LAM SIK YING, ADMINISTRATOR FOR THE ESTATE OF LAM TIM ALIAS STAN LAM TIM, DECEASED v. LAM SIK SHI AND ANOTHER

CACV 283/2017

[2020] HKCA 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 283 OF 2017

(ON APPEAL FROM HCA 4713/2001)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lam VP (giving the Judgment of the Court):

I. Introduction

1.  By a judgment dated 13 November 2017 (the “Judgment”) in HCA 4713/2001, Wilson Chan J ordered that several paragraphs in the Amended Indorsement of Claim and the Re-Amended Statement of Claim, and consequentially the corresponding paragraphs of the Re-Amended Reply and witness statements of the Plaintiff (“Victor”) be struck out on the ground that it was an abuse of the court’s process.

2.  By a Notice of Appeal dated 11 December 2017 (the “Notice of Appeal”) (filed on 13 December 2017), Victor appealed against the Judgment. 

3.  By a summons dated 17 March 2020 (the “Striking Out Summons”), the 1^st Defendant (“Tony”) applied to strike out the Notice of Appeal and dismiss Victor’s appeal (1) for lack of locus standi on the part of Victor to proceed with the appeal; and/or (2) for want of prosecution.  The Striking Out Summons is supported by the Affirmation of Lam Sik Shi (i.e. Tony) dated 17 March 2020.

4.  On 14 April 2020, the Registrar of Civil Appeals (“RCA”) directed inter alia that the time for Victor to file and serve the affidavit in opposition be extended to 5 May 2020 due to the general adjournment of court proceedings arising from the COVID-19 pandemic.  The RCA also directed that the parties should comply with paragraphs 36(3)-(12) of Practice Direction 4.1 upon Victor’s filing of the affidavit in opposition or upon the expiry of the deadline for Victor to file and serve his affidavit of opposition (i.e. 5 May 2020), whichever is earlier.

5.  No affidavit of opposition was filed and served by Victor by the said deadline.  On 18 May 2020, Tony lodged with the Court an application bundle and written submissions. 

6.  As Victor still failed to file and serve any affidavit in opposition and failed to lodge any written submissions, the RCA made the following directions on 8 June 2020:

“ 1. [Victor] has so far failed to lodge his written submissions pursuant to the Directions [on 14 April 2020] and paragraph 36(6) of Practice Direction 4.1. Unless by 4pm on 16 June 2020, [Victor] do lodge his written submissions, he shall be deemed to have no such submissions to lodge and [Tony’s] strike out summons shall be referred to the Court of Appeal for consideration on paper without further notice.

2. It is also noted that no affidavit in opposition has been filed and served by [Victor] as per the Directions.”

7.  No written submissions were lodged by Victor by 4 pm on 16 June 2020.  Neither did Victor file any affidavit in opposition.  In such circumstances, he waived the right to an oral hearing: see Re Manjit Kaur [2018] HKCA 247; Re Ali Mukaddar [2019] HKCA 51 at [2]; CSFK v HWH [2020] HKCA 207 at [12].

8.  After having considered the documents, we are of the view that in the circumstances it is appropriate to proceed to deal with Tony’s application on paper without an oral hearing.

II.  Background

9.  The factual background relevant to the present appeal and striking out application can be summarised as follows.

10.  Victor and Tony are half-blood brothers.  They belong to two different branches of the same family of Lam Tim, their father (the “Father”), who passed away on 6 January 1983. 

11.  After the Father passed away, there were disputes between Victor and Tony regarding the estate of their Father (the “Estate”). The first set of proceedings between them was HCA 1885/1987, in which Victor claimed that Tony had wrongfully intermeddled with the Estate and that Tony had failed to give any account of the Estate. 

12.  Victor, Tony and other beneficiaries of the Estate have since been litigating against each other which led to, inter alia, HCA 4713/2001, HCA 1605/2004, HCA 894/2011 and HCA 1974/2015.

(A)  HCA 1885/1987

13.  HCA 1885/1987 was compromised by means of a Tomlin Order dated 13 April 1992.  The schedule to the Tomlin Order, inter alia, provided that:

“ (f) Further for the avoidance of doubt, [Tony] expressly agrees and acknowledges his responsibility and liability to account to the estate of the Deceased of all income, receipts, receivables, expenses outgoings etc in respect of the Deceased’s estate which have come into his hands (whether personally or by through his agents) since his death of the Deceased and unreservedly allows the administrators or co-administrator to ask for and make all necessary and proper accounts and inquiries in respect of the estate of the Deceased.”

14.  Victor had then twice attempted to enforce and carry into effect paragraph (f) of the Tomlin Order.  The first attempt was by summons dated 21 September 1992 under O. 42 r. 5A on the ground that Tony had defaulted in complying with paragraph (f) of the Tomlin Order and the application was granted.

15.  By another summons dated 5 November 2012, Victor took out another application under O. 42 r. 5A on the same ground that Tony defaulted in complying with paragraph (f) of the Tomlin Order (the “Enforcement Summons”). 

16.  The Enforcement Summons was heard and dismissed by Mimmie Chan J on 21 October 2013 for inordinate delay in seeking compliance with the terms of the Schedule.

17.  Mimmie Chan J refused Victor leave to appeal on 19 March 2014.  No further appeal was sought by Victor thereafter.

(B)  HCA 4713/2001 (i.e. the action from which Victor seeks to appeal in the present appeal)

18.  Victor was appointed as the administrator of the Estate on 24 March 1999.  HCA 4713/2001 was initiated by Victor in his then capacity as the administrator of the Estate against Tony for (allegedly) intermeddling with the Estate.

19.  As stated in his Judgment handed down on 13 November 2017, Wilson Chan J found that the issues raised by Victor in HCA 4713/2001 overlapped with the issues in HCA 1885/1987.  As Mimmie Chan J dismissed the Enforcement Summons, HCA 1885/1987 has come to an end and Tony was no longer required to account for loss for the alleged intermeddling.

20.  In such circumstances, Wilson Chan J found that Victor was “in effect attempting to have a second bite of the cherry to claim against Tony against for loss resulting from the alleged intermeddling of the State, a claim which has already been refused by Mimmie Chan J in HCA 1887/1987”.

21.  Wilson Chan J concluded that “it is an abuse for Victor to seek to get round the unfavourable decision of Mimmie Chan J” and “this is manifestly unfair and would bring the administration of justice into disrepute”.  It was held so notwithstanding that Victor was suing as a beneficiary in HCA 1885/1987 and as an administrator in HCA 4713/2001.

22.  For such reasons, Wilson Chan J ordered that various paragraphs in the Amended Indorsement of Claim and the Re-Amended Statement of Claim, and consequentially the corresponding paragraphs of the Re-Amended Reply and witness statements of Victor, be struck out. 

23.  Victor filed the Notice of Appeal to appeal against Wilson Chan J’s Judgment on 13 December 2017.  Tony took out the Striking Out Summons on 17 March 2020.

(C)  HCA/1605/2004 & HCA/894/2011

24.  HCA 1605/2004 and HCA 894/2011 were taken out by respectively Tony and one Lam Mo Chu Susie (another beneficiary of the estate) (“Susie”) against Victor as the administrator of the Estate. 

25.  These actions were heard together, and the trial lasted for more than 20 days before Chow J.  Chow J handed down his judgment on 3 October 2016.

26.  The background and decision are set out in Chow J’s judgment dated 3 October 2016 and need not be repeated here.  It suffices for the present purpose to note that Chow J held that Victor was in breach of his fiduciary duties owed to the Estate in his sale of a property of the Estate.

(D)  HCA 1974/2015

27.  HCA 1974/2015 was taken out by Susie for the removal of Victor as administrator of the Estate.  The matter came before Chow J on 31 March 2017 and 24 August 2017.

28.  Chow J handed down judgment on 4 September 2017. In light of, inter alia, the finding in HCA 1605/2004 and HCA 894/2011 of Victor’s breach of fiduciary duties (as to which there was no appeal), Chow J considered it necessary and in the interests of the beneficiaries of the Estate to remove Victor as the administrator of the Estate.  Chow J appointed Mr Ng Kin Yuen of Messrs. Liu, Chan and Lam as new administrator of the Estate. 

29.  Victor filed a Notice of Appeal dated 9 October 2017 against Chow J’s said Decision dated 4 September 2017.  Further, Victor applied for stay of execution of the said Decision pending appeal, which application was dismissed by Chow J on 23 January 2018.

30.  Victor has not taken any other steps in relation to his appeal against Chow J’s Decision dated 4 September 2017.  Tony deposed in his affirmation that on 12 April 2019 his solicitors enquired with Victor’s solicitors regarding the progress of such appeal.  Victor’s solicitors indicated that they had received no further instructions from Victor in relation to such appeal.

III.  First Ground: Lack of Locus Standi

31.  The first ground in the application under the Striking Out Summons is that Victor lacked the locus standi to proceed with the appeal since he had been removed as administrator of the Estate.

32.  HCA 4713/2001 was commenced by Victor in his capacity as the administrator of the Estate.  Also, as regards the present appeal, Victor purported to file and serve the Notice of Appeal and the Notice of Setting Down an Appeal as the administrator of the Estate.

33.  Actually, before Victor filed the Notice of Appeal on 13 December 2017, Victor had been removed as the administrator of the Estate by Chow J’s Decision dated 4 September 2017 in HCA 1974/2015.  Mr Ng Kin Yuen has become the administrator of the Estate in his stead. 

34.  In light of this, Mr Alan Yung, counsel for Tony, submitted that Victor, being only a beneficiary of the Estate, does not have locus standi to proceed with the present appeal.  He relied on Re the Estate of Luk Kim Ying [2008] HKLRD 743 at [22], where Poon J (as he then was) stated that:

“ … in the absence of a grant, a purported beneficiary such as the plaintiff simply does not have the locus to sue on behalf of the estate. For 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.”

35.  The principle in Ingall v Moran (cited in Re the Estate of Luk Kim Ying) was also considered in Millburn-Snell v Evans [2012] 1 WLR 41 at [16], in which the English Court of Appeal described as “clear law” that “an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity”.

36.  This line of authorities was followed in Wong Lai Mei v Kwong Pak Leung [2015] 1 HKLRD 888. In that case, the plaintiff brought proceedings against the defendant purportedly as the intended administratrix of the deceased’s estate without obtaining a grant of letters of administration.  Recorder Pow SC considered Millburn-Snell v Evans (at [17]) and held that “the bringing of the action and the filing of the Writ in the present case was a nullity ab initio.  As Scott LJ said in Ingall, this action was born dead and could not be revived” (at [23]).

37.  We agree that it is trite that a beneficiary cannot purport to sue on behalf of an estate unless and until that person is granted the letter of administration.  Although Victor had been appointed as the administrator of the Estate on 24 March 1999, he was removed from such appointment on 4 September 2017.  Thus, he did not and does not have the capacity to file and serve the Notice of Appeal or to proceed with the appeal on behalf of the Estate. 

38.  Upon Victor’s removal, only the incumbent administrator of the Estate (i.e. Mr Ng Kin Yuen) has the capacity to bring the present appeal on behalf of the Estate.

39.  Victor filed the Notice of Appeal purportedly as the administrator of the Estate when he had already been removed.  He did not bring the appeal in his personal capacity as a purported beneficiary of the estate (in which case he ought to have joined the incumbent administrator as a necessary party to the appeal). 

40.  In the circumstances, the appeal was a nullity and ought to be struck out. 

41.  Further, the incumbent administrator Mr Ng Kin Yuen has no intention to prosecute the appeal in place of Victor. Tony’s solicitors wrote to Mr Ng to ascertain his stance with respect to Tony’s intended application to dismiss the application with costs.  After several rounds of correspondence, Mr Ng through his solicitors replied by a letter dated 16 January 2020 that:

“ Being the court appointed Independent Administrator of the estate of Lam Tim, deceased, our client does not have personal knowledge regarding the disputes in HCA 1885/1987 and HCA 4713/2001. In light of the fact that both your clients are involved in HCA 1885/1987, HCA 4713/2001 and CACV 238/2017 [sic], they are in a better position with the necessary and relevant knowledge, information and evidence.

In the circumstances, our client has no intention to join in CACV 238/2017 [sic] at this stage unless so directed by the Court.  This would save the costs of the estate.  Further, our client shall apply for a Beddoe Order if he is required to join in these proceedings.”

42.  In light of such reply, Mr Ng clearly has no intention to prosecute the appeal as the administrator of the Estate.

43.  In the circumstances, we conclude that on this ground alone, the Notice of Appeal should be struck out and the appeal should be dismissed.

IV.  Second Ground: Want of Prosecution

44.  The second ground relied on by Tony is that Victor has no intention to proceed with the appeal and that the appeal should be struck out for want of prosecution.

45.  It is trite that this court has inherent jurisdiction to strike out a Notice of Appeal on the basis of abuse of process.  Want of prosecution is one of such abuses.  Whether there is such an abuse to warrant striking out must of course be looked at in all the circumstances of the case. See: Joyful Sparkle Co Ltd v Ng Pik Chu CACV 102/2012 (unreported, 20 November 2013) at [45]-[46].

46.  In Liquidators of Wing Fai v Yip Kwong Robert (2011) 14 HKCFAR 935, Ma CJ examined at some length the relevant principles governing striking out on the basis of abuse of process. At [75] of the judgment, the learned Chief Justice addressed striking out for want of prosecution, in particular at sub-para (4) had this to say regarding abuse in the form of warehousing a process:

“ … In order for the ‘warehousing’ of claims to justify striking out, it must be clear that the plaintiff is abusing the process of the court. Accordingly, where the ‘warehousing’ of claims indicates that there is simply no intention to bring proceedings to a conclusion or there is a ‘wholesale disregard’ of the rules or court orders, abuse can be found to exist …”

47.  For the following reasons, we are satisfied that Victor has no intention to prosecute the appeal to its fruition and the continuation of the appeal amounted to an abuse of process.

48.  First, there have been more than 2.5 years of inaction since the Notice of Appeal was filed and the Notice of Setting Down an Appeal was served on 13 December 2017.  No explanation was provided by Victor (who filed neither affidavit in opposition nor written submissions) at all for his inaction. 

49.  Second, Victor clearly does not have a genuine intention to pursue the appeal to an end, in light of the following:

(a)  After the filing of the Notice of Appeal and the Notice of Setting Down an Appeal on 13 December 2017, Victor has not proceeded with the present appeal.

(b)  On 12 April 2019, Tony’s solicitors made a telephone enquiry with Victor’s solicitors, who said that they had received no further instructions from Victor regarding the present appeal. 

(c)  On 16 December 2019, Tony’s solicitors further wrote to Victor’s solicitors and asked whether Victor would agree to an order that the appeal be dismissed with costs to Tony.  No response has been given by Victor or his solicitors at all. 

(d)  Even after being served with the Striking Out Summons, the supporting affirmation and the directions on 14 April 2020 by the RCA, Victor failed to file any affidavit or submissions in opposition.

(e)  Despite further directions by the RCA on 8 June 2020, Victor failed to file any written submissions whether by the stipulated deadline or at all.

50.  If Victor had any genuine intention to pursue the appeal to an end, he would have taken steps to, at the very least, oppose the Striking Out Summons in accordance with the directions of the RCA.  Victor has not done so.  In such circumstances, there is no question that Victor does not intend to pursue the appeal at all.

51.  In light of the above, not only did Victor fail to prosecute the appeal diligently and expeditiously but he has also manifested an intention not to proceed with the appeal at all.

52.  Mr Yung further submits that Victor has, by way of this appeal, stalled Tony’s enforcement of Wilson Chan J’s Judgment and the costs order made in Tony’s favour and hence Tony has suffered prejudice.  This adds to the factors which this court takes into account in the exercise of the discretion to strike out the Notice of Appeal and dismiss the present appeal.

53.  Having considered the circumstances of the present case, we are satisfied that the Notice of Appeal should also be struck out, and the appeal be dismissed, for want of prosecution.

V.  Conclusion

54.  For these reasons, we order that the Notice of Appeal be struck out and the appeal be dismissed with costs to Tony, such costs are to be taxed if not agreed.

55.  As Victor had no capacity to commence the appeal proceedings on behalf of the Estate, Victor should personally pay Tony’s costs, and bear his own costs, without recourse to the Estate.