WONG CHAK MING v. WONG YUEN WAN ALICE AND OTHERS

HCMP 3395/2016

[2019] HKCFI 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3395 OF 2016

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D E C I S I O N

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1.  The 1st defendant (“D1”) is the remaining sole executor of the will dated 15 November 1996 of Wong Sui, deceased, (“Wong Sui”). D1 was the daughter of Wong Sui. The plaintiff (“P”) was the grandson of Wong Sui and is one of the beneficiaries of the said will. P seeks in the originating summons (“the OS”) an order that D1 do furnish a full and proper inventory and accounts of the estate of Wong Sui and that D1 be removed as executor of the said estate and replaced by professional accountants.

2.  The property known as Apartment D6 and car parking space at Craig Mount, 34 Stubbs Road (“the Craig Mount property”) is part of the residuary estate in the said will.  P is one of the residuary legatees entitling to an equal share of it together with the other seven beneficiaries who are all named as defendants in these proceedings.

3.  P used to live in the Craig Mount property with D1 until 2011.  One of the allegations P made in paragraph 19 of his supporting affirmation filed on 5 December 2016 and paragraphs 39 to 41 and 47 of his second affirmation filed on 5 May 2017, was that he had been induced by the 2nd defendant (“D2”), to move out of the Craig Mount property.

4.  P also made this allegation in an email he sent to D1, D2 and D7 on 27 April 2015 (P-725) (“the said email”).  D2 denied this allegation and filed a summons on 11 October 2017 to strike it out from the above mentioned paragraphs of P’s two affirmations.  This summons was resolved by a consent order made by Master Hui on 13 November 2017 (“the consent order”) by which P acceded to D2’s summons.  P then filed fresh supporting and second affirmations with the allegation of inducement by D2 to move out of the Craig Mount property removed.

5.  D2 had on 13 March 2017 already filed an affirmation to oppose P’s claim in the OS and answered his supporting affirmation including his allegation of inducement to move out of the Craig Mount property by D2.  D1 has done the same on 14 March 2017 and dealt with the allegation of inducement by D2 as well.

6.  D1 and D2 therefore issued summonses on 24 April 2018 for orders to file fresh affirmations in opposition with their answers to the allegation of inducement by D2 removed as the allegation has been removed from P’s affirmations pursuant to the consent order.

7.  D1 also issued a further summons on 24 April 2018 to seek leave to file a 4th affirmation to introduce evidence of an AGM of a company called Tai Yun Land Investment Company Limited, (“Tai Yun”).  The shares of this company used to be owned by the estate of Wong Shui.

8.  D1 filed a further summons on 21 May to seek leave to file her 5th affirmation to introduce further matters about Tai Yun and its wholly owned subsidiary, Harbour Wealth Holdings Limited and the sale of the Craig Mount property.

9.  All four summonses are contested.  

10.  D2, as represented by counsel Mr Raymond Tsui and Ms Lorraine Tsang, submitted that D2’s 1st affirmation should be replaced by a fresh affirmation with D2’s answers to P’s allegation of inducement by D2 removed.  This matter should have been dealt with as part of the consent order.  Unfortunately, it was not.  Hence, further costs are being incurred to pursue this.

11.  Since the allegation of inducement has been removed, there is every reason for the answer to the allegation to be removed as well.  However, D2’s summons was opposed to by P, even though the proposal of rectification was made by D2 prior to the taking out of this summons.

12.  D1 has likewise taken out her 1st summons for the same purpose as she had also in her 1st affirmation in opposition filed on 14 March 2017 replied to P’s allegation of inducement by D2.  Hence, D1 sought the same relief to file a fresh affirmation in opposition with the answer to the inducement allegation removed.  The justifications for this summons are the same as those for D2’s.

13.  P made the same grounds of opposition to these two summonses issued by D1 and D2.  The 1st ground is that these two summonses were issued late. 

14.  At the time when these two summonses were issued, namely on 24 April 2018, there was only a pending directions hearing which was fixed on 5 March 2018 to be heard on 4 June 2018.  It was to deal with D1’s failure to comply with a court order.  No leave had been given for the OS to be set down for hearing and nobody had suggested then that he or she was ready for the hearing of the OS.  This morning when I asked Ms Chung, counsel for P, on what prejudice had been incurred to P by reason of the lateness of the issuance of the two summonses, I was not given any concrete answer. 

15.  The 2nd ground of opposition is that the answer to the inducement is relevant because both D1 and D2 had in their affirmations of opposition exhibited the said email that contains the inducement allegation. 

16.  I do not think this is a proper ground.  The said email was produced by D1 and D2 for other purposes.  When they introduced the said email in their affirmations, they had not referred to P’s inducement allegation and the said email is part of a chain of emails that D1 and D2 had to make use of in their opposition of the OS.

17.  Since they, by producing the said email, are not relying on P’s allegation of inducement by D2, the production of the said email is not a justification for P to retain their answers to an allegation that P has now removed.

18.  Another ground of opposition by P is that there is no need to take out these two summonses because the judge can be asked to ignore the answer to the removed allegation of inducement.  This point is made too late as it is only uttered for the first time in Ms Chung’s written submissions.  Furthermore, if this is P’s correct stance to take, that means P accepts that the answer to the inducement allegation should be ignored by the judge.  This stance would therefore defeat P’s stance for retaining the answer on the ground of relevance.

19.  I, therefore, consider that the two summonses by D1 and D2 should be allowed. 

20.  I now deal with D1’s 2nd summons.  D1 intended to file her 4th affirmation to deal with an AGM of Tai Yun which took place on 12 December 2017.  The thrust of the affirmation is that despite P having been transferred the shares of Tai Yun (to which he was entitled under the said will), he still did not attend the AGM as a shareholder.  That surprised D1 because P appeared to be concerned about his interests in Tai Yun. 

21.  However, the estate used to be the owner of the shares of Tai Yun and no more.  Once its shares were transferred from the estate to the specific legatees under the said will, the estate ceased to be concerned with the affairs of Tai Yun. 

22.  Since D1 has already deposed in her first affirmation to the fact that the shares of Tai Yun had been transferred to the specific legatees and dividends declared by Tai Yun prior to the transfers had been paid to all the specific legatees, the allegation about Tai Yun’s shares has been dealt with.  Whatever happened in Tai Yun after the transfer of the shares are irrelevant insofar as the administration of the estate is concerned.  This draft 4th affirmation of D1 serves no other purpose but to throw mud against P for his failure to take part in the affairs of Tai Yun.

23.  I do not see any justification for the filing of this 4th affirmation and I dismiss D1’s 2nd summons issued on 24 April 2018. 

24.  I now come to D1’s 3rd summons which was issued on 21 May 2018 to introduce her 5th affirmation.  The draft 5th affirmation contains two matters.  The 1st matter is the fact that Tai Yun is considering the realisation of all its assets and properties and Harbour Wealth is also considering the same. 

25.  The next matter is about the conclusion of the sale of the Craig Mount property.  The 2nd matter is contained in paragraphs 8 to 14 of the draft 5th affirmation of D1.  P has already indicated that he has no objection to this part of the 5th affirmation to be filed, but P does object to the inclusion of the matters about Tai Yun and Harbour Wealth. 

26.  Whatever I have said in relation to D1’s 2nd summons to introduce her 4th affirmation apply with equal force to the 1st part of her 5th affirmation in relation to the affairs of Tai Yun and Harbour Wealth.  I therefore only grant leave for paragraphs 8 to 14 of the 5th affirmation of D1 to be filed and served.

27.  On the sale of the Craig Mount property, D1 has not said a word about the exact amount of the net proceeds or the whereabouts of the net proceeds and P is eager to know about the same.  I therefore order that leave be given to D1 to file a 4th affirmation containing paragraphs 8 to 14 of her draft 5th affirmation and the details about the sale of the Craig Mount property including the amount of net proceeds realised and the whereabouts of such proceeds.  This 4th affirmation be filed within 21 days from today.

28.  P and D2 be given leave to file their affirmations in reply to D1’s 4th affirmation within 28 days thereafter.

29.  On the costs of D1’s 1st summons and D2’s summons, I take the view that the dispute is really a storm in a teacup, but I cannot deprive them of their costs.  However, I do not think they should be entitled to indemnity costs because they should have dealt with this matter in the consent summons, and P really has no basis to oppose this.  This should have been dealt with by a jointly signed letter addressed to the judge hearing the OS to ignore those few words in the relevant affirmations.

30.  I, therefore, order P to pay costs of the 1st summons of D1 to D1 and D2’s summons to D2.

31.  Regarding D1’s 2nd summons, I think it is an abuse of process because I can see no purpose but mud throwing by saying that P was not attending to what used to be something that he was very concerned and cared about.  This has nothing to do with the administration of the estate and I order D1 to pay P indemnity costs on this summons.

32.  Regarding D1’s 3rd summons, part of it is consented to.  So I do not think P should pay costs for that part.  The other part was opposed successfully and has been dismissed. So, I would order half of the costs of D1’s 3rd summons be in the cause and the remaining half be paid by D1 to P on party and party basis.  I do not think that is an abuse, although irrelevant.  I, therefore, do not regard the indemnity scale as appropriate.