QI MIN LIANG AND OTHER v. NANYANG COMMERCIAL BANK TRUSTEE LTD

HCMP 2508/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2508 OF 2003

------------------------------

----------------------------------------------------

REASONS FOR DECISION

----------------------------------------------------

INTRODUCTION

1. This was the application by Ms Jennifer Wong, the sole administratrix of the estate of her late mother, Madam Ng Kwan Ying (“Madam Ng”), who died on 22 November 2007, for an order that the sum of HK$1,999,074.81 paid into court by the defendant (“the Bank”), together with interest, be paid to her solicitors.  The application was opposed by the plaintiffs.

2. On 13 December 2012, after hearing the parties, I allowed the application.  I also dismissed the plaintiffs’ application for discovery, which was taken out for the purpose of enabling them to obtain documents to oppose Ms Wong’s application for payment out.

3. I had indicated that I would hand down the reasons for my decision, which I now do.

BACKGROUND

4. This Reasons for Decision should be read together with the Judgment that I handed down in HCA65/2004 on 26 July 2007 (“the 2007 Judgment”) and the Reasons for Judgment and the Judgment on Costs handed down by Yam J in the present proceedings on 6 January 2010 and 8 March 2011 respectively.

5. According to the statement of accounts (interim) dated 30 July 2003 prepared by the Bank, it was in possession of HK$4,512,393.85 being the aggregate amount received from the realization of shares and interest by Bermuda Trust.  As stated in the interim account, Madam Ng’s 40% entitlement was HK$1,804,957.54.  Because the plaintiff commenced the present proceedings in 2003, the Bank did not release Madam Ng’s entitlement to her.

6. By letter dated 13 January 2009, Ms Wong’s solicitors informed the Bank of her appointment as the sole administratrix of Madam Ng’s estate and requested the Bank to pay over Madam Ng’s entitlement to her.  By letter dated 19 March 2009, the Bank’s solicitors declined to do so until the conclusion of the present proceedings.

7. Pursuant to the order of Yam J dated 19 November 2010, the Bank made the payment into court of all the money that it held relating to Mr Choy’s estate.  He also ordered that any party could apply to the court by summons for any claim to the balance of the estate.  On 26 November 2010, the Bank paid HK$1,999,074.81 and HK$680,287.60 into court.

8. The aforesaid sum of HK$1,999,074.81 in fact represents Madam Ng’s current entitlement.  By a statement of accounts (final) prepared by the Bank for the period between 1 August 2003 and 25 November 2010, the Bank stated Madam Ng’s entitlement to be HK$1,804,957.54 with interest from 10 July 2003 to 25 November 2010 to be HK$194,117.27, totaling HK$1,990,074.81.  The applicant then asked the plaintiffs to make a joint application to the court for payment out of HK$1,999,074.81 to her with a view to saving costs.  That was, however, refused.

9. Ms Wong had no alternative but to bring the present application, which was supported by the Bank.

DISCUSSION

10. On the evidence before me, there can be no dispute whatsoever that the sum of HK$1,999,074.81 represents Madam Ng’s entitlement and should be paid out to her estate forthwith.

11. The plaintiffs’ first objection is that the applicant is not entitled to rely on the 2007 Judgment.  This is entirely misconceived because the applicant is not relying on that Judgment at all.  The plaintiff’s second objection is that the applicant’s “claim”, which is based on the Deed, is time barred.  This is again wholly misconceived for the simple reason that the application is not a claim as such.  It is made pursuant to Yam J’s order.

CONCLUSION

12. For these reasons, I allowed the application for payment out.  The plaintiffs’ application for discovery fell together with their objections to the payment out, which was dismissed as well.