HSU LING MEI v. THE PERSONAL REPRESENTATIVE OF IP TAI LUI LEONARD, DECEASED

DCCJ 3507/2023

[2024] HKDC 1740

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3507 OF 2023

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DECISION

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1.  This is the plaintiff’s appeal against Master Lo’s decision dated 19 July 2024. The Master dismissed the plaintiff’s ex parte application under O.15, r.6A(4) of the Rules of District Court (“RDC”) for an order appointing Mr Chan King Wong, Johnny (‘Mr Chan’), to represent the estate of IP, TAI LUI (‘the Deceased’) in this action for the purpose of accepting the service of the Writ, indorsed with a Statement of Claim herein, and dealing with the intended non-party discovery application to be issued by the plaintiff.

2.  It is trite that an appeal from the master to the judge in chambers is dealt with by an actual rehearing of the application, which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it. (Hong Kong Civil Procedure 2024 ed Vol 1 para 58/1/2 at p 1084)

BACKGROUND

3.  The plaintiff and her late husband, Mr Lin Chih Jen (‘Mr Lin’), purchased a landed property known as Flat B on 23/F of Yan Yee Court, No. 28 Wanchai Road (‘the Property’). The Property comprises a flat on 23/F and a flat roof on top. The purchase of the Property was completed in January 2003. Mr Lin passed away on 19 August 2011.

4.  The Deceased was the sole proprietor of the solicitors firm, Messrs T L Ip & Co (‘the Firm’).

5.  To effect the purchase of the Property, the plaintiff and Mr Lin retained the Firm as their solicitors to prepare the necessary legal documents and handle the conveyancing work. The Firm performed the work, and the corresponding assignment documents dated 10 January 2003 were executed.

6.  According to a press statement dated 9 November 2022 issued by the Law Society of Hong Kong (‘the Law Society’), the Deceased passed away on 23 August 2022, and he left a will (‘the Will’) to appoint a solicitor-manager to manage the Firm upon his death under rule 5AA of the Solicitors’ Practice Rules (Cap. 159H). Further, the Law Society resolved to intervene in the practice of the Firm, and Messrs Ronald Tong & Co (‘RTC’) were appointed as the Intervention Agent, and the intervention took place on 9 November 2022.

7.  The plaintiff commenced the present action on 15 August 2023. The details of the plaintiff’s claim are set out in her Statement of Claim indorsed to the Writ of Summons. For the present appeal, details of the plaintiff’s claim are not important. In a nutshell, the plaintiff claims against the Deceased’s estate for breach of contract and/or negligence on the part of the Deceased in the handling of the conveyancing work for the purchase of the Property back in 2003 and, as a result, the plaintiff suffered loss and damage when the Property was sold in July 2023.

8.  To progress the present proceedings, a personal representative has to be appointed to act for the Deceased’s estate. In that regard, the plaintiff’s solicitors made enquiries with the Law Society, trying to ascertain the details of the Will and the identity of the Solicitor-Manager nominated by the Deceased in the Will. The Law Society, however, responded that without a corresponding court order, they would not supply the information sought, nor would they provide a copy of the Deceased’s Death Certificate or the Will.

9.  Without sight of the Death Certificate and the Will, the Official Solicitor refused to be appointed under O.15, r.6A(4) and/or r. 6A(5A) of RDC. Furthermore, without the Will, the plaintiff does not know if the Deceased has appointed any executor, whether he has any next of kin, and/or if there exist other persons who may have an interest in the Deceased’s estate.

10.  The plaintiff, therefore, took out an ex-parte summons under O.15, r.6A(4) of RDC on 14 November 2023 (‘the Summons’), seeking an order of the court appointing Mr Chan to represent the estate of the Deceased. It is stated explicitly in the Summons that such representation is limited to accepting the Writ (with the indorsed Statement of Claim) herein and dealing with the intended non-party discovery application to be issued by the plaintiff. The affirmation of Ho Pak Ming (‘Mr Ho’) dated 14 November 2023 was filed in support of the Summons.

11.  After the said first affirmation, Mr Ho filed 4 further affirmations, namely his 2^nd affirmation filed on 17 January 2024, 3^rd affirmation filed on 7 February 2024, 4^th affirmation filed on 24 April 2024 and 5^th affirmation filed on 20 June 2024, in which Mr Ho provided further factual information and submissions in response to a series of requisitions raised by Master Jo Siu between 5 December 2023 and 20 May 2024. The facts set out in this decision are gathered from Mr Ho’s affirmations.

12.  Mr Ho further asserts that given the nature of the plaintiff’s claim, which involves professional negligence, any judgment sum to be ordered under the present action would probably be covered by the Hong Kong Solicitors Indemnity Fund Limited (‘the Fund’). The Fund was therefore notified of this action accordingly.

13.  This court is further informed of the following:

(a)  According to the search carried out by the plaintiff’s solicitors, no grant of probate or administration has been made in respect of the estate of the Deceased;

(b)  The plaintiff tried to conduct a marriage certificate search to ascertain if the Deceased had been married. However, it was refused by the Registrar of Marriages on the ground that the purpose of the intended search was inconsistent with the purpose of establishing marriage records under the Marriage Ordinance, Cap. 181. The plaintiff therefore does not know whether the Deceased has a surviving spouse, who might accept to be appointed as the personal representative of the Deceased’s estate;

(c)  Unless the plaintiff obtains a copy of the Will, she has no way of knowing if the Deceased has any next of kin, and if so, who they are;

(d)  The Law Society, being in possession of the Will, has liaised with the Solicitor-Manager (presumably named in the Will) and the family member(s) of the Deceased since August 2022, yet no satisfactory arrangement could be made in relation to the practice of the Firm, which resulted in the intervention by RTC. The Solicitor-Manager named in the Will and the Deceased’s family members are therefore unlikely to agree to be appointed;

(e)  Mr Yeung Po Chin (‘Mr Yeung’) was at the time a consultant of the Firm, and he was the solicitor attesting the assignment by which the Property was conveyed to the plaintiff and Mr Lin;

(f)  Mr Chan is a practising solicitor independent from the plaintiff or her solicitors in this action; and he is willing to serve as the personal representative of the Deceased’s estate for the limited purpose stated in the Summons;

(g)  Except for Mr Chan, all the others, such as Mr Yeung, the Official Solicitor, RTC, the Law Society and the Fund, do not agree to be appointed as the personal representative of the Deceased’s estate;

(h)  Upon the appointment of Mr Chan as sought in the Summons, the plaintiff will apply for non-party discovery against the Law Society of the Death Certificate of the Deceased and the Will. Upon obtaining the Death Certificate and the Will, the plaintiff will approach the executor and the Solicitor-Manager named therein and enquire if any of them is willing to be so appointed. If so, the plaintiff will then carry on the present action against the person so appointed (as the representative of the Deceased’s estate);

(i)  Both the Law Society and RTC have indicated that they will comply with the court order regarding discovery if one is made.

14.  On 19 July 2024, the Summons was dismissed by Master Charmaine Lo with no order as to costs. In rejecting the Summons, the learned Master specifically pointed out that Mr Chan is not a “person interested in the deceased’s estate” within the meaning of O.15 r.6A(4) of RDC and the plaintiff was not able to provide any local authorities where a practising solicitor, counsel or accountant etc who has no interest in the deceased’s estate, had been so appointed under the said rule.

15.  On 29 July 2024, the plaintiff served its Notice of Appeal against Master Lo’s decision.

DISCUSSION

16.  Order 15 rule 6A provides, inter alia, that: -

“(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

…

(3) An action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement and the cause of action survives, as having been commenced by his estate or against it in accordance with paragraph (1), as the case may be, whether or not a grant of probate or administration was made before its commencement.

(4) In any such action as is referred to in paragraph (1) or (3)—

(a) the plaintiff shall, and the defendant, the personal representative of the deceased or any person interested in the deceased’s estate may, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person so appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;

(b) the Court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in subparagraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

(5) Before making an order under paragraph (4) the Court may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit.

…

(7) Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.”

17.  It is evident that the purpose of the rule is to provide for a mechanism to overcome the difficulties of bringing proceedings against a person who has died without a grant of probate or administration being made to his estate or where an action has been brought against a person who is already dead at the time of the commencement of the action. Under the rule, a plaintiff can bring action against the estate of the deceased, where the cause of action survives, before the expiry of any period of limitation even though no grant of probate or administration has been made. See Hong Kong Civil Procedure 2024 ed Vol 1 para 15/6A/1.

18.  Without it, it is possible for an estate to avoid liability for the deceased’s civil liability or obligations simply by not seeking a grant of probate or administration.

19.  Both in the plaintiff’s Skeleton Submissions and during the course of the hearing, Mr Ho Pak Ming, solicitor acting for the plaintiff, brought to my attention a remark made by HHJ Wong (as the Presiding Officer of the Lands Tribunal) in the case of Capital Matrix Ltd & Ors v Representatives of Khan Mohammed (Deceased) & Ors [2015] 5 HKC 47 where the learned Judge, upon considering the terms of O.15, r.6A of the Rules of High Court (‘RHC’), made a remark (at para 19) that, “It appears from reading of the rules that the person so appointed should be someone having an interest in the outcome of the proceedings or the estate.”

20.  As, for the present purposes, the relevant part of O.15, r.6A(4) of RDC, namely “the plaintiff shall, …, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings …” is identical to that of O.15, r.6A(4) of RHC[1], the said remark in Capital Matrix Ltd & Ors may therefore be considered as applicable to the interpretation of O.15, r.6A(4) of RDC. From the exchange between Master Siu and the plaintiff’s solicitors through a series of requisitions and answers, which led to the dismissal of the Summons by Master Lo, it appears that the said remark made in Capital Matrix Ltd has strongly influenced the decision of the learned Master, who might have considered herself being bound thereby.

21.  At the hearing before me, Mr Ho submitted that the said remark made by the learned Judge in Capital Matrix Ltd & Ors is, at best, a holding made obiter, which has no binding effect on inferior courts or the same court in subsequent cases. I agree. In Capital Matrix Ltd, the competition for the appointment was between the son and the widow of the deceased; both of them have an interest in the estate, thus the court in Capital Matrix Ltd did not have to make and was in fact not making any ruling on the question of whether the person to be appointed under O.15, r. 6A of RHC has to be someone having an interest in the outcome of the proceedings or the estate.

22.  Furthermore, I note from the judgment of Capital Matrix Ltd that the learned Judge has not set out his analysis or the mental process involved in arriving at his conclusion. Without the benefit of knowing the underlying reasoning adopted in Capital Matrix Ltd, I can only bring my own interpretation of O.15, r.6A(4) of RDC to bear on this matter.

23.  First, on my reading of O.15, r.6A(4) of RDC, there is no requirement for the person to be appointed to have an interest in the outcome of the proceedings or the estate; the rule simply does not say so. And I do not see any reason or justification for reading such an additional requirement into the rule.

24.  Second, it is to be noted that O.15, r.6A(5) refers explicitly to “insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit”, had the law draftsman of rule 6A(4) or the legislature intended to confine the person to be appointed under the rule to persons having an interest in the proceedings or the estate, it would have expressly set out in the rule just as what they do in rule 6A(5).

25.  Third, if the Official Solicitor (who in most cases would not have any interest in the estate he represents) is fit to be appointed under r. 6A(5A), I am unable to see why the person to be appointed under r.6A(4) has to have an interest in the estate to serve.

26.  Lastly, as I mentioned above, the purpose of O.15, r.6A is to overcome the difficulties of bringing the action against the estate while no grant of probate or administration has been made. In cases where the plaintiff seeks to recover loss and damage against the estate of the deceased, those who have an interest in the estate generally do not have the incentive to take up the role of personal representative to facilitate the plaintiffs’ claims. In all likelihood, these interested parties would avoid depleting the estate by laying low and not seeking a grant of probate or administration. If the person to be appointed under rule 6A(4) cannot be anyone other than one of those interested parties, it would, in my view, defeat the primary purpose of this rule. Such an interpretation which is inconsistent with and does not serve that purpose should not be adopted.

27.  In my view, the reference to “any person interested in the deceased’s estate” in the first part of r.6A(4) merely provides for a further category of persons having the right to seek a court order appointing a person to represent the estate of the deceased, it has no bearing on the interpretation of the meaning of the term ‘person’ under the rule or the determination of the qualification of the person to be appointed thereunder, still less that the person has to have an interest in the estate.

28.  On the evidence before me, I am satisfied that (a) the plaintiff has taken all reasonable steps to ascertain the identities of the persons having an interest in the estate, who may be willing to take up the position of personal representative of the Deceased’s estate, (b) those that have been approached by the plaintiff’s solicitors failed to respond or respond positively to the request, (c) the Official Solicitor refused to serve as the personal representative of the Deceased’s estate because of the lack of the Deceased’s Death Certificate and the Will, (d) Mr Chan is willing to serve as the personal representative of the Deceased’s estate if so appointed by the court, (e) the plaintiff has disclosed in her Statement of Claim a valid claim against the Deceased’s estate, and (f) if the present application is refused by the court, the plaintiff will not be able to get hold of the Death Certificate of the Deceased or the Will, and thus cannot pursue her claim in this action.

29.  I further note that under Order 1A, rule 2 of RDC, when the court exercises its powers or when it interprets any of the rules, it shall seek to give effect to the underlying objectives of the rules, which include ensuring fairness between the parties and the case is dealt with as expeditiously as is reasonably practicable. In the present case, if the plaintiff is left with no option but to abandon her claim against the estate simply because those having an interest in it refuse to serve as the personal representative of the estate, it would be most unfair to the plaintiff. Hence, even if I am wrong in my earlier analysis, to give effect to the underlying objectives of RDC, I would still construe Order 15 rule 6A(4) in the same way to enable the plaintiff to pursue her claim against the estate in this action.

30.  I therefore hold that, on the proper construction of Order 15 rule 6A(4) of RDC, the person to be appointed thereunder to represent the deceased’s estate for the purpose of legal proceedings does not have to have any interest in the estate or the proceedings.

31.  Further, in the present circumstances, it is in my view appropriate to appoint Mr Chan for the limited purposes as stated in the Summons.

CONCLUSION

32.  For the above reasons, I would allow this appeal and make an order in terms of paragraph (1) of the Summons.

33.  There remains the question of costs. On the facts of this case, it appears that the appropriate costs order is the costs of the Summons being in the cause. I therefore so order on a nisi basis. In the absence of an application to vary within 14 days, the nisi costs order shall become absolute without further order of the court.