the personal representative of CHAN WAN ON, deceased v. TSANG YUK MUI

HCMP 1478/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1478 OF 2015

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D E C I S I O N

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1.  This is the appeal by the 1^st and 2^nd defendants (for convenience, they are referred to as “Defendants”) against an order made by Master Hui on 23 November 2015 (“Order”) appointing the applicant, Chan Wai Keung, to represent the plaintiff in these proceedings and to carry on the same on behalf of the plaintiff, pursuant to a Summons dated 2 July 2015 (“Summons”) taken out under O. 15, r. 6A, 7 and 15 of the RHC.

2.  It should be noted that before the Order was made, the plaintiff was “the personal representative of CHAN WAN ON (陳雲安), deceased”.  Pursuant to the Order, the plaintiff was henceforth named as “CHAN WAI KEUNG (陳偉強), person appointed to represent the estate of CHAN WAN ON (陳雲安), deceased”.  The costs of the Summons were awarded against the Defendants.

3.  At the heart of this appeal is the issue whether the estate of a person who died intestate can sue prior to the grant of the Letters of Administration (“LA”).  This issue turns upon the applicability of O.15, r.6A under which, inter alia, an interested person may obtain a “carry-on order” to conduct an action on behalf of an estate prior to the grant of LA.

4.  A reasonable person may think that this is a procedural matter and ought to be resolved expeditiously with the minimal of costs.  Unfortunately, it appears that the correct procedure by which an action can be commenced by an estate prior to the grant of LA is not settled.  Indeed, Mr Cheung, appearing for the Defendants, argued that O.15, r.6A has no application to an action by an estate prior to the grant of LA, save for a narrow scope of exception, into which these proceedings do not fall.

5.  It will be seen from the background of this case why the continuation of these proceedings is highly controversial.

Background

6.  In February 2013, the applicant applied for the grant of LA in respect of the estate of Chan Wan On, deceased (“Deceased”).  He asserts that he is the grandson of the Deceased.  The applicant says that his late natural father, Chan Koon Leung, was adopted by the widow of the Deceased as the son of the Deceased through Chinese customary adoption.  Up to the hearing of this appeal, no LA has been granted to the applicant. 

7.  On 17 June 2015, with the help of his solicitors (“Solicitors”), the applicant filed the Originating Summons (“OS”) in these matters.  The subject matters of the OS are 3 parcels of land (“Land”) situated in northern New Territories.  The title to the Land is jointly held in the names of the Deceased and the Defendants.  The relief sought in the OS is for the Land to be sold and the proceeds of sale be distributed equally between the plaintiff and all the defendants under the Partition Ordinance, Cap 352. 

8.  The Defendants say in their evidence filed in opposition to the Summons that these proceedings were commenced “in bad faith and/or not for a proper purpose”. 

9.  The reason why the Defendants have made such a serious allegation may be summarised as follows.  Adjacent to 1 of the 3 parcels of land, namely, Lot 886 in DD 79 there is a development of small houses (“Development”).  Lot 886 provided a convenient access to the Development, and the Defendants used to allow access to the Development over Lot 886.  The developer of the Development (“Developer”) had repeatedly asked the Defendants to sell Lot 886 to it without success.  However, dispute has erupted between the Defendants and the Developer (it is not clear from the evidence when it occurred), and the latter had threatened to get someone to succeed the title of the Deceased in Lot 886.  The Defendants then withdrew their consent to the use of Lot 886 by the Developer. 

10.  In opposition to the Summons, the Defendants challenge the evidence of the applicant.  They dispute his alleged relationship with the Deceased, and say that there has been no claim to the Deceased’s share of the Land for many years (the evidence suggests that the Deceased passed away in about 1947) until recently by the applicant.  His claim is motivated by the commercial interest of the Developer.  There is a Chinese agreement (“Agreement”) dated 16 May 2011 made between the Developer and the sons (“Sons”) of Chan Koon Leung (including the applicant), which has been exhibited by the Defendants.  The Agreement suggests that the Developer would hire lawyer(s) for the Sons for the purpose of obtaining half of the interest in Lot 886 in return for not more than 300 sq ft of the land to be used for access and amenities purposes. 

11.  In light of the Agreement, Mr Cheung said that these proceedings are champertous.  In fortification of his contention, Mr Cheung pointed out that a partner of the Solicitors had witnessed the signing of a development agreement concerning the Development.  The underlying suggestion is that the Solicitors are hired by the Developer. 

12.  Given the unusual circumstances of this case, one can understand the eagerness of the Defendants in resisting the Summons. 

Action by an estate before the grant of LA

13.  Mr Cheung’s argument that O.15, r.6A is of no assistance here may be said to be contrary to a body of legal opinion. However, putting aside Mr Cheung’s argument and assuming that the rule may be relied upon to bring an action on behalf of an estate before the grant of LA, there is a divergence of view as to how such an action should properly be launched.  The position is well-summarised by Hong Kong Civil Procedure 2016, vol 1, rubric 15/6A/2. 

14.  In short, there is a practice adopted by some legal practitioners whereby the deceased is named as the plaintiff, ie, “ABC, deceased”.  After the institution of the action, a carry-on order is then applied under O.15, r.6A.  Such a practice is supported by Bushra Bibi & Nabela Qoser v Method Building & Engineering Works Ltd [2014] 3 HKLRD 21 and Wong Lai Mei v Kwong Pak Leung [2015] 1 HKLRD 888. 

15.  On the other hand, the learned authors of Hong Kong Civil Procedure disagree with the practice and suggest that the appropriate manner in which to bring an action on behalf of an estate before the grant of LA is to do so in the name of “XYZ, the intended personal representative of the estate of …”.  Immediately after commencement of the action, an application for a representation order should be made under O.15, r.15. 

Nullity of the OS

16.  It is unnecessary to resolve this interesting and difficult procedural point, or the argument raised by Mr Cheung on the applicability of O.15, r.6A.  The reason is that Mr Cheung has complained about the irregularity of the OS in that it is purportedly brought by the personal representative of the estate of the Deceased when there is no such person. There is an address given of the plaintiff in the OS.  It is an address in England which is the same address as that of the applicant stated in his Affirmation of Administrator filed for the purpose of obtaining the LA for the estate of the Deceased. 

17.  As noted above, no LA has been granted in respect of the estate of the Deceased.  Mr Lam, appearing for the applicant, accepted that there can be no personal representative of the estate of the Deceased prior to the grant of the LA.  The representation made in the OS that it is “issued on the application of the Plaintiff, the personal representative of [the Deceased] …” is therefore false. 

18.  To make matters worse, there is a statement of truth (“Statement”) filed with the OS (although there was no requirement to do so under O.41A, r.2) which stated that “The Plaintiff believe that the facts stated in this [OS] are true”.  The Statement was made by a person as “Solicitor for the Plaintiff”.   

19.  Mr Lam argued that there is no falsity contained in the OS because the applicant did not assert to be the Plaintiff.  With respect, this is a bad point because, firstly, the applicant’s address was provided as that of the Plaintiff.  Secondly, it is quite clear from the Statement that someone must have given instructions to the solicitor to verify the facts stated in the OS.  Apart from the applicant, it is difficult to see who could have done so. 

20.  Mr Lam also argued that these proceedings have intentionally been brought by the estate of the Deceased, with a view to applying for a carry-on order after commencement.  In fairness to the applicant, it has to be pointed out that the Summons was issued 1 day before the receipt by the Solicitors of the Defendants’ acknowledgement of service of the OS.  This tends to support the proposition that it was always intended that a carry-on order be obtained. 

21.  However, this state of affairs is highly unsatisfactory, especially when Mr Lam accepted that the Solicitors must have known that there can be no personal representative of the estate of the Deceased without obtaining the LA.  I should add that the Solicitors must have access to the Hong Kong Civil Procedure and were able to find out, where necessary, how an action is to be brought on behalf of an estate of a deceased person.  On the other hand, it is possible that this state of affairs is attributable not, or not entirely, to the applicant but to those to whom he had entrusted the issuing of the OS. 

22.  I take the view that the OS is a nullity.  There are 2 reasons.  Firstly, there is no personal representative of the estate of the Deceased. 

23.  Secondly, it is a matter of general principle that an action on behalf of the estate of a deceased has to be brought by the personal representative.  Insofar as the exception created by O.15, r.6A is concerned, it was held by the Court of Appeal in Chung Yi Yuen v Lau Koon Shing [1999] 2 HKLRD 413 that the action should be brought in the name of the deceased, and that in the absence of compliance the action would not be properly constituted.  It should also be said that the applicant cannot rely on the alternative procedure proposed by the learned authors of Hong Kong Civil Procedure (see para 15 above).

24.  Further, in Re Estate of Luk Kim Ying [2008] 5 HKLRD 743, §22, it was said by the court that “it is trite that a party cannot purport to sue on behalf of an intestate estate unless and until that person is granted the letters of administration: Ingall v Moran [1944] KB 160.  Any action commenced by such a party purportedly on behalf of the estate must be struck out”.

25.  In the premises, the Order is set aside and this action must be dismissed.  As discussed with counsel at the end of the hearing, the parties are at liberty to fix a 1 hour hearing before this court to deal with the issue of costs as a consequence of the dismissal of this action.