SARAS GOPI ALSO KNOWN AS SARASWATHI GOPALAKRISHNAN v. BINA DEEGAN ALSO KNOWN AS BINA CUNNINGHAM ALSO KNOWN AS BINA GOPI

HCA 3075/2015

[2021] HKCFI 1588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3075 OF 2015

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DECISION

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1.  It is plainly in the interest of all the parties that the present discovery applications taken out by Bina[1] should be dealt with as expeditiously as possible and should not be allowed to hold up the further progress of this action. First, Mother[2] is now 96 years old and it is most desirable that the trial should take place as soon as possible and during her lifetime. Second, the action was commenced in December 2015. It is now more than 5 years after the commencement. Witness statements have not yet been exchanged.

2.  Having discussed with counsel, in exercise of my case management power, I shall adopt the following approach to deal with the fairly long list of items disputed by the parties.

3.  On an item-by-item basis, counsel will make submissions.  I shall proceed to make a ruling for that item straightaway, with brief reasons given.

4.  I will call a transcript of the hearing for the parties’ records.  If necessary, I will reduce the ruling parts into a written decision, perhaps with some minor alteration so that the written decision will make sense to its readers.

[Following the agreed approach, parties made submissions and the court made rulings in respect of each item. The rulings are reproduced below.]

THE FIRST SUMMONS

Schedule A, item 1 – Saras’ UK Wills and related Codicils created and/or executed in the period 1999 to 2010 including but not limited to those dated 30 September 1999, 10 December 2005, 2007 and 2010

5.  In respect of item 1 in Schedule A, I would allow discovery.  I am satisfied that the document requested is relevant to the jewellery claim.  However, I am not satisfied that it is relevant to the funds claim.  The reason is that it does not appear to be the Mother’s pleaded case that she made or entered into the arrangement because she did not have enough funds or assets available to meet her needs.  That is not the case that Bina would have to meet at trial.  Therefore relevance is not made out as far as the funds claim is concerned.

6.  In respect of the argument on privilege, in this case, on the materials before me, in particular the evidence of Bina which is not challenged in Mother’s affidavit evidence and also the email written by the UK solicitor at page 286 in bundle B1, it seems that the daughter had in fact participated in the communication between Mother and the UK solicitor quite fully and not as at a limited extent as submitted by Mr Whitehead.  And therefore, for that reason, Mother cannot assert privilege against Bina.

7.  Lastly, I do not accept the submission that the Pratt[3] decision is applicable to the present case.  Here, we are talking about the communication between Mother and the UK solicitor, and Bina’s role is to assist the Mother in the process. There is no document generated by Bina in that sense and therefore it is a very different factual scenario from the situation in Pratt and the principle discussed in Pratt therefore does not apply.

Schedule A, item 2(a) – All written advices (including attendance notes of meetings, calls and advice), correspondence, letters, email and/or memoranda passing between Saras and/or Subi and Murray Hallam of Messrs Withers, Solicitors, London from June 1999 to to-date in relation to Saras’ estate planning, UK assets, UK Wills and codicils and UK tax position

8.  In respect of item 2(a), I will grant discovery.  I am satisfied that relevance is established in relation to the funds claim.  In the pleaded case of Bina, it says Mother sought advice on estate planning and as a result entered into the arrangements.  Therefore, the email or the correspondence referred to under this item would help to advance Bina’s case or might help to advance Bina’s case.  Therefore, relevance is established.

Schedule A, items 2(b), (c) and (d)

Schedule A, item 2(b) – All written advices (including attendance notes of meetings, calls and advice), correspondence, letters, email and/or memoranda passing between Saras and/or Subi and Chris McGowan, Accountant, London in the period 2013 to to-date in relation to Saras’ estate planning, UK assets, UK Wills and Codicils, UK tax position including Saras’ UK tax returns and correspondence with Her Majesty’s Revenue (“HMRC”)

Schedule A, item 2(c) – All written advices (including attendance notes of meetings, calls and advice), correspondence, letters, email and/or memoranda passing between Saras and/or Subi and Lubbock Fine, Accountants, in the period January 1998 to February 2013 in relation to Saras’ estate planning, UK assets, UK Wills and Codicils, UK tax position including Saras’ UK tax returns and correspondence with HMRC

Schedule A, item 2(d) – All written advices (including attendance notes of meetings, calls and advice), correspondence, letters, email and/or memoranda passing between Saras and/or Subi and King and King, Accountants, London in the period 2006 – 2009 in relation to Saras’ estate planning, UK assets, UK Wills and Codicils, UK tax position including Saras’ UK tax returns and correspondence with HMRC

9.  By consent of the parties, I grant discovery in respect of items 2(b), (c) and (d).

Schedule A, item 3 – Saras’ Indian Wills and related codicils including but not limited to that witnessed by Manual Thomas and Narayan Radhakrishnan created or executed by Saras on or around 28 February 2008

10.  In respect of item 3 of schedule A, I allow discovery.  The Indian will is plainly relevant to the issue of the beneficial ownership of the Cuffe Castle property.  The will itself is not a privileged document. 

11.  And as far the statement in Mother’s affirmation is concerned, she said that there is no such documentation in her possession, custody or control.  That is not sufficient discovery.  The general rules would require Mother to state, if the document is no longer with her, when she parted with the document and what has become of the document.

Schedule A, items 5(a) to (d)

Schedule A, item 5(a) – All Account Statements, transfer documents, correspondence and/or instructions in relation to the AIB Accounts 323/00608943/01 and 323/00608943/02 and the joint account 323/00614433 for the period of 2006 to December 2010

Schedule A, item 5(b) – All Account Statements, transfer documents, correspondence and/or instructions in relation to the SCB Account for the period of 1996 to January 2013

Schedule A, item 5(c) – All Account Statements, transfer documents, correspondence and/or instructions in relation to the Britannia Account for the period of January 2013 to to-date

Schedule A, item 5(d) – All Account Statements, transfer documents, correspondence and/or instructions in relation to the NWB Account for the period January 2013 to to-date

12.  In respect of items 5(a), (b), (c) and (d), I refuse to order discovery.  I am not satisfied that relevance in the Peruvian Guano sense has been made out by Bina.  As far as the actual transfers are concerned, it is for Mother to make out the case.  It is not for Bina now to seek documents to help advance Mother’s case.  In any event, the crux of the issue is the reason why these transfers were made.  On this point, the parties are putting forward conflicting versions.  I am not satisfied that just by looking at the bank statements, it would help to advance Bina’s case or damage the Mother’s case.  Hence, relevance is not established.

Schedule A, item 6 – All title Deeds, Certificates of Ownership and/or transfer, sale or disposition or mortgage of the Cuffe Castle property including Nominee forms filed in favour of Bina in the period 2000 and 2012 together with all correspondence in relation thereto

13.  In respect of item 6, I would order discovery of this category save that the reference to “all correspondence” should be taken out.  I am satisfied that the documents are relevant to the issue, first of all, of the legal ownership of the Cuffe Castle property prior to 1995.  It also relates to the overall question as to the beneficial ownership of the property, particularly, these nominee forms filed in 2000 and 2012.  These are relevant to the issue of ownership and they ought to be disclosed. 

Schedule A, items 7 and 8

Schedule A, item 7 – All Agreements for the lease of, and dealings with the Cuffe Castle Property in the period 2000 to to-date and all correspondence in relation thereto including but not limited to that with the Cuffe Castle Housing Society and with Sunil Sachdev

Schedule A, item 8 – All receipts for rent paid in respect of the Cuffe Castle Property for the period 2000 to to-date and deposited with Dena Bank, Mumbai and/or other Banks in India

14.  I order discovery under items 7 and 8.  These documents are clearly relevant to the issue of quantum.  There is no order for a split trial.  Hence, Bina is quite entitled to ask for damages at the trial.

Schedule A, item 9 – All Standard Chartered Bank and HSBC Bank statements relating to the sales proceeds of Baguio Villa property and transfers thereof

15.  I refuse discovery under item 9 for the same reason I have refused discovery for item 5.

Schedule A, items 11(a) to (g)

Schedule A, item 11(a) – Copies of all pleadings and affidavits filed by Saras in HCA 4966 of 1988

Schedule A, item 11(b) – Copies of all pleadings and affidavits filed by Saras in HCA 4967 of 1988

Schedule A, item 11(c) – Copies of all pleadings and affidavits filed by Saras in HCA 5881 of 1988

Schedule A, item 11(d) – Copies of all pleadings and affidavits files filed by Saras in HCA 6039 of 1988

Schedule A, item 11(e) – Copies of all pleadings and affidavits files filed by Saras in CACV 27 of 1989

Schedule A, item 11(f) – Copies of all pleadings and affidavits files filed by Saras in High Court Miscellaneous Proceedings No 89 of 2236

Schedule A, item 11(g) – Copies of all pleadings and affidavits files filed by Saras in High Court Miscellaneous Proceedings No 90 of 0308

16.  I would order discovery of items 11(a) to (g). These items of documents are clearly relevant to the jewellery claim.  And I also accept Bina’s submission that it would be for the Mother to explain when she parted with these documents and what has become of them.  The exercise of perhaps approaching the former solicitors could not be oppressive and should be done.

Schedule A, items 13(a) to (d)

Schedule A, item 13(a) – Share transfer instruments executed in 2007 in relation to the purported transfer of shares in Industrial & Technical Entrepreneurs Limited (“ITE”) from Bina to Subi and from Rashme Gopi to Saras

Schedule A, item 13(b) – Share transfer instruments executed in 2012 in relation to the purported transfer of shares in ITE from Saras to Subi

Schedule A, item 13(c) – Bought and Sold Notes executed in 2007 in relation to the purported transfer of shares in ITE from Bina to Subi and from Rashme Gopi to Saras

Schedule A, item 13(d) – Bought and Sold Notes executed in 2012 in relation to the purported transfer of shares in ITE from Saras to Subi

17.  But now I take into account the fact that these are very isolated and discrete documents – we are not talking about tens of pages – and this goes to the very core of the counterclaim in relation to the transfer.  Therefore, for that reason, if we fast-forward to the trial that is hopefully going to take place soon, I think the trial judge would also prefer to see these documents as these form the very basis of the counterclaim.

18.  So that would be my ruling for items 13(a) to 13(d).  I would hold that these documents are relevant and would be helpful to the trial judge when determining the counterclaim made by Bina.

Schedule A, items 13(e) and 14

Schedule A, item 13(e) – Correspondence with ITE’s auditors, accountants and Company Secretary relevant to the transfer and the Inland Revenue and Stamping Office in Hong Kong concerning the said transfers

Schedule A, item 14 – All Statutory Books, Annual Reports, Annual Accounts and Auditor’s Reports of ITE from 1988 to to-date

19.  In respect of items 13(e) and 14, I would order discovery of the audited financial statements of ITE from 2007 to now, and I would refuse discovery of the rest of the items.

Schedule B (the first summons) and Schedules B and C (the second summons)

20.  In respect of schedule B in the first summons and schedules B and C in the second summons, I order discovery save for items 25 and 37 in Schedule C.  Among the items sought, there are these redacted documents that have previously been disclosed.  While the burden is on the applicant to show that the redaction is not properly made, in the present case, there is only this bare assertion on the part of the Mother’s side to say that they are private information, confidential information or privileged.  There is really no room for the other side to assess, and in fact for the court to assess, whether that is right or not. 

21.  In respect of the further documents sought, which are referred to in the previous lists of documents or affidavits, there seems to be no serious dispute as to relevance.  No valid objection has been raised, and therefore I order discovery. 

THE SECOND SUMMONS

Schedule A, items 3 and 4

Schedule A, item 3 – All Account Statements of SCB Joint Account no 447-1-104613-4 maintained by Saras and Bina from July 2008 to December 2012

Schedule A, item 4 – All Account Statements of Standard Chartered Bank accounts nos 447-1-097721-5, 447-1-987077-4 and 447-5-018574-3 between July 2008 and December 2012

22.  In line with my ruling on the equivalent items in the first summons, I would refuse discovery of items 3 and 4.

Schedule A, items 1 and 2

Schedule A, item 1 – Tax returns and all accompanying financial statements (including but not limited to balance sheets, inventories of properties and profit and loss statements) of Industrial and Technical Entrepreneurs Limited, Taiwan Branch (Taiwanese registration no. 23111555) (“ITE Taiwan”) filed by ITE Taiwan at the Taxation Administration, the Ministry of Finance, Republic of China from 2007 to 2014

Schedule A, item 2 – All documents relating to the sale & purchase (including but not limited to transfer and registration documents) of the ITE Taiwan office located at the 14^th Floor, 131 Sung Chiang Road, Taipei, Taiwan (“Taiwan Property”) from GTI Taiwan to ITE Taiwan in or around 1989

23.  For items 1 and 2, they both relate to the ITE claim.  And in line with my ruling on the equivalent items in the previous summons, I would grant discovery for the same reasons. 

Schedule A, item 5 – All correspondence and documents between Saras and/or Subi and Cuffe Castle Co-Operative Housing Society from 1975 to to date

24.  I will refuse item 5 in respect of the correspondence and documents sought for the same reason that I refused the discovery of correspondence in the equivalent item in the first summons. 

[Parties made submissions on costs]

ORDERS

25.  I make an order in terms of the two discovery summonses, except that (a) paragraph 4 of the first summons be deleted; (b) the schedules to the summonses should be amended to reflect the rulings which I have made in the course of today’s hearing; and (c) paragraph 5 of both summonses be amended so that Bina should only have half of the costs of the summonses. 

26.  The reasons for my costs decision are as follows. 

27.  The hearing of the summonses has been necessitated by the Mother’s opposition to the items sought.  But in substance, orders have been made in respect of the majority of these items.  However, given that a fair number of concessions have been made by Bina and a number of rulings made against her, I will apply a discount on the costs and Bina should only be entitled to half of the costs of the summonses.