NG KWOK PIU PHILIP AND OTHERS v. TO PUI KUI AND OTHERS

CACV 21/2016, CACV 24-29/2016
CAMP 6/2019
(Heard Together)

[2020] HKCA 724

CACV21/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 21 OF 2016

(ON APPEAL FROM HCA NO 51 OF 2007, HCA NO 1040 OF 2009 AND HCA NO 1041 OF 2009)

__________________________________

HCA 51/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 51 OF 2007

________________________

______________________________________

AND

HCA 1040/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1040 OF 2009

________________________

________________________

AND

HCA 1041/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1041 OF 2009

________________________

________________________

(HEARD TOGETHER)

AND

CACV 24 & 25/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2016 AND NO 25 OF 2016

(ON APPEAL FROM HCA NO 51 OF 2007)

________________________

________________________

AND

CACV 26 & 28/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 26 OF 2016 AND NO 28 OF 2016

(ON APPEAL FROM HCA NO 1040 OF 2009)

________________________

________________________

AND

CACV 27 & 29/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 27 OF 2016 AND NO 29 OF 2016

(ON APPEAL FROM HCA NO 1041 OF 2009)

________________________

________________________

AND

CAMP 6/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 6 OF 2019

(ON AN INTENDED APPEAL FROM HCA NO 1041 OF 2009)

________________________

________________________

(HEARD TOGETHER)

____________________

JUDGMENT
in CACV21/2016 and CACV24-29/2016 and
REASO N S   F O R   J U D G M E N T
in CAMP 6/2019

____________________

Hon Poon CJHC:

1.  I agree with the reasons for judgment in CAMP 6/2019, and the judgment and costs order in CACV 21/2016 and CACV 24/2016 to CACV 29/2016 given by Yuen JA.

Hon Yuen JA:

2.  There were before this court 7 appeals and 1 application for extension of time to appeal¹ against the Judgment of M Chan J (“the judge”) given on 6 January 2016 (“the Judgment”) in 3 actions after a 26 - day trial which took place between January and October 2015.

The parties

3.  The parties to the 3 actions (HCA51/2007, HCA1040/2009 and HCA1041/2009) and the appeals (CACV21/2016 and CACV24 - 29/2016) and application for extension of time to appeal (CAMP6/2019) can be seen in a chart appended to this Judgment. 

4.1  The protagonists are members of the family of the late Ng Po Sum (“the Father”) and some of the companies he set up during his lifetime. 

Family members

4.2  After the Father’s death in 2002, the family now comprises:

-        To Pui Kui (“the Mother”), represented on appeal by Mr Jerome Liu², and who was included in a group called “Mother Group” (“MG”) in the Judgment³,

and the children (in order of age):

-        Philip Ng Kwok Piu (“Philip”), represented on appeal by Mr William Wong SC⁴, and who was included in a group called “the Philip Group” (“PG”) in the Judgment⁵,

-        Eleanor Ng Yiu Chi (“Eleanor”), represented on appeal by Mr Edward Chan SC⁶, and who had not been included in either MG or PG,

-        Angela Ng Kay Chee (“Angela”), who had been included in MG at trial and in the Judgment, but who is now separately represented by Mr Vincent Lung⁷;

-        Olympia Ng Woon Chi (“Olympia”), who is not a party to any of the actions but who was included in PG⁸,

-        Tony Ng Kwok Tung (“Tony”), who is also not a party to any of the actions but who was also included in PG⁹,

-        Jeremy Ng Kwok Ching (“Jeremy”), who is also not a party to any of the actions, and who had not been included in either MG or PG,

-        Stephanie Ng Oi Che (“Stephanie”), represented on appeal by the same legal team as Philip, and who was included in PG,

-        Andrew Ng Kwok Tai (“Andrew”), represented on appeal by the same legal team as the Mother, but who had not been included in either MG or PG.

Companies

5.1  HEL (HCA51/2007 –> CACV21/2016, CACV24/2016 & CACV25/2016)

The company the subject matter of HCA51/2007 (although it was not a party) is Hultucktong Enterprises Ltd (“HEL”).  The following appeals were lodged against the Judgment:

Appeal No.                Appellants

CACV21/2016          Eleanor

CACV24/2016          Andrew

CACV25/2016          The Mother and a company called Ng Sheung Ming Association Ltd (“NSMAL”)¹⁰, which was included in MG 

5.2  HCIL (HCA1040/2009 –> CACV21/2016, CACV26/2016 and CACV28/2016)

The company the subject matter of HCA1040/2009 is Hultucktong Commercial & Industrial Co Ltd (“HCIL”), which is represented by the same legal team as Philip and Stephanie.  The following appeals were lodged against the Judgment:

Appeal No.                Appellants

CACV21/2016          Eleanor

CACV26/2016          The Mother

CACV28/2016          Andrew 

5.3  HCL (HCA1041/2009 –> CACV21/2016, CACV27/2016, CACV29/2016 & CAMP6/2019)

The company the subject matter of HCA1041/2009 is Hultucktong Co Ltd (“HCL”), which is represented by the same legal team as Philip and Stephanie.  The following appeals were lodged against the Judgment:

Appeal No.                Appellants

CACV21/2016          Eleanor

CACV27/2016          Angela

CACV29/2016          Andrew

6.1  In CAMP6/2019, the Mother applied for an extension of time to appeal HCA1041. After hearing submissions at the commencement of these appeals, it was dismissed for the following reasons. 

Reasons for Judgment in CAMP6/2019

6.2  The Mother’s application came about in this way. 

6.3  The Mother and Angela were originally the appellants in CACV27/2016, both represented by Vremeli Chan & Co (“VC”).  However, since 13 July 2016, she and Angela became separately represented.  Angela continued to be represented by VC, and the Mother was represented by Khoo & Co (“KC”). 

6.4  On 7 December 2018, VC served a summons on behalf of Angela for leave to file an Amended Notice of Appeal in CACV27/2016.  It was served on the Mother’s solicitors KC.  In the draft Amended Notice of Appeal, the Mother’s name was deleted.  The rest of the amendments were essentially deletions.  The court did not receive any objection from the Mother to Angela’s summons.   

6.5  On 12 December 2018, the court gave leave to Angela to file the Amended Notice of Appeal in CACV27/2016.   

6.6  Even though they had been served with Angela’s summons, KC said they were not alert to the deletion of the Mother from CACV27/2016, and on 12 December 2018, they filed a summons on behalf of the Mother to amend the Notice of Appeal in CACV27/2016 (from which her name had already been deleted). 

6.7  On 21 December 2018, a single judge of this court gave directions for the Mother’s summons (amongst others).  It was directed that written submissions be exchanged on 3 January 2019, with the following specifically pointed out:

“There may be procedural difficulties with CACV27/2016. In that appeal, the original appellants were [the Mother], NSMAL and [Angela] who were all represented by [VC]. On 7 December 2018, a summons for leave to amend the notice of appeal was issued deleting the name of [the Mother] and NSMAL. An order in terms was granted. However it would now appear that [the Mother] has not withdrawn her appeal because on 12 December 2018, a summons for leave to amend the notice of appeal was issued by [KC] acting for her. This has resulted in two notices of appeal, with different grounds of appeal, in the same appeal. The court expects submissions on this situation”.

6.8  Despite this specific direction, no written submissions were provided on the Mother’s behalf by 3 January 2019, or indeed even at the start of the appeal hearing on 9 January 2019. 

7.1  The first hour of that hearing had to be spent dealing with the Mother’s summons for leave to amend CACV27/2016 (from which her name had been deleted).  After hearing submissions, the court ordered (without objection by KC) that the costs of that hour be paid to all other parties by KC on an indemnity basis.

7.2  The next day, CAMP6/2019 was issued by the Mother with an affirmation in support from a solicitor from KC.  It was said that KC had not been alerted to the deletion of the Mother from CACV27/2016 until the court drew their attention to it by the 21 December 2018 letter referred to above. 

7.3  However, no explanation was given in that affirmation as to why (despite the court’s letter) the court’s direction for submissions on the specific point was simply ignored, and why nothing was done in the period between 21 December 2018 and 9 January 2019.

7.4  Clearly, KC should have been alerted to the Mother’s deletion from CACV27/2016 as early as 7 December 2018 (more than an month before the appeal hearing) when the summons was served on them.  And even when the court alerted them to the point on 21 December 2018, they still failed to put their house in order, ignoring the court’s directions for submissions on the point.

7.5  Having taken into account the usual principles for extension of time, but particularly in this case, the complete disregard of the court’s directions and the lack of a satisfactory explanation for the delay, the court considered it inappropriate to exercise its discretion in favour of the Mother.  Accordingly, CAMP6/2019 was dismissed, with costs to follow the event on a party and party basis.

Applications to amend Notices of Appeal   

8.1  Returning to the 7 appeals, there were a number of applications for leave to amend the Notices of Appeal at the start of the appeal hearing.

8.2  Regarding Eleanor’s appeal in CACV21/2016, having heard Mr Chan’s submissions and Mr Wong’s submissions in opposition, the court took the view that the addition of the new grounds in the draft Amended Notice of Appeal would not disrupt the preparation or progress of the appeal, except for the latter part of ground (12) which read as follows:

“[A]nd the learned judge should have considered the probabilities that there was a genuine arrangement for the restructuring arrangement but because of the omission of getting her signatures on these documents by negligence or accidents, someone had decided to forge her signatures on these documents so as to perfect the restructuring exercise”. (Emphasis added).

8.3  This court decided that the suggestion of negligence or accident should not be allowed as it raised a new issue which had not been pleaded or argued at trial, it is clearly fact-sensitive, and it could not be said that “there was no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at trial”¹¹. Accordingly, leave was given to amend except for the above passage, with costs to be paid by Eleanor to the respondents on a party and party basis.

9.1  Applications to amend were also made by the following:

Appeal No.                Appellants

24/2016                     Andrew

25/2016                     The Mother and NSMAL

26/2016                     The Mother

28/2019                     Andrew

29/2016                     Andrew

9.2  Having heard respective counsel’s submissions, the court decided that the addition of the new grounds in the draft Amended Notices of Appeal would not disrupt the preparation or progress of the appeal, except for the passage at the end of Ground (8) in the draft Amended Notices of Appeal in each of CACV24/2016, 28/2016 and 29/2016 which contained the words:

“and the requirement in clause 4 of Table A was not satisfied”.

9.3  The suggestion of non-compliance with a clause in Table A was not allowed as it raised a new issue which had not been pleaded or argued at trial, it is fact-sensitive, and failed the “state of the evidence” bar discussed above. Accordingly, leave was given to amend the Notices of Appeal in the above appeals except for the above passage, with costs to be paid by the respective appellants to the respondents on a party and party basis.

Background

10.1  As for the substance of the appeals, it is necessary to set out some relevant background first.

10.2  The Father had once been a qualified accountant, but at the material times operated a firm providing tax representative services.  In 1997, he was 81 years old but remained actively working.  He went to Canada to undergo cancer surgery on 8 May of that year.  He recovered, returned to Hong Kong two months later, and continued to work until shortly before his death in March 2002.

10.3  The children had all received university education.  In 1997, they ranged in age between 57 and 42.  Philip was an immigration consultant and Eleanor was a university librarian in Hong Kong.  Angela was a professional accountant in Canada, where Olympia also lived.  Tony and Jeremy were professional accountants in Hong Kong.  Stephanie ran a company in Hong Kong providing company secretarial services.  Andrew worked at the Father’s firm. 

11.1  The Father had set up a number of companies during his lifetime to hold properties, both residential and commercial.  Some of the properties were occupied by members of the family living in Hong Kong, and some were leased to third parties.

11.2  Apart from NSMAL (incorporated in 1982, having previously been an unincorporated association) which was a company limited by guarantee and which did not have shareholders, the rest of the companies set up by the Father were limited by shares, with shares registered in the names of some of the members of the family.  One of the issues at trial, which will be discussed later¹², was whether some of the registered shareholders had signed declarations of trust (“D/T”) in favour of siblings who were not registered shareholders.

12.1  It was common ground at trial that during his lifetime, and despite the fact that the children were all adults and well-educated, the Father made all the decisions for the companies.  In the Judgment, the judge said:

“[5] Despite their division, the Siblings¹³ all agree that Father was a traditional family man, frugal, hard-working, headstrong and, whilst he was alive, made all the decisions for the family.

[7] There is no dispute amongst the Siblings that, during the time when Father was alive, it was Father who made all decisions relating to the Family Companies¹⁴, how they were run, and how the landed properties were held.

[54] One undisputed aspect of the case is that during Father’s life, it was Father who had controlled the Family Companies, made the decisions concerning the Family Companies and the family assets including the landed properties ...”.

12.2  As for those appellants who gave evidence at trial¹⁵, Eleanor said¹⁶:

“Father kept all the records in his office. He never called any meeting and did not give us the share certificates in any of the family companies. He only occasionally asked me to sign documents”. (Emphasis added).

And giving evidence at the trial, she agreed that the Father “was very much in control of the Ng family companies”¹⁷.

12.3  As for Angela, she had said in her witness statement¹⁸:

“He [the Father] made all the decisions”.

On appeal, it is accepted on her behalf that “it is common ground (and accepted by the judge) that Father made all decisions concerning the family (including the family companies)”¹⁹. 

12.4  And in Andrew’s witness statement, he said²⁰:

“When Father returned to Hong Kong in late July 1997 after recovering from the surgery, nothing changed. Father was still the owner of everything; he could sell properties at will, use all the funds and income at his discretion ...”. (Emphasis added).

13.  The companies the subject matter of the actions were HCL (incorporated in 1965), HEL and HCIL (both incorporated in 1976).  The primary issue in the appeals was whether in a restructuring exercise in 1997, the shares in these companies had been validly divested from family members in favour of a BVI company called Confederated Assets Group Ltd (“CAGL”), in which family members had been allotted shares.

14.1  Before considering the events of 1997, the following documents are notable:

(1)     on various dates in 1985, the following documents were stamped by the Stamp Duty Office:

Re: Shares in HEL

(a)     a D/T signed by Stephanie in respect of some shares held in trust for Olympia²¹;

(b)     a D/T apparently²² signed by Andrew in respect of some shares held in trust for Tony²³;

(c)     a D/T apparently signed by Andrew in respect of some shares held in trust for Jeremy²⁴;

(d)     a D/T apparently signed by Eleanor in respect of some shares held in trust for Angela²⁵.

Re: Shares in HCIL

(a)     a D/T signed by Stephanie in respect of some shares held in trust for Olympia²⁶;

(b)     a D/T apparently signed by Eleanor in respect of some shares held in trust for Angela²⁷;

(c)     a D/T apparently signed by Andrew in respect of some shares held in trust for Jeremy²⁸.

(2)     In 1988, the following documents were stamped by the Stamp Duty Office:

Re: Shares in HCIL

(a)     a D/T signed by Stephanie in respect of some shares held in trust for Tony²⁹.

Re: Shares in HCL

(a)     a D/T signed by Stephanie in respect of some shares held in trust for Jeremy³⁰;

(b)     a D/T signed by Stephanie in respect of some shares held in trust for Tony³¹.

14.2  At trial, Andrew “sought to challenge the authenticity of the contemporaneous documents filed at the Companies Registry and with the Stamp Office”, but the judge rejected these challenges as “incredulous, particularly in view of the correspondence from the Stamp Office”³².  Further, shareholdings effected by D/Ts had been recorded in the Father’s handwritten notes³³.  On appeal, Andrew has not continued to suggest that the Stamp Office chops were not authentic, or that the documents bearing Companies Registry chops had not been in fact filed on the dates stated thereon.

14.3  In other words, some 10-12 years before the events in 1997, when there was no hostility within the family, there were already in existence the 10 D/Ts listed above which at trial Andrew and Eleanor denied they had signed.

14.4  The effect of the D/Ts was that all 8 children had shares in the above companies, although not in equal shares.

15.  The restructuring exercise in 1997 comprised of stages (A) - (D). 

(A)     Allotment of CAGL shares to family members

16.1  On 27 February 1997, CAGL³⁴ was incorporated in the BVI.  The first directors were the Father, the Mother, Philip, Stephanie and Andrew³⁵.

16.2  Applications for allotment of shares in CAGL were made by the Father³⁶, the Mother³⁷, Philip³⁸, Eleanor³⁹, Olympia⁴⁰, Stephanie⁴¹ and Andrew⁴².  The applications were approved by the directors by a resolution passed on 3 March 1997⁴³ (“Allotment to Family”). 

16.3  Of the shares allotted, Stephanie signed a D/T for some shares held on trust for Angela⁴⁴, and also a D/T for some shares held on trust for Jeremy⁴⁵.  Andrew apparently signed a D/T for some shares held on trust for Tony⁴⁶. The effect of these D/Ts was that the Father, the Mother, and all 8 children had shares in CAGL, although not in equal shares.

HCA523 - allotment of CAGL shares to Father and his transfer of shares

17.1  In this connection, in HCA523/2008 (“HCA523”), the Mother as administratrix of the Father’s estate issued proceedings with the 8 children and CAGL as defendants.  The action concerned (a) the quantity of CAGL shares allotted to the Father and (b) the validity of his transfer of those shares to the children⁴⁷.   

17.2  In that action, it was alleged by the Mother (supported by some of the children⁴⁸) that the Father’s signatures on (among other documents⁴⁹):

(a)     CAGL’s board resolution⁵⁰ dated 3 March 1997 allotting 20 shares to the Father, and

(b)    the Instruments of Transfer and Sold Notes of those shares dated 8 May 1997,

were forged. 

17.3  Seagroatt Dep J held⁵¹ at first instance that he was unable to conclude that (a) CAGL’s board resolution allotting 20 shares to the Father was forged.  He came to a different view regarding (b) the Instruments of Transfer and the Sold Notes. 

17.4  However, in CACV281/2012, CACV1/2013 and HCMP2466/2012 (“CACV281”), this Court⁵² reversed the finding on (b)⁵³. On 1 April 2016, the Court of Final Appeal refused leave to appeal against the Court of Appeal’s judgment⁵⁴.

17.5  The relevance in the present appeals of the findings in HCA523 will be discussed later⁵⁵.

18.  The stage (A) Allotment to Family in March 1997 was followed in May 1997 by stages:

(B)     the allotment of 100 ordinary shares in each of HEL⁵⁶, HCL⁵⁷ and HCIL⁵⁸ (among other companies not the subject matter of these appeals) to CAGL⁵⁹ (“Allotment to CAGL”);

(C)     the conversion of issued shares held by the registered shareholders of HEL, HCL and HCIL into 5% deferred shares (“Conversion of family’s shares”); and

(D)    the transfer by the registered shareholders of HEL, HCL and HCIL of their (5% deferred) shares to CAGL (“Transfer of family’s shares”).

19.  The result of the restructuring exercise, if validly effected, was to divest the family members of all their shares in the Hong Kong companies HEL, HCL and HCIL, but to vest in them (the family members) shares in the BVI company CAGL, which became the holding company of the Hong Kong companies.  The purpose of the Conversion of family’s shares was obviously to reduce the value of the shares held by the family members, with a view to reducing stamp duty on the Transfer of family’s shares to the new holding company.

(B) and (C)

20.1  Various corporate documents (minutes of directors’ meetings, notices to shareholders of meetings, and minutes of EGMs with shareholders attendance lists) have been produced⁶⁰ for each of HEL, HCL and HCIL for the restructuring exercise. 

20.2  In respect of stages (B) and (C), the language in which the documents was drafted was as if physical meetings for those purposes were actually held by the directors and by the shareholders respectively at the times and places indicated.  Indeed, it was the PG’s original pleaded case that physical meetings had in fact taken place. 

20.3  However, in HCA523⁶¹, witness statements were filed by members of PG in 2012 that there were in fact no physical meetings, with Stephanie stating⁶²:

“all the minutes of directors and EGM, consent to short notices in the restructuring in May 1997, were just like all other minutes in the Ng family companies, circulated for signatures by directors and shareholders. We did not actually sit down together to have a meeting face-to-face”.

20.4  In light of the above, the judge gave leave on 29 December 2014 to the PG to amend their pleadings such that the restructuring was

“effected through a number of documents (‘the Restructuring documents’) which were circulated amongst and signed by the relevant Ng family members”⁶³.

20.5  More importantly, it was clear to all parties as shown in closing submissions that (as formulated by Mr Ronald Tang, then counsel for Eleanor):

“the core issue of this case is:

Whether the shareholders of HEL, HCL and HCIL unanimously agreed/consented to the Restructuring?  Or whether the alleged Restructuring is valid?”

21.1  Pausing here, it is clear from the reference to the requirement of unanimous agreement that the “core issue” was whether the Duomatic principle⁶⁴ (unanimous consent at common law) could be applied, because a written resolution can be passed if only the required majority is reached⁶⁵.  The learned editors of Gower explained the difference between (i) a decision made by shareholders under the Duomatic principle and (ii) a written resolution as follows:

“... [the common law unanimous consent rule’s] main purpose is to allow shareholders to decide informally on matters within their competence.

... The written resolution procedure allows shareholders to adopt resolutions outside meetings; the unanimous consent rule permits wholly informal methods of giving shareholder consent, but requires that consent (being of all those entitled to vote) be unanimous, regardless of the level of support that would have been required in a formal meeting or if the written resolution procedure had been followed. The accepted explanation for this is that it would be inequitable to allow the company, or its members, to assert that they are not bound by a decision or an act which all those competent to effect have decided should be effected”. (Emphasis added).

21.2  The Duomatic principle was summarised by Neuberger J (as he then was) in EIC Services Ltd v Phipps⁶⁶which will be discussed below in the context of the present case.  

22.1  Coming back to the facts of this case, it is notable that the following things were done contemporaneously:

-        for stages (B) and (C), on 13 May 1997, there were registered with the Companies Registry in respect of HEL⁶⁷, HCL⁶⁸ and HCIL⁶⁹ the respective notices of Allotment to CAGL, and notices of the Conversion of family’s shares;

-        for stage (D) Transfer of family’s shares, instruments of transfer by family members to CAGL, and bought and sold notes, were all stamped within the month of May 1997 in respect of HEL⁷⁰ and HCL⁷¹; in respect of HCIL⁷², they were stamped within the month of May 1997 and on 2 June 1997.

22.2  In other words, even though Eleanor, Angela and Andrew have denied signing various documents, the documents were clearly in existence at the time of the restructuring exercise back in May 1997.

22.3  It is also relevant to note that the annual returns of HEL, HCL and HCIL thereafter reflected the Allotment to CAGL, the Conversion of family’s shares and the Transfer of family’s shares.  Some of these annual returns were signed by the Father⁷³ as director of the returning company.  At trial, Eleanor did not raise a positive case of forgery of the Father’s signatures on these “post-May 1997” documents⁷⁴, accepting that “on the face of them, Father did sign on those documents”.  The MG (including the Mother, Angela and Andrew) confined themselves to disputing the authenticity of the Father’s signatures on the restructuring documents⁷⁵, and did not address the subsequent annual returns.

22.4  Further, a control specimen used by the MG’s expert⁷⁶ was the Father’s signature on a resolution of HEL dated 27 April 1999⁷⁷.  It is notable that this document, which the Father signed as an authorised signatory of CAGL, stated expressly that that company together with WA were “all the shareholders of the Company [HEL]”.    

22.5  In other words, after May 1997, the Father as director of HEL, HCL and HCIL and as authorised signatory of CAGL had conducted these companies on the basis that there had been a valid restructuring exercise. 

23.1  In 2005, 3 years after the Father died, disputes arose which led eventually to a number of proceedings.

23.2  As mentioned earlier, in HCA523 and the appeal therefrom, the court has dismissed the Mother’s case that the Father’s signatures on (among other documents⁷⁸):

(a)   CAGL’s board resolution dated 3 March 1997 allotting 20 shares to the Father, and

(b)    the Instruments of Transfer and Sold Notes of those shares dated 8 May 1997,

were forged. 

23.3  In the 3 actions the subject matter of these appeals, the Mother, Eleanor, Angela and Andrew alleged forgeries of their respective signatures on the restructuring documents.  The Mother did not give evidence, but Eleanor, Angela and Andrew did.  In particular, Eleanor alleged that the signatures appearing as “Eleanor Ng” in the restructuring documents were forged because since 1965, she had only signed “Ng Yiu Chi” on all documents relating to the Ng family companies (“the Signature Pattern”), except for one occasion in 1976 when she had mistakenly signed “Eleanor Ng Yiu Chi” and was reprimanded by the Father for doing so.

M Chan J’s Judgment

24.  After a trial which took a total of 26 days spanning 10 months, the judge gave judgment for the PG in HCA51⁷⁹ and dismissed the claims made by the MG⁸⁰, Eleanor and Andrew in HCA1040⁸¹ and 1041⁸².  The judge held that Eleanor, Angela and Andrew had failed to satisfy the court that their respective signatures were forged, and the judge held that the restructuring exercise was valid as the signed documents signified unanimous consent under the Duomatic principle. 

25.  In brief, the judge held (among other things):

-        the MG, Eleanor and Andrew had the persuasive burden of proving forgery, but that whether they bore only the evidential burden of raising sufficiently cogent evidence of forgery, or the legal burden to establish such forgery, there was no substantial practical difference in this case [28-29];

-        a person who has signed a document is bound by his signature, unless he establishes a vitiating factor such as mistake, misrepresentation or mental incapacity, and it is not enough for him to prove that he had signed it without knowing its contents [30];

-        inferences of fraud or serious misconduct have to be plainly established [31];

-        although the Mother had claimed that her signatures on the restructuring documents were forged, she had not testified and the key question was whether the signatures of Eleanor, Angela and Andrew which appeared in the restructuring documents were genuine, or forged [37];

-        Angela was not an impressive witness as shown by some parts of her evidence which were not credible [39];

-        Andrew’s credibility was “greatly affected” by his continuous change of case and reflected his readiness to disclaim any document which might not assist his case on the restructuring [51]; e.g. he had signed audited financial statements of HEL for many years which showed that CAGL was its ultimate holding company [§52], and inconsistencies in his evidence made him an unreliable witness [66];

-        as for Eleanor, although she struck the judge as a “forthright and honest witness” [45], her assertion of a rigid Signature Pattern was not borne out by a number of documents in 1976 and 1985 relating to Ng family companies where she signed “Eleanor Ng” and not “Ng Yiu Chi” [47];

-        many documents had been stamped and filed before the Father’s death, and if any of them had been forged, it would have come to the Father’s attention as he was “fully hands-on” in relation to the operation and use of the companies until his death in 2002 [55-56]; on the contrary, the Father had signed documents reflecting the validity of the restructuring documents [56-57];

-        the Father controlled the family companies during his lifetime, and from the totality of the evidence, it was unlikely that he would have consulted any of the children in detail in relation to the restructuring; due to their lack of involvement, it was not surprising that Eleanor and Angela would not have been aware of CAGL [54]; the children trusted the Father with regard to his management of the family assets [64] and it was “highly likely that the restructuring documents were “only circulated amongst the family members in around May 1997, for their signature on the documents” [67];

-        as the corporate documents from the 1960's until 2005 purported to record that physical meetings had been held when it was common ground that they had not, “this can only mean that the family had accepted the practice of documents being signed in lieu of meetings, and had indeed acted on such practice and documents as signed ... ” [72]; the judge was satisfied that Eleanor, Angela and Andrew’s signatures on attendance notes attached to minutes meant that they agreed to the contents of the minutes, and that:

“signatures of all the shareholders on the Attendance Lists signify and express their consent to, and their knowledge of, the contents of the minutes of which the Attendance Lists form part. By their signature and their conduct, [the judge] was satisfied that all the shareholders of the Family Companies, including Eleanor, Angela and Andrew, have indicated their consent to the matters recorded in the Restructuring Documents which constitute and give effect to the Restructuring (In re Duomatic Ltd ...” (Emphasis added).

Grounds of Appeal

26.  Although some appellants have advanced more grounds of appeal than others, and their formulations may be slightly different, the following broad grounds of appeal encompass all the main grounds advanced by some or all the appellants in the 7 appeals:    

(1)     the judge wrongly thought that Father’s signatures on the restructuring documents had been held to be genuine in HCA523⁸³, when that case dealt only with the allotment of CAGL shares to him and his transfer of those shares;

(2)     the persuasive burden should not have been on the appellants;

(3)     the judge erred in finding that the signatures of the appellants on the restructuring documents were genuine;

(4)     the judge erred in finding Eleanor had signed the subject documents without reading the contents, as that was not pleaded by the PG and was not suggested to the parties during trial;

(5)     the signatures on the attendance lists were insufficient to prove consent;

(6)     as the judge had found that Eleanor might not have read the contents of the documents she signed for the restructuring, she could not have approved them, and so the Duomatic principle could not apply.

Discussion

(1)  The Father’s signatures on the restructuring documents

27.1  This ground of appeal focuses on [37] of the Judgment where the judge said “Father’s signatures on the Restructuring Documents have already been held in HCA523 to be genuine”.  In [57], the judge also said:

“As Ms Cheng, Leading Counsel for the Philip Group, repeatedly pointed out, it has been conclusively determined in HCA523 (in which handwriting expert evidence had been adduced) that Father had signed the relevant Restructuring Documents, and the Mother group, Eleanor and Andrew can no longer claim that the Restructuring Documents were signed by Father without full knowledge of their contents”.

27.2  It was argued on behalf of the Mother and Andrew⁸⁴ that this was wrong and contrary to [43] and [50] of the HCA523 Judgment, which (it was argued) had not been disturbed by the Court of Appeal in CACV281. 

27.3  It was argued on behalf of Eleanor⁸⁵ that neither the trial judge in HCA523 nor the Court of Appeal in CACV281 made any finding on the Father’s signatures on the Restructuring Documents because it “was not an issue which needed to be decided in HCA523”.  

28.  First, it would be noted that in the closing submissions before the judge, the then counsel for Eleanor had acknowledged that:

-        “in gist, both experts inclined that the signatures of the Restructuring Documents were signed by the Father (on a balance of probabilities)”⁸⁶ and

-        “Father’s signature is not the issue in these proceedings”⁸⁷.

29.1  In any event, the arguments on behalf of the Mother and Andrew and Eleanor ignore the fact that the handwriting experts (Mr Leung for the MG and Mr Browne for the PG) had provided one report⁸⁸ for use in all 5 actions, including HCA523 and the 3 actions the subject matter of these appeals.  What the reports covered were the Father’s “questioned signatures” on a number of documents, including the restructuring documents⁸⁹. 

29.2  In their Joint Statement, the experts “generally agree that, in spite of the differences of terminology and levels of certainty, that Mr Ng Po Sum wrote the bulk of the questioned signatures, as listed in our respective reports”. (Emphasis added).  Their only point of difference related to one and a half signatures in only one questioned document⁹⁰ which is immaterial to the present appeals. 

29.3  In [43] of the HCA523 Judgment, Seagroatt J considered the expert evidence saying:

“Overall the evidence [viz the handwriting expert evidence] in relation to the [questioned] signatures of the father is inconclusive. I could not find positively one way or the other. The reservations shared by both experts reflect my own but I have had the advantage over them of considering the substantial extraneous evidence”⁹¹.

However, he then went on to make his own finding that he was “not satisfied that the father actually signed them, or if he did sign them, that he actually knew what they purported to be”⁹².

29.4  In CACV281, the Court of Appeal held that was unjustified.  Discussing [43] above, it held that even though the judge was entitled to take the view that, given the limitations arising from examination of copies instead of originals, the expert evidence was inconclusive⁹³:

“this is not a case where the expert evidence was of no value at all. Both experts put forward their opinions and Mr Leung gave some reasons for his opinion. The judge did not spell out what substantial extraneous evidence he had in mind at para.43. However, insofar as the judge’s reference to the availability of a forger’s skill is concerned, we do not think this is a matter which should be in the balance for the reasons we have already given earlier. As regards other extraneous evidence, they must be weighed against the evidence pointing against forgery, including the expert evidence”. (Emphasis added).

29.5  Having considered the contents of the expert reports⁹⁴, the Court of Appeal found the expert evidence on the questioned signatures (which included those on the restructuring documents) pointed against forgery, and there was insufficient compelling evidence to overcome the inherent improbability and other evidence pointing against forgery⁹⁵. 

30.  Coming back to our case, that was obviously what the judge had in mind when she referred to the Father’s signatures on the Restructuring Documents in the context of HCA523.  It is not submitted that at the trial of these 3 actions the subject matter of appeal, there was any new evidence which challenged the conclusion of the Court of Appeal in CACV281.

31.  Further, as mentioned earlier, a control specimen used by the MG’s expert⁹⁶ was the Father’s signature on a resolution of HEL dated 27 April 1999⁹⁷.  In this document, it was stated expressly that CAGL together with WA were “all the shareholders of the Company [HEL]”.  That is an acknowledgment by the Father that he had signed the relevant restructuring documents, there being no evidence of any other corporate documents that brought about that shareholding position. 

32.  Further, if the restructuring had not taken place, there would have been no point for the Father to transfer the CAGL shares allotted to him to his children, as it has not been suggested that CAGL had any assets other than shares in the Ng family companies including HEL, HCL and HCIL.

33.  Accordingly, there is no merit in the 1^st ground of appeal.

(2)  The burden

34.  Some of the appellants also submitted that the judge erred in finding that they bore the persuasive burden of proving the forgery of the restructuring documents and that the restructuring did not take place, for it was the PG which relied on the restructuring to gain control of HEL, HCL and HCIL.      

35.  This submission is immaterial, because the judge made it clear that whether the MG bore the legal burden or just the evidential burden, it was not likely that there would be a substantial practical difference in this case [29], because forgery is serious misconduct, and compelling evidence is required for such an allegation.  As the Court of Appeal said in CACV281⁹⁸:

“Since it was the Plaintiff who alleged that the official resolution was a forged document, she bore the burden of proving that the signatures of the father were not genuine. The judgments of the Court of Final Appeal in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 and Ming Shiu Chung v Ming Shiu Sun (2006) 9 HKCFAR 334 clearly stated that inferences of fraud or forgery were not to be reached by conjecture. There must be a proper foundation of primary facts to provide a reasonable basis for a definite conclusion of such serious misconduct to be inferred”.

36.  Accordingly, there is nothing in the 2^nd ground of appeal either.

(3)  Whether appellants’ signatures on restructuring documents genuine

37.  It was argued on behalf of the Mother and Andrew⁹⁹ that the judge’s rejection of the appellants’ case that their signatures were forged was in error because:

(a)     the judge had relied on some “flawed statements” to find that Eleanor would sign documents when the Father had told her to do so;

(b)     the judge had relied on those “flawed statements” to form the basis that the restructuring was intended by the Father;

(c)     the judge failed to give sufficient weight to certain evidence;

(d)     the judge had made a “conjecture” which was not the case put forward in any pleadings or witness statements.

38.1  As for the argument at (c), it is well-established that the weight to be given to primary facts is a matter for the trial judge, and an appellate court would not lightly interfere with the weighing exercise unless it is shown that the judge is “plainly wrong”¹⁰⁰.

38.2  The arguments as to matters which had not been pleaded or put will be discussed in Ground (4) below. 

38.3  As for the suggested “flawed statements” in (a), it is not as if the judge had made such serious errors as to vitiate the findings of fact in the Judgment. There may be minor inaccuracies, such as whether it had been disputed that Eleanor would do as she was told, including signing documents presented to her by the Father with questions seldom asked, if ever¹⁰¹.  In this respect, Eleanor had said that hypothetically, if she saw a document that had a date, time and place that were false, she would refuse to sign it¹⁰².  But there was no evidence that that had ever occurred. And even though Eleanor had referred to the subject companies as “Father’s companies” just to contrast them from the companies owned by her husband and herself, the fact remained that she acknowledged throughout that the Father controlled the Ng family companies.

38.4  As Lord Hoffman held in Biogen Inc v Medeva Ltd¹⁰³:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation”.

38.5  As for the argument set out at (b) above, the evidence clearly demonstrated that the restructuring was intended by the Fatherbecause he controlled the companies, and for some 5 years after the restructuring exercise, the Father operated the companies on the basis that the restructuring exercise was validly effected. 

39.  There is no merit in the 3^rd ground of appeal.

(4)  Did PG need to plead that Eleanor signed documents without reading the contents?

40.  Some of the appellants argued that the judge erred in holding that Eleanor had signed the subject documents without considering their contents and had forgotten that she had signed them, as this was not the PG’s pleaded case, and it had not been put to her in cross-examination.

41.1  This argument must be examined in the context of Eleanor’s case as a whole.  Eleanor accepted that the relevant signatures “closely resemble” hers¹⁰⁴, but alleged that her signatures were forged.  The evidence she proffered in support of that case was set out by the judge in [45]:

“The gist of her evidence, when asked why she could conclude that the relevant [documents] were not in fact signed by her, is firstly, the fact that ‘Eleanor Ng’ was signed on the documents of HEL, HCL and HCIL which is against her Signature Pattern¹⁰⁵, and secondly, the content of these documents, as she would not have signed them when she knew nothing about CAGL to whom her shares were purportedly transferred”.

41.2  Having assessed Eleanor’s testimony under cross-examination, the judge said that Eleanor “struck her as a forthright and honest witness” and the judge did “not consider that she had lied or made up evidence”.

42.  However, it is well-established that an honest witness may not be a reliable witness¹⁰⁶, and in assessing reliability, a judge is bound to consider all the evidence at trial. 

43.  The judge then addressed the two grounds Eleanor had proffered to support her case that her signatures were forged. 

44.1  First, the Signature Pattern ground.  Eleanor’s case was that it had been rigidly adhered to after 1976 when the Father insisted on her signing “Ng Yiu Chi” on Ng family company documents.  However, this is contradicted by a number of Ng family company documents bearing the signature “Eleanor Ng” in 1985. 

44.2  To counter that, Eleanor alleged that these 1985 documents (“the disavowed documents”) had also been forged.  These documents had come into being a decade before the restructuring, some 15 years before the siblings began their dispute, and included documents under which she derived the very shares which she asserted she owned¹⁰⁷.  These factors weigh heavily against her allegation of forgery.  

44.3  If indeed the Father had so rigidly insisted that she only sign “Ng Yiu Chi”¹⁰⁸, he would have made her re-sign the documents, as the “Eleanor Ng” signatures appeared on, not just one, but a number of the documents.  After all, the Father was running the companies in 1985 and for some 17 years afterwards.    

44.4  Moreover, and most importantly, the disavowed documents included Declarations of Trust which had been stamped¹⁰⁹ thus proving that these documents had come into being decades before the dispute arose. 

44.5  The upshot of these findings was that the “Signature Pattern” was not so rigidly adhered to, and that plank of Eleanor’s case fails.

45.1  The second ground Eleanor proffered was that she would not have signed the documents for the restructuring when she knew nothing about CAGL.  This was a hypothetical ground¹¹⁰, because it was not her case at trial that in fact the documents were shown to her and that she refused to sign them as the contents were “unreasonable”¹¹¹. All she said in re-examination was that if she saw a document that had a date, time and place that were false, she would refuse to sign it¹¹².

45.2  Quite apart from this being a hypothetical ground, this has to be evaluated against Eleanor’s own case which was that she respected the Father¹¹³, and the common ground that he was headstrong and made all the decisions for the family.  There was no evidence that the Father had ever consulted Eleanor in respect of any of the Ng family companies in the 32 years from 1965 (when HCL was incorporated) up to 1997.  Also in early May 1997, the Father was about to undergo a serious operation.  Given those family dynamics and circumstances, the judge was entitled to reject the hypothetical ground that Eleanor would have defied the Father¹¹⁴ by refusing to sign the documents (according to her, without even asking for corrections), thereby thwarting the Father’s intentions for the companies he had always controlled.  

45.3  As such, the judge found¹¹⁵:

“From the totality of the evidence it does not appear to be likely that Father would have consulted ... the married daughters [including Eleanor] ... in relation to the Restructuring. Due to their lack of involvement in the Family Companies, it is not surprising that Eleanor ... would not have become aware, or heard, of CAGL, particularly if they had simply signed the documents which Father (‘the boss’) has told them to sign, for ‘Father’s companies’”.

45.4  With both planks of Eleanor’s case having failed, the judge was entitled to find that, however much Eleanor honestly believed in the veracity of her own case, there was no reliable evidence to support her allegation of forgery.

46.1  The judge then went on to explain how her finding of Eleanor’s credibility was not inconsistent with the rejection of her forgery allegations, by inferring that Eleanor had forgotten that she had signed the documents.  It is well-established that facts can be found by inference, either from simple facts, or after a process of evaluation.    

46.2  At [64] the judge said:

“In my view, the equally if not more probable explanation is that Eleanor had indeed signed those disputed signatures, notwithstanding her Signature Pattern, and by mistake, as she had done so for the 1976 appointment of HEL directors”.

46.3  Pausing there, it is clear from the above context that when the judge referred to Eleanor signing the disputed signatures “by mistake”, what was meant was her signing “Eleanor Ng”, which was a mistake if the Signature Pattern had been rigidly adhered to.  

46.4  Continuing with the passage, the judge found:

“It is not easy, if at all possible, to remember each and every document one has signed over a span of 40 years. It would be easy for Eleanor to have forgotten that she had indeed signed on the Declarations of Trust and on the Restructuring Documents. She, like her other Siblings, simply trusted her Father with regard to the management of the family assets and the running of the Family Companies and how they were used, and was accustomed to being asked to sign documents which relate to the Family Companies, on the basis that they were Father’s companies, or were Father’s wishes or decisions for the Family Companies, and it is inherently probable that she might not have read the entire contents of the restructuring documents when they were given to her to sign, and had simply put her signature to the documents she was told to sign for these Family Companies”.

47.  On appeal, it was argued that the judge was in error in making that finding when it had not been pleaded by the PG or put to Eleanor in cross-examination. 

48.1  However, there is no requirement for the PG to plead this.  The rules of court only require a litigant to plead facts.  As such, the PG only needed to plead that Eleanor signed the subject documents.  It is for the person who seeks to disavow the signed document to show that she should have that remedy¹¹⁶.  As for cross-examination, the PG only needed to test the planks of Eleanor’s case that the signature which was apparently hers was not signed by her.

48.2  It is important to note that a judge is not hamstrung to find facts which accord strictly with the case of one party or the other.   The judge was perfectly entitled to infer the matters in [64] from the findings of fact she made (ie that Eleanor was an honest witness, but that she had failed to provide compelling evidence that the subject documents were forged). 

49.  Accordingly, the 4^th ground of appeal must also be rejected. 

(5) What is the effect of the signatures on the attendance lists?

50.  The appellants’ argument in this respect has been made against the following factual background.

51.  Taking an HEL document as an example, the document was headed with the name of the company and the words (collectively “the heading”):

“Minutes of an extraordinary general meeting of the company held at its registered office at 11:00 am on 5 May 1997”.

On one page was the marginal note “Present”, followed by “As per attendance list”.  The resolutions for short notice and for allotment were recorded on that page.  On the other page under the same heading was an Attendance List, signed by all the shareholders.      

52.  Some of the appellants argued that the signatures on the attendance lists only signified their presence at meetings, and as no resolutions as such were signed, they argued:

“a disagreeing signing party may well know he may be out-voted. Yet he/she may not agree to the content, but he/she still signed on the Attendance Sheet so that enough quorum will be reached”¹¹⁷. (Emphasis added).

53.  There is no merit in this ground.  First of all, since it was common ground that no physical meetings were held, there is no question of quorum.  Indeed, in Eleanor’s witness statement, she said the Father had never called any meetings¹¹⁸.  Secondly, where there was no physical meeting, but a company has proposed a written resolution, the resolution is passed at the time set out in s.116B(2) Companies Ordinance upon there being a sufficient majority of votes¹¹⁹.  So again, there is no question of quorum.

54.  In any event, it was not the appellants’ case at trial, and there was no evidence from them, that they had made it known that they signed the attendance list for the purpose of making up a quorum only.

55.  Further, they had signed instruments of transfer and sold notes transferring their shares in HEL, HCL and HCIL to CAGL.  These instruments of transfer expressly referred to the shares as “5% deferred shares”, thus acknowledging the resolutions for Conversion of family’s shares set out in the minutes.  

56.1  On the totality of the objective evidence, the judge was entitled to hold that the signatories (being all the shareholders) had thereby indicated their consent to the resolutions set out in the documents under the Duomatic principle, expressed as follows¹²⁰:

“ ... where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be”.

56.2  Thus in Cane v Jones¹²¹, an agreement between shareholders who had not met or even had a draft written resolution was held to express the unanimous will of the shareholders to amend the articles of association.

56.3  In EIC Services, Neuberger J (as he then was) expounded on the Duomatic principle in the following way:

“[122] ... The essence of the Duomatic principle ... is that, where the articles of a company require a course to be approved by a group of shareholders at a general meeting, that requirement can be avoided if all members of the group, being aware of the relevant facts, either give their approval to that course, or so conduct themselves as to make it inequitable for them to deny that they have given their approval. Whether the approval is given in advance or after the event, whether it is characterised as agreement, ratification, waiver or estoppel, and whether members of the group give their consent in different ways at different times, does not matter”.

57.  This leads to the 6^th ground of appeal.

(6)  Did the Duomatic principle apply when Eleanor “might not have read the contents of the restructuring documents”?

58.  It was argued on behalf of the appellants that as the Duomatic principle requires assent of all shareholders, it did not apply (even if the signatures were genuine) because the judge had found that it was¹²²:

“inherently probable that Eleanor might not have read the entire contents of the Restructuring Documents when they were given to her to sign, and had simply put her signature to the documents she was told to sign for these Family Companies”.

Earlier, the judge had also said¹²³:

“Due to their lack of involvement in the Family Companies, it is not surprising that Eleanor and Angela would not have become aware, or heard, of CAGL, particularly if they had simply signed the documents which Father (‘the boss’) had told them to sign, for ‘Father’s companies’”.

59.  It is of course correct that for the Duomatic principle to apply, all the shareholders have to agree to a proposed course of action, whether it is expressed formally as a resolution or not.  Thus, in EIC, because the directors themselves did not know a resolution was required for a course of action, they did not ask for consent from the shareholders for that course.

60.  In the present case however, the documents presented to Eleanor and Angela to sign were couched in terms of resolutions proposed for the respective companies. Even if they had not bothered to read them (and thus did not become aware of CAGL) because the documents pertained to companies controlled by the Father, they cannot argue that they had not given their assent, for their signatures evidenced their apparent consent, and there was no evidence of any vitiating factors.

61.  In Ming Shiu Chung, it was held¹²⁴:

“Reliance is universally placed on signatures appended to documents by persons of full age and understanding as signifying the signatory’s assent or adherence to what that document states. Where such a person has signed a document which purports to have legal effect, the law has never regarded it as enough to show that he signed without knowing its contents for the document to be disavowed. It is an everyday occurrence that people sign documents without reading the small (or even the large) print and therefore sign without actually knowing the terms (or all the terms) of the document signed. But they are held to the documents which they have chosen to sign unless there is to be a recognized legal basis for concluding that their apparent consent has been in some way vitiated or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity”. (Emphasis added).

62.  The vitiating factors at common law include fraud, mistake, misrepresentation, non est factum, duress, undue influence and lack of mental capacity¹²⁵.  As noted by the judge, none was alleged or proved by the appellants¹²⁶.  What the judge found was that it was probable that because of Eleanor’s and Angela’s attitude that the companies were controlled by the Father whom they respected and trusted, they were happy to sign documents to comply with his wishes without bringing an independent mind to bear on the contents.  But that attitude does not lead to the conclusion that they had not signified their consent by their signatures.  On the contrary, a person who defers to another’s wishes, and who signs a document in fulfilment of those wishes, obviously consents to it.  It is no different from approval given in advance¹²⁷ for whatever course the Father decides to take for the companies.  Such approval is binding.  

63.  For the above reasons, the 6^th ground of appeal must also be rejected. 

Order

64.  For the reasons set out above, all the appeals should be dismissed.   It was agreed by all parties at the conclusion of the hearing that costs should follow the event with certificate for two counsel.  It is so ordered.

Hon Chu JA:

65.  I agree with the reasons for judgment in CAMP 6/2019, and the judgment and costs order in CACV 21/2016 and CACV 24/2016 to CACV 29/2016 given by Yuen JA.

ANNEX