CHANG SHUN TAK v. LEUNG SUN FAT AND OTHERS

HCA13809/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13809 OF 1997

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REASONS FOR RULING

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1. This is an appeal by the plaintiff against the order of Master Kwan made on 6 November 2000, whereby the master ordered that the plaintiff do supply the 2nd defendant with further and better particulars in respect of paragraph 2B of the plaintiff's Amended Statement of Claim pursuant to the 2nd defendant's Request for Further and Better Particulars dated 31 July 2000. After hearing the parties in submission, I had dismissed the plaintiff's appeal with costs. I now give my reasons for so doing.

The facts

2. The plaintiff's action is for trespass to land against all defendants in respect of a number of pieces of land in the New Territories. Against all of these defendants, the plaintiff is asking for an order for vacant possession of all the land, the subject matter of his claim, as well as for mesne profits and/or damages to be assessed. Two of the pieces of land concerned are Lot Nos.1323A and 1323B in D.D.117 ("the said two Lots). It is pleaded by the plaintiff that the plaintiff is, and was, the sole equitable and/or beneficial owner of the said two Lots and that, at all material times, one Mr Kisaku Mori ("Mori Senior") is, and was, the sole legal and registered owner of the said two Lots and held them on trust for and/or on behalf of the plaintiff. It was also pleaded that in about 1977, when Mori Senior passed away, "all his legal title and/or interest in (the said two Lots) were passed to his son, Mr Kimio Mori ("Mori Junior")". It was further pleaded by the plaintiff that since then, Mori Junior has held all the legal title and/or interest in the said two Lots on trust for and/or on behalf of the plaintiff.

3. To the plaintiff's claim, the 2nd defendant's defence is that he had acquired title to (inter alia) the said two Lots through adverse possession and has counterclaimed for a declaration to that effect.

4. The above pleadings by the plaintiff in his Amended Statement of Claim then drew from the 2nd defendant a Request for Further and Better Particulars in relation to the passing of legal title from Mori Senior to Mori Junior, and such request asked the plaintiff to state as follows :-

(a) The basis of his contending that the legal title and/or interest of Mori Senior in the said two Lots were passed to Mori Junior.

(b) The way by and manner in which the legal title and/or interest of Mori Senior in the said two Lots were allegedly passed to Mori Junior.

(c) Whether Mori Junior was and/or is the beneficiary of the legal title and/or interest in the said two Lots. If so, the way by and manner in which Mori Junior became beneficiary of and succeeded to such legal title and/or interest in the said two Lots.

(d) Whether Mori Junior was and/or is the personal representative of the estate of Mori Senior. If so, the way by and manner in which Mori Junior became the personal representative of the estate of Mori Senior, and identified the grant or other documents whereby Mori Junior became appointed the personal representative of the estate of Mori Senior.

5. Pursuant to the request for particulars by the 2nd defendant, the plaintiff's solicitors, by letter of 30 August 2000, wrote to the solicitors for the 2nd defendant, enclosing therewith a copy of a Letter of Attorney together with English translation which states that Mori Junior is the beneficiary of the said two Lots. The full terms of the Letter of Attorney, the original of which is in Japanese but which has been translated into English and certified, is as follows :-

"WE JOINTLY ATTEST

THAT KIMIO MORI IS THE BENEFICIARY TO THE ESTATE OF LATE KISAKU MORI WHICH CONSISTS OF THE LANDED PROPERTIES IN HONG KONG, KNOWN AS LOT NO.1323A AND LOT NO.1323B, BOTH IN D.D. YUEN LONG (THEN SAID LANDED PROPERTIES).

THAT KIMIO MORI CONSIGNS THE POWER TO CHANG SHUN TAK (HONG KONG ID NO.XXXXXXX(X)) TO ACT ON HIS BEHALF FOR THE ENFORCEMENT OF ALL THE CLAIMS AGAINST THE PRESENT, UNLAWFUL OCCUPANTS OF THE SAID LANDED PROPERTIES WHICH IS REGISTERED IN KISAKU MORI AND HAS BEEN DEVISED AND BEQUEATHED TO KIMIO MORI IN HONG KONG."

This document is then attested to by a Japanese attorney at law, Mori Junior, a Japanese notary public as well as the translator of this document.

The plaintiff's appeal

6. In bringing this appeal from the order of the master, the plaintiff submits that Item 1 of the request has been answered by the solicitors' letter dated 30 August disclosing the Letter of Attorney, which states that Mori Junior was the beneficiary of the estate of Mori Senior and that the said two Lots in the estate of Mori Senior had been devised to Mori Junior, which is the basis of the plaintiff's claim that the legal title of the said two Lots had passed from Mori Senior to Mori Junior.

7. As for Item 2 of the request, the plaintiff submits that it is irrelevant since the case which the 2nd defendant has to meet is simply that the plaintiff is the equitable owner of the said two Lots. How the legal title passed from Mori Senior to Mori Junior consequent to the said device (whether by way of assent or by deed of assignment) has no bearing on the case that the 2nd defendant has to meet. Therefore, the manner in which legal title passed from Mori Senior to Mori Junior is wholly immaterial.

8. As for the third item of request, the plaintiff submits that the first part of that request has already been answered by the Letter of Attorney which states that Mori Junior is the beneficiary of the estate of Mori Senior of which the said two Lots forms a part of. As for the second part of the third item of request, the plaintiff submits that the way and the manner in which Mori Junior succeeded to the legal title of the said two Lots (i.e. whether by will or upon intestacy) is, again, immaterial and irrelevant to the action as long as Mori Junior is the beneficiary of the estate of Mori Senior, nor can that affect the plaintiff's case which is that the plaintiff is the beneficial or equitable owner of the said two Lots.

9. As for Item 4 of the request, the plaintiff submits that, too, is irrelevant and immaterial. It is irrelevant and immaterial whether Mori Junior holds the legal title of the said two Lots as personal representative or as beneficiary of the estate of Mori Senior for in either case he holds the same in trust for the plaintiff.

The defendant's contention

10. The first point made by the 2nd defendant is that even on the basis of the plaintiff's claim, namely, that the plaintiff is the equitable or beneficial owner of the said two Lots, the plaintiff has no right, having only the equitable title, to bring these proceedings without joining the person who holds the legal title to the said two Lots. In this respect, I was referred to Order 15, rule 14 of the Hong Kong White Book and the footnote thereunder. Using that point as a springboard, the 2nd defendant further submits that as the pleadings stand in the form that it is pleaded in the Amended Statement of Claim, it is unclear as to who is in fact the trustee of the said two Lots for whilst paragraph 2A pleads that Mori Senior still "is" the legal and registered owner of the said two Lots, paragraph 2B pleads that upon the death of Mori Senior in 1977, all his legal title and/or interest in the said two Lots were passed to Mori Junior.

11. Counsel for the 2nd defendant points out that as a matter of law the trusteeship of Mori Senior would devolve upon his death to his personal representative under section 20 of the Trustee Ordinance, Cap.29. It is therefore unclear in paragraph 2B of the Amended Statement of Claim how it is that the legal title of the said two Lots "were passed" to Mori Junior upon the death of Mori Senior in 1977 - whether or not it devolved to Mori Junior as the personal representative of the estate of Mori Senior. This confusion arises because the contents of the Letter of Attorney relied on by the plaintiff seem to suggest that Mori Junior was a beneficiary (as opposed to a personal representative) to the estate of Mori Senior and that the said two Lots were devised and bequeathed to him by Mori Senior.

12. As such, in order for the 2nd defendant to know the case that they have to meet, the 2nd defendant needs to know whether the plaintiff's case is on the footing that Mori Junior became trustee by reason of the fact that he was the personal representative of the estate of Mori Senior and, if so, how he became appointed. Or if the plaintiff's case is that Mori Junior became the legal owner of the said two Lots by reason of the fact that he was the beneficiary to the estate of Mori Senior, whether that was by way of a grant or by way of an intestacy. In this connection, the 2nd defendant further makes the point that the legal title of the said two Lots could not have vested in Mori Junior merely because he was the beneficiary of the estate of Mori Senior but that until an assent or conveyance is put through, a beneficiary has only an inchoate right thereto. The legal title to the said two Lots could only have been passed to a beneficiary by way of an assent or by way of conveyance. That, therefore, is a further reason for which the 2nd defendant should be entitled to the particulars sought.

13. Lastly, it was submitted by the 2nd defendant that quite apart from his entitlement to such particulars in order to meet the case of the plaintiff, the 2nd defendant is also entitled to these particulars so as to know who is the proper trustee (on the basis of the case put forward by the plaintiff) to be joined as a party to these proceedings.

Decision

14. Having heard the parties in submissions, I had no hesitation in accepting all the submissions made by counsel for the 2nd defendant. It would of course be necessary for the 2nd defendant to join in the proper trustee, if that be the case, so that any declaration which he may obtain, by way of his counterclaim, would be binding upon the trustee as the legal owner of the land as well. In its present form, without the trustees being a party to this action, any declaration obtained by the 2nd defendant on his counterclaim would not be binding on the trustees or the legal owners thereof.

15. I also note from the contents of the Letter of Attorney, in particular, the 2nd paragraph of it, it appears that Mori Junior is empowering the plaintiff to bring these proceedings on his behalf rather than as the equitable owner of the said two Lots. Nor is it plaintiff's case that these proceedings are brought by the plaintiff as the agent or the attorney of Mori Junior.

16. In my view, that is a further reason for the particulars being ordered against the plaintiff for unless and until such particulars are furnished by the plaintiff, the 2nd defendant cannot know with precision what is the case that they have to meet and who is in fact the trustee or the legal owner of the said two Lots.