmission or devolution of interests upon him.  P’s interest in the Representation Summons is to see to the appropriate representative being appointed in place of the late TA so that his estate will be bound. 

16.  Mr Wong seeks to distinguish Cornwall on the basis that when the application was first made before the Master, it was made pursuant to O.15 rr.6A and 7[8]. That does not assist Mr Wong.  When the matter was before Coleman J on appeal, reliance was clearly placed upon O.15 r.15.  As observed by his Lordship, “I accept that [O.15.r.15] may be taken into account notwithstanding that it was not referenced in the margin to the original summons…”[9].

17.  Mr Wong relies heavily on Lily Cheung, and in particular the fact that the action in which the representation order was made by Poon J (as the CJHC then was) (“HCMP 635/2006”) was upon agreement by all counsel stayed pending the determination of HCAP 3/2008 or further order[10]. Mr Wong further relies upon the Court of Appeal’s observations upon appeal, that:

“In our view, [HCAP 3/2008] represents the key to resolving the procedural difficulties besetting this case, and points the most practical and cost-efficient way forward” [11],

and that:

“In adjourning this appeal on 26 June 2009, the Court of Appeal took the view that the probate action was the key to the resolution of the underlying disputes. At [65] to [68], the Court of Appeal explained the likely positions depending on the outcome in the probate action.” [12]

18.  In my view, none of those assists P:

(a)  Lily Cheung involves very different facts;

(b)  There were between the parties at least 3 sets of parallel proceedings going on;

(c)  In HCMP 635/2006, Lily Cheung and the 2^nd defendant both claimed to be the adopted daughters of Madam Luk, a mentally incapacitated person subsequently deceased.  The main fight concerned the beneficial ownership of 2 properties.  Lily Cheung as the plaintiff started HCMP 635/2006 against the Official Solicitor (previously the committee of Madam Luk’s estate) as the 1^st defendant, and the 2^nd defendant for inter alia a declaration that the properties belonged solely to Madam Luk’s estate, and an order for appointment as administratrix of Madam Luk’s estate without the power to distribute the residue thereof;

(d)  As explained by Poon J[13]:

“In an action commenced by a purported beneficiary to obtain the protection of the court to ensure the due administration of the estate, it is necessary to join the personal representative of the estate or to a suitable party to represent the estate. In the absence of joinder, the action is irregular, though not a nullity, and is liable to be struck out …”

(e)  As observed by the Court of Appeal in the 1^st Appeal Judgment:

“5. Because at bottom this is a fight between two allegedly adopted daughters of the deceased, Madam Luk, over the assets of the estate of Madam Luk; the main focus is as to the ownership of properties hitherto held by Madam Luk, two of which had been held by Madam Luk and the 2^nd defendant as joint tenants, albeit Madam Luk’s interest in both appears to have been ‘gifted’ to the brother of the 2^nd defendant at a time prior to her death when there was doubt over her mental capacity.

…

27. … it seems tolerably clear that the representative order which the learned judge was persuaded to grant at the request of the plaintiff’s leading counsel … was aimed at fulfilling two roles: first, it was sought in a bid to ‘save’ the Master’s appeal, the Master having held that, absent a representative order Lily had no locus thus to pursue the Official Solicitor, and second, and perhaps equally as important, it was no doubt considered warranted as a matter of fundamental principle in light of the nature of the relief as sought in the originating summons.”

(f)  Poon J summarised the nature of HCAP 3/2008 as follows:

“Then on 11 March 2008, the plaintiff commenced HCAP 3/2008 against Mr Cheung [who claimed to be Madam Luk’s lawful husband], seeking orders that his application for the letters of administration be dismissed and that the letters be granted to her. Mr Cheung has already filed his defence and counterclaim and pleadings have now been closed. Whether Mr Cheung was Madam Luk’s lawful husband and whether the plaintiff was her adopted daughter are hotly in dispute.”

(g)  It was against such facts and background that the Court of Appeal observed and took the view that the probate action was the key to the resolution of the underlying disputes.  The Court of Appeal at [66] to [68] of the 1^st Appeal Judgment explained why:

“66. Were the plaintiff, Lily, ultimately to succeed in this probate action, and duly to obtain the grant of letters of administration, this would align with the present position whereby she presently enjoys the limited representation order as granted by the learned judge; she also then, if thought appropriate, would be in the position on behalf of the estate to take over conduct of HCA 2498 of 2004 in lieu of the Official Solicitor, whose name at least remains on the title to this case.

67. Conversely, if and in so far as Lily’s claim to be Madam Luk’s adopted daughter is dismissed, and the status of Tung Mei and of Mr Cheung, the alleged husband, carries the day, and if as a consequence Mr Cheung is granted letters of administration, then equally clearly Lily cannot and, subject to appeal, doubtless would not, attempt to resist the substitution of Mr Cheung, as grantee, in the further conduct (if any) of the present case, albeit since there appears to be no dispute between Mr Cheung and Tung Mei as to the status of each other, we doubt whether there would be perceived any necessity for the present proceedings to go further.

68. Moreover, the resolution, one way or the other, of HCAP 3 of 2008, seems to us to be likely practically to inform the costs’ position in the present case, and thus to be likely to remove the necessity for argument upon what we have termed the 2^nd defendant’s ‘jurisdiction point’; in this regard one cannot be certain – we can conceive of a scenario where this may not turn out to be the case – but in our view the overwhelming probabilities are that with the determination of the rival claims in the probate action, extant peripheral arguments such as this are likely effectively to fall away.”

(h)  Upon conclusion of HCAP 3/2008, the 2^nd defendant was declared to be the lawful adopted daughter of Madam Luk, and that the plaintiff had no interest in her estate.  It is in such context that the Court of Appeal observed[14] that “[it] follows that the Plaintiff cannot have any locus standi to represent the estate of [Madam Luk]”.  That decision is no authority for any proposition that only the personal representative can be an appointee under O.15 r.15(1);

(i)  There are no “underlying disputes” between P, AA and the estate of TA similar to those between the parties in Lily Cheung.  P does not claim to be a beneficiary of TA’s estate, or is otherwise entitled to any grant.  It is only seeking to argue that TA had been holding the Property on trust for it.  Its interest is in ensuring that the estate be properly bound. It otherwise has no interest in the probate of TA’s estate;

(j)  The resolution of the probate of TA’s estate would not resolve any dispute between P and TA (or his estate) in relation to the ownership of the Property.

19.  In the course of the hearing, Mr Wong further submitted, unsupported by any authority, that somehow, if AA is ultimately not appointed as TA’s personal representative, time and costs would be wasted, and somehow steps taken in the interim might depending on the nature be nullified.

20.  I reject the submissions.  If §1 of the Representation Summons is granted, steps in the proceedings while TA’s estate being represented by AA will not be nullified by reason merely of AA not ultimately appointed as the personal representative.  I repeat §11(a) above.  

21.  In my view, AA’s invocation of O.15 r.15(1) is justified.  As I have observed above, TA was as a party interested in the matter in question in in the proceedings.  AA has been his next friend.  TA has no personal representative at this stage.  TA was a foreign national.  AA has commenced application for probate of TA’s Estate in Hong Kong.  AA anticipates that process will take time.  As stated above, P has also, as caveator, has entered into Caveat No. HCCA 2932 of 2023 in that regard.  In the meantime, P remains in occupation of the Property.  Further proceeding of this action and the action has been and will continued to be impeded unless proper representation of TA’s estate is arranged and appointed.  I accept Ms Law’s submissions[15] that it would be reasonable and beneficial to all parties that someone be appointed now to represent TA’s estate for the purposes of the ongoing proceedings.  P’s interest is to see to the TA’s estate being properly bound.  On the facts of the present case, O.15 r.15(1) offers the proper avenue and mechanism for that.  The alternative is to wait till the resolution of TA’s probate so that O.15 r.7(2) can be invoked.  There would if so be delay.  I do not see how the parties and the administration of justice can benefit from that.  Nor do I see any legitimate reason why P wants that, except possibly as an opportunistic move seeking to take benefit of TA’s unfortunate death so as to able to stay in the Property for as long as possible. 

22.  Mr Wong asked this Court to weigh between whether to grant any representation order.  He submitted that there was no urgency in the matter, and that TA or his estate would not suffer any prejudice even if everything is to be put on hold pending resolution of TA’s probate.

23.  I reject those submissions.  Judgment has been granted in favour of TA. He (now his estate) is entitled to the fruit of the judgment.  In the meantime, P remains in possession of the Property.  Madam Wang herself says that “We are also unable to pay mesne profits without ending in financial ruin as both GG and I have retired from gainful employment for a long time and are living off our savings”[16]. Any undue delay in the matter by itself works to the prejudice of TA’s estate.

24.  Mr Wong submits also that given TA’s will made in 1985, there could be another executor who might compete for the appointment.  I reject those submissions as being speculative.  I repeat §§17 and 22 of the Discovery Decision.

25.  I have considered all the relevant factors.  In my view, the facts of the present case weigh clearly in favour of an appointment to represent TA’s Estate.

F.  Whether AA be appointed 

26.  The next question is whether AA should be appointed under O.15 r.15(1).

27.  When deciding whether to make an appointment and if so who, this Court’s discretion is engaged.

28.  Ms Law points to the following factors in favour of appointing AA[17]:

(a)  The absence of any personal representative of TA’s estate at this state;

(b)  AA’s involvement in the proceedings all along, and in particular his appointment as TA’s guardian ad litem;

(c)  All of the other Siblings consent to AA’s appointment being sought;

(d)  Should probate be formally granted at a later stage in Hong Kong, AA is most likely to become personal representative of TA’s estate;

(e)  It would be reasonable and beneficial to all parties for someone be appointed now, so that the present proceedings may be quickly resolved.

29.  Mr Wong emphasizes that AA is not going to be the “true personal representative”.  He comes back again to issues like TA’s alleged mental incapacity to make the Will, questions he says which suggest even the non-existence of the Will, whether there is any signed Will, and AA’s alleged misconduct in the conduct of the Representation Summons, such that he is not a suitable or trustworthy person for the appointment[18].

30.  I have considered those matters.  This application is not a probate action.  I am not prepared to allow it to be turned it into one.  I repeat that this is an application under O.15 r.15(1).  I repeat also §20 above.  TA’s conduct of the proceedings while he was alive had in effect been entrusted to AA.  He has been so involved.  Upon TA’s death, the Siblings consent to AA’s appointment.  It is appropriate to appoint AA as the representative of the estate.  I do not accept that the evidence Mr Wong points to suggests otherwise.

31.  In relation to Mr Wong’s submission that there might be another competing appointee in the light of the Will made in 1985, I repeat my observations above.

32.  In my view, AA is an appropriate candidate to be appointed to represent TA’s Estate.  I allow §1 of the Representation Summons as modified.

G.  Stay?

33.  Mr Wong submits that even if AA is to be appointed, the appointment should be stayed pending the grant of TA’s probate.  He relies on Lily Cheung.

34.  I have explained why Lily Cheung does not assist P.  I reiterate (1) that there are no “underlying disputes” between P, AA and the estate of TA similar to those between the parties in Lily Cheung; (2) that the resolution of the probate of TA’s estate would not resolve any dispute between P and TA (or his estate) in relation to the ownership of the Property; and (3) my view expressed above that upon §1 of the Representation Summons as modified being granted, steps in the proceedings while TA’s estate being represented by AA will not be nullified by reason merely of him ultimately not being appointed as the personal representative.

35.  I refuse any stay.

H.  Disposition

36.  In respect of §1 of the Representation Summons, I make an Order that AA be appointed to represent the Estate of TA in this action.

37.  In respect of §3 of the Representation Summons, I grant leave that the heading of the action in relation to the defendant will become “TIDJAN ANANTO, since Deceased, (ANDREAS ANANTO, appointed by an Order dated [the date of the order] to represent the Estate of TIDJAN ANANTO, Deceased”.

38.  §2 having being abandoned, I make no order in that regard.

I.  Costs

39.  I order on a nisi basis that P shall bear 80% of the costs of and occasioned by the Representation Summons, with certificate for counsel, to be summarily assessed, which summary assessment will be conducted together with the costs of the Amended Discovery Summons[19]. The discount is to reflect the matters recorded in §8 above.