TSUI WAI CHAU v. TSUI WAI HO

HCA 2086/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2086 OF 1999

______________________

____________

_______________

J U D G M E N T

_______________

1.  This is an application by Tsui Wai-chau, Albert – whom I will simply call Albert Tsui in this judgment – for an order that the subject matters of paragraphs 2 to 7 of my order given on 7 March 2005 be reheard in his presence.  He also applies for the distribution of some shares in HSBC comprising part of the estate of the deceased, to the beneficiaries, including himself.

2.  I will not repeat the history of the litigation and disputes between the parties in this judgment.  They are well known to the parties themselves.  Suffice it to say that on 29 November 2004, I made an order appointing HSBC Trustee (Hong Kong) Limited as administrator of the estate of the deceased person involved in the present dispute, in replacement of the two named executors in the will of the deceased, one of whom was Mr Albert Tsui.  My order was slightly amended on 8 February 2005.  Dissatisfied with my order, Mr Albert Tsui lodged an appeal from my order with the Court of Appeal.  That is CACV 382/2004.  In view of the appeal, two of the beneficiaries took out an application before this Court for directions as to whether the order under appeal should be stayed pending the appeal, and as to whether an administrator pendente lite should be appointed. 

3.  On 28 January 2005, I gave directions in writing to all parties, including Mr Albert Tsui, giving leave to all these parties to file evidence in relation to the possible appointment of an administrator pendente lite and fixing a hearing to deal with any such appointment on 7 March 2005.  My directions in writing, given through my clerk, as well as the notice of hearing were sent to all the parties at their addresses on record, including that of Mr Albert Tsui’s.  Evidence was filed pursuant to my directions and the same was also served on all the parties, including Mr Albert Tsui at his address on the court’s record.

4.  On 7 March 2005, I held a hearing in chambers.  Mr Albert Tsui did not appear.  Having heard submissions from the parties, I made an order staying my earlier order under appeal and appointing Ms Susan Liang as administratrix pendente lite, pending the outcome of the appeal or further order.  Since the making of my order, Ms Susan Liang has obtained representation of the estate as administratrix pendente lite and has taken various steps to manage the immovable properties of the estate, including the collection of rent and discharge of outgoings, as well as the upkeep of the relevant premises.

5.  Now, many months after my order, Mr Albert Tsui took out his application, the subject matter of today’s hearing, seeking, in effect, to set aside my order.  In his supporting affirmation, Mr Albert Tsui said that he was absent from Hong Kong between 27 January and 27 March 2005, he had no knowledge about my directions or the hearing on 7 March and he did not receive any of the relevant papers.  I find this to be a very lame excuse.  All the papers, including the notice of hearing, were sent to the address on record of Mr Albert Tsui in Hong Kong.  At the very least, he had made no arrangement for any alternative service address in case he should not be in Hong Kong.  No arrangement was made for the redirection of any mail sent to his address in Hong Kong to any address out of Hong Kong.  As I say, I find his explanation a very unsatisfactory one. 

6.  Moreover, even according to Mr Albert Tsui’s own case, he returned to Hong Kong on 27 March 2005.  As I said, since the making of my order, various steps have been taken by the administratrix pendente lite to manage and preserve the estate of the deceased.  The relevant papers have been sent to all beneficiaries, including Mr Albert Tsui at his Hong Kong address.  As Ms Susan Liang has pointed out in her third affirmation filed in response to today’s application, she has written to Mr Albert Tsui on more than one occasion in relation to the management of the estate in her capacity as the administratrix pendente lite appointed pursuant to my order.  Mr Albert Tsui must have been aware of her appointment and the order which made the appointment for quite some time, and yet Mr Albert Tsui did not take out any application to set aside my order, or for any rehearing, until 8 December 2005.  The delay is without excuse. 

7.  Putting delay aside, I can see no merit in the application itself.  I have already explained in a rather long ex tempore judgment, when I first made the order appointing HSBC Trustee as the administrator on 29 November 2004, why an outsider should be appointed administrator of the estate.  I will not repeat myself here.  The lodging of an appeal from my order by Mr Albert Tsui has not altered anything that I have said in my judgment relating to the need to appoint an outsider as administrator of the estate.  I remain convinced that that is the best course to take to protect the estate and the interests of the various beneficiaries of the estate.  That need is, in my judgment, not removed by the taking out of an appeal by Mr Albert Tsui. 

8.  But to cater for the possibility that the Court of Appeal might come to a different view, I entertained the suggestion for the stay of my original order and appointment of an administrator pendente lite, the scope of which would be limited to the management and preservation of the estate pending the outcome of the appeal.  In my view, that was the wisest course to take in the circumstances.  Evidence has been filed both before and after the making of that order, which has demonstrated quite clearly the need to appoint someone to manage and preserve the estate.  I will not repeat the evidence here.  In fact, I have given further directions regarding the management and preservation of the estate.  Suffice it to say that the administratrix pendente lite has been doing an excellent job which, unfortunately, has also turned out to be a difficult one, in managing and preserving the estate.  That also provides good evidence to support my order of appointing an administratrix pendente lite in the first place.  I note that although the appeal was lodged back on 18 December 2004, and despite the lapse of more than one year, no date has yet been fixed for the hearing of the appeal.  I cannot imagine what loss and damage that the estate would have suffered if no administratrix pendente lite had been appointed in March this year to preserve the estate, pending the outcome of the appeal.  As I say, I see absolutely no merit in today’s application in terms of setting aside my order.

9.  As for the distribution of the shares in HSBC, firstly, the administratrix pendente lite has no jurisdiction to do so.  Her job was and is to manage the immovable properties of the estate pending the outcome of the appeal.  Secondly, I have not been shown any or any sufficient justification for the distribution of those shares at this stage.  The estate may need assets and income to fund further actions and steps to recover its assets, including taking legal actions against those responsible for depleting the estate’s assets.  I am not satisfied that I should, at this stage, authorise the distribution of those shares in favour of the beneficiaries.  I note that apart from Mr Albert Tsui, no other beneficiaries have positively supported the application for distribution.

10.  Mr Billy Ma, representing two of the beneficiaries, has, in his written submission, mentioned the possibility of the Court granting an injunction against Mr Albert Tsui regarding his unauthorised collection of rent due to the estate.  He has also suggested seeking an account from Mr Albert Tsui in relation to the rent that he has received in the past.  These may be wise steps to take but, firstly, Mr Albert Tsui has not been given sufficient notice about any of these possible actions against him, and secondly, they are steps that should be considered by the administratrix pendente lite properly first.  Thus far, Ms Susan Liang has not made any such application.  I do not find it comfortable to deal with the matter in that way in the absence of an application by the administratrix pendente lite, which application must, of course, be supported by appropriate evidence. 

11.  To conclude, the application is dismissed.  The other parties must have the costs of this application against Mr Albert Tsui.  The costs of this application must be paid by Mr Albert Tsui to all other parties, including the administratrix pendente lite.

[Submissions on costs]

12.  As regards costs, I will make gross sum assessment in relation to the costs of Mr Ma’s clients, Ms Susan Liang - the administratrix pendente lite, as well as Madam Yu.  For Mr Ma’s costs, having heard his submissions, I would fix his costs at $6,000.00, using $4,000.00 as the hourly rate and one and a half hours as the basis for my calculation.  So to Mr Ma – $6,000.00 payable forthwith. 

13.  For Ms Liang, the administratrix pendente lite, again I use the rate of $4,000.00 per hour which is applicable to both Ms Liang and Ms Tsang, representing her at today’s hearing.  The time is one and a half hours, so also $6,000.00 payable forthwith.

14.  For Madam Yu, $300.00 for loss of income and $50.00 for travelling and miscellaneous expenses, making a total of $350.00, also payable forthwith.

15.  For all other parties concerned who have been given notice of today’s hearing, I also award costs in their favour against Mr Albert Tsui, which are payable forthwith.  But since they have not appeared at today’s hearing, I do not find it appropriate to make any gross sum assessment.  So in relation to those costs, they are to be taxed if not agreed.  There is nothing to stop these other parties waiving their entitlement as to costs.