TOMMY KONG TAI YEN v. JOHN HOUNG TAI YEN

1988 No. MP1602

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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RULING

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1. By consent, it is ordered : Order in terms of the signed draft consent order which finally resolves the parties' dispute in these proceedings.

2. An application is now being made on behalf of the plaintiff for an order that the plaintiff be fully compensated in costs out of the deceased's estate.

3. As for the facts, suffice it to say that after the deceased passed away, a Deed of Family Arrangements was executed, under which the plaintiff was expected to be paid certain agreed sums by the appointed personal representatives of the estate of the deceased. The deceased died intestate. Pursuant to that Deed of Family Arrangements, Letters of Administration were subsequently applied for by the parties hereto and thereafter granted. The plaintiff and the defendant thus became administrators. It would seem that there was hardly any justification for the defendant as a co-administrator to refuse to implement that particular provision in the Deed of Family Arrangements so as to effect payment to the plaintiff as envisaged.

4. By this Originating Summons issued by or against a party in his personal capacity, the plaintiff claims against the defendant apparently as co-administrator for the payment of those sums on, inter alia, the ground that the defendant has failed to duly administer the estate, in particular he behaved unreasonably in the discharge of his duties and obligations towards the plaintiff as an admitted creditor. Interest on the said sums due and payable to the plaintiff by the estate is also claimed. As against the defendant personally, the plaintiff seeks costs. It is difficult to resist the conclusions that the allegations against the defendant are well founded and that, if they were substantiated before me, the defendant would be liable to pay the plaintiff at least costs on a common fund basis. Counsel for the plaintiff goes further in his suggestion that the plaintiff would have been entitled to claim against the defendant personally costs on a trustee basis. See O.62 r.28 RSC.

5. The parties have now come to terms. The court is presented with a signed draft consent order. A Con has been made in terms, which by the defendant is subjected to a more favourable order for costs.

6. Counsel for the plaintiff seeks a further order against the estate under O.62 r.6(2) of the Rules of Supreme Court for the shortfall in the costs order embodied in the Consent Order which I have just made on invitation. If the shortfall were to be paid out of the estate, it is clear that the other beneficiaries than the plaintiff and the defendant would be prejudiced. The estate has not been separately represented, nor have the other beneficiaries. It does not seem that either the estate or the other beneficiaries have even been put on notice of the plaintiff's present application. The parties are not procedurally suing or sued in their representative capacity. They are not so designated in the Originating Summons.

7. What is being suggested is : the plaintiff had a claim against the defendant for full reimbursement in legal and other costs. For fear of the usual litigation hazards, "acting for his own benefit rather than for the benefit of the" estate, a bargain was struck by the plaintiff with the defendant, resulting in the signing of the draft consent order which provides for a less comprehensive order for costs. It is not a case that the plaintiff was unable to keep himself fully indemnified or reimbursed. The case is : suppression of the plaintiff's right to claim full indemnity is self-induced. By agreeing to the draft consent order with the defendant, the plaintiff has effectually compromised on a lesser claim in costs. It would not be open, in my view, to the plaintiff to seek contribution from the estate or the other beneificaries, none of whom is present today.

8. I am not persuaded by counsel that O.62 r.6(2) of the Rules of Supreme Court can be made to apply to the circumstances of the instant application. The plaintiff's application cannot be acceded to even with the blessings of the defendant. I find it, therefore, quite unnecessary to call upon Mr Oldham, solicitor for the defendant. Whether the defendant would consent to or contest the plaintiff's application would take the matter no further. The application of the plaintiff is therefore refused.