INCORPORATED OWNERS OF MILLION FORTUNE INDUSTRIAL CENTRE v. JIKAN DEVELOPMENT LTD

HCA 14915/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 14915 OF 1998

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J U D G M E N T

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1. These Garnishee proceedings arise out of a judgment obtained by the Plaintiff, the Incorporated Owners of Million Fortune Industrial Centre ("the Judgment Creditor") against Jikan Development Limited ("the 1st Judgment Debtor") and Plotio Property and Management Company Limited ("the 2nd Judgment Debtor"). On 9 February 2001, the 1st and 2nd Judgment Debtors were adjudged jointly and severally liable to the Plaintiff in the sum of HK$3,531,301.25, together with interest at the judgment rate from 17 September 1998 until payment. By consent, it was further adjudged that the 1st Judgment Debtor do indemnify the 2nd Judgment Debtor in respect of all loss and damage arising from and in connection with the Plaintiff's claim inclusive of interest. The proceedings, both before and after judgment, have spiralled to such an extent that the costs incurred by the Plaintiff and the 2nd Judgment Debtor are all out of proportion to the amount of the judgment debt. This litigation has given rise, inter alia, to two appeals to the Court of Appeal and a pending appeal to the Court of Final Appeal. In the course of my review of the papers in connection with this matter, I came across an affirmation which was described as the 33rd affirmation of the deponent in these proceedings. Clearly, commercial prudence has little relevance to either of the parties involved in this litigation. One wonders whether such extensive use of the Court's resources, as has been enjoyed by the parties to this litigation, would have been permitted if a case management system had been in place for these proceedings.

2. The matter came before me on 4 February 2003 under three Amended Garnishee Orders to show cause against the Hang Seng Bank Limited ("Hang Seng Bank") made on 4 April 2001, the Wing Lung Bank Limited ("Wing Lung Bank") made on 9 April 2001, and the Yien Yieh Commercial Bank Limited ("Yien Yieh Commercial Bank") made on 9 April 2001. The said Orders attached the debts due or accruing due from the named Garnishees to the 2nd Judgment Debtor, and directed the Garnishee to attend before the Master on the application by the Judgment Creditor for a Garnishee Order Absolute.

3. Hang Seng Bank responded to the Garnishee Order to show cause by its Senior Administrative Officer, Mr. So Chun Sing, deposing on affidavit sworn on 26 April 2001 that at the time of service of the Garnishee Order to show cause on 17 April 2001, the 2nd Judgment Debtor maintained the following accounts with the Garnishee:

Account Nos.	In the Name of	Nature	Balance
(1) 262-125826-001	Plotio Property and Management Company Limited	Current	HKD60,522.11 (Cr)
(2) 280-3-437124	Plotio Property and Management Company Limited - (Golden Villa)	Savings	HKD555,406.49 (Cr)
(3) 280-5-445091	Plotio Property and Management Company Limited - (Fortune Court)	Savings	HKD293,711.80 (Cr)
(4) 280-7-442674	Plotio Property and Management Company Limited - (Goodview Industrial Building)	Savings	HKD509,184.40 (Cr)
(5) 262-125826-002	Plotio Property and Management Company Limited - (Golden Villa)	Current	HKD72,314.08 (Cr)
(6) 262-125826-003	Plotio Property and Management Company Limited - (Goodview Industrial Building)	Current	HKD108,484.40 (Cr)
(7) 262-125826-004	Plotio Property and Management Company Limited - (Fortune Court)	Current	HKD36,623.30 (Cr)

4. Further, Mr. So deposed to the belief of the Garnishee that Account Nos. (2) to (7) were opened in accordance with the requirement of Schedule 7 of the Building Management Ordinance and that the funds in those accounts were used exclusively for the management of the respective buildings.

5. Solicitors acting for Wing Lung Bank responded to the Garnishee Order Nisi by writing to the Plaintiff's solicitors on 5 May 2001 that the 2nd Judgment Debtor maintained with their client the following accounts:

Account No.	Nature of Account	Balance as at 17-04-01
(8) 020-606-201-0588-0	HKD Savings	HKD3,414.95
(9) 020-606-202-2608-7	HKD Savings	HKD473,609.13
(10) 06-413-8052-9	Fixed Deposit	HKD106,200.00

6. In addition, the 2nd Judgment Debtor maintained another account with Wing Lung Bank, Account No.020-606-000-402-2, a current account which was overdrawn at the material time and which has been described as Account No. (11) in these proceedings. As this account was overdrawn at the material time, it was common ground that I should discharge the Garnishee Order Nisi made on 9 April 2001 insofar as that order applied to this account, and I so order.

7. Solicitors acting for Yien Yieh Commercial Bank responded to the Garnishee Order Nisi to show cause by writing to the Plaintiff's solicitors on 12 May 2001 that the 2nd Judgment Debtor maintained a credit balance of HKD635,127.50 with their client as at 17 April 2001. The letter did not contain particulars of the Accounts held by the 2nd Judgment Debtor but there is no dispute that at the material time there was an overdrawn current account, No. 014-676-0-010634-9, which, for convenience, has been identified as Account No. (12), and that the credit balance of HKD635,127.50 was arrived at by deducting the overdrawn balance standing in Account No. (12) from the value of two fixed deposits held by the bank.

8. The Garnishee Orders to show cause against these banks prompted a response from the 2nd Judgment Debtor in the form of the 1st, 2nd and 3rd Affirmations of Mr. Lai Chi Kin, the Senior Manager of the 2nd Judgment Debtor, made respectively on 21 May 2001, 28 May 2001 and 28 May 2001. By the said affirmations, Mr. Lai Chi Kin, on behalf of the 2nd Judgment Debtor, objected to the Garnishee Orders and sought their discharge on the grounds that the funds deposited with the three banks were not beneficially owned by the 2nd Judgment Debtor but were monies held by the 2nd Judgment Debtor as trustee and agent for its clients, namely, owners of properties managed by the 2nd Judgment Debtor. As regards the accounts opened at Hang Seng Bank Limited, monies in those accounts were all trust monies, Accounts Nos. (2) to (7) being used exclusively for the management of the respective Buildings identified with each respective account, whereas Account No. (1) was also trust monies held for the 64 Buildings identified in a schedule to the affirmation. As regards the accounts with Wing Lung Bank, Account No. (8) being a savings account with a credit balance of HKD3,414.95, was said to be trust monies held for the owners of 64 Buildings managed by the 2nd Judgment Debtor as listed in the schedule to the affirmation, whereas Account No. (9), another savings account, was trust money belonging to the Incorporated Owners of Ka Wai Building and Account No. (10), a Fixed Deposit Account, was trust money belonging to the owners of Hing Wong Building. In connection with the Yien Yieh Commercial Bank credit balance of HKD635,127.50, Mr. Lai stated that the monies were trust monies belonging to the owners of 64 Buildings listed in the schedule annexed to his affirmation.

9. The Judgment Creditor took issue with these contentions and filed and served the 15th Affirmation of Mr. Ho Pak Ming made on 6 June 2001 contesting the assertions that the accounts were trust monies. This prompted a response from the 2nd Judgment Debtor in the form of the 4th Affirmation of Mr. Lai Chi Kin made on 15 June 2001 to which Mr. Lai exhibited a sample pay-in slip to prove that certain management fees had been paid into one of the accounts in question. He did so in support of the 2nd Judgment Debtor's case that the monies paid into the accounts were all trust monies.

10. The matter came before Master de Souza on 20 June 2001. He directed that an enquiry be conducted into the accounts in question to determine the status of the monies therein. Subsequently, on 9 September 2002, Master Kwong directed that one day be reserved for the hearing of the enquiry and gave further directions for the filing of affirmations, and of affirmations in reply. Whether or not served pursuant to these further directions, I had before me, in addition to the affirmations already mentioned, the 8th affirmation of Mr. Lai Chi Kin made on 8 October 2002, the 2nd affirmation of Mr. Lai Chi Kin (on appeal) made on 30 October 2002, the affirmation of Mr. Lai Yiu Keung, a director of the 2nd Judgment Debtor, made on 9 December 2002, and the 30th affirmation of Mr. Ho Pak Ming, the solicitor having the conduct of this case on behalf of the Plaintiff, made on 21 December 2002. The exhibits to these affirmations take up three large lever arch files.

11. In addition, I was provided with the transcript of the oral examination under Order 48, RHC of Mr. Lai Yiu Keung, the director of the 2nd Judgment Debtor, and Mr. Choy Mun Kee, the Financial Controller of the 2nd Judgment Debtor, which had taken place on 28 October 2002, and 21 and 22 January 2003, before Master Kwang and which had been adjourned sine die with liberty to restore. That examination had not been completed by the time this matter came before me. I was also provided with the 1st affirmation of Mr. Choy Mun Kee made on 27 January 2003 pursuant to a Consent Order made by Master Kwang on 22 January 2003 in connection with the oral examination.

12. In the course of the hearing before me there was also admitted into evidence copy Deeds of Mutual Covenants in respect of the properties managed by the 2nd Judgment Debtor, which took up an additional three large lever arch files. I also received into evidence the 2nd affirmation of Mr. Choy Mun Kee, made on 6 February 2003 in connection with the oral examination, and his 2nd Affirmation made on 17 February 2003 in connection with the Garnishee proceedings.

13. The hearing before me on 4 February 2003 commenced with an application on behalf of the Incorporated Owners of Golden Villa and Ka Wai Court to intervene in the proceedings. I dismissed that application on the ground that the evidence in support of their assertions, that the monies in the relevant bank accounts were trust monies belonging to them, had already been placed before me by the 2nd Judgment Debtor and that in the absence of additional relevant evidence (and there was none identified to me), I could see little benefit from their intervention. On that basis, I exercised my discretion to decline their application. I did, however, indicate to Mr. Cheung, the solicitor acting on their behalf, that he could continue to be present at the hearing on a watching brief.

14. The substantive hearing then continued before me at which point I was informed that the parties did not seek to cross-examine any deponent and that I should determine the matter on the affidavit and documentary evidence placed before me. I then heard submissions from Mr. Earnest Cheung, counsel for the Plaintiff, who completed his submissions on the resumed hearing on 17 February 2003, and from Ms. Jane Lo, counsel for the 2nd Judgment Debtor.

15. The 2nd Judgment Debtor is a manager of a number of properties in Hong Kong. By Section 34E of the Building Management Ordinance, Cap.344, the provisions in the Seventh Schedule thereto have been impliedly incorporated into every Deed of Mutual Covenant. Clause 3 to the Seventh Schedule provides as follows:

"3. Manager to maintain bank account

(1) The manager shall maintain an interest-bearing account and shall use that account exclusively in respect of the management of the building.

(2) Subject to subparagraphs (3) and (4), the manager shall without delay pay all money received by him in respect of the management of the building into the account maintained under subparagraph (1).

(3) Subject to subparagraph (4), the manager may, out of money received by him in respect of the management of the building, retain or pay into a current account a reasonable amount to cover expenditure of a minor nature, but that amount shall not exceed such figure as is determined from time to time by a resolution of the owners' committee (if any).

(4) The retention of a reasonable amount of money under subparagraph (3) or the payment of that amount into a current account in accordance with that subparagraph and any other arrangement for dealing with money received by the manager shall be subject to such conditions as may be approved by a resolution of the owners' committee (if any).

(5) Any reference in this paragraph to an account is a reference to an account opened with a bank within the meaning of section 2 of the Banking Ordinance (Cap.155), the title of which refers to the management of the building."

16. My attention was also drawn to Clause 4 of the Seventh Schedule in relation to the maintenance of a special fund by the manager to provide for unexpected expenditure.

17. Having had regard to these provisions, the identification of the buildings in question in Accounts Nos. (2) to (7) maintained with Hang Seng Bank, and the belief of Hang Seng Bank that those accounts were opened in accordance with the requirement of Schedule 7 and that the funds in those Accounts were used exclusively for management of the respective Buildings, I indicated to Mr. Cheung at the outset that he would face an uphill battle and might even meet with an adverse costs order if his client maintained that I should make a Garnishee Order Absolute in respect of the amounts in Accounts Nos. (2) to (7) with Hang Seng Bank. Mr. Cheung then indicated to me, wisely, in my view, that he would not press the point.

18. Having regard to the provisions of the Building Management Ordinance and all the evidence before me, I have little difficulty in concluding that the monies in Accounts Nos. (2) to (7) are trust monies beneficially owned by the Incorporated Owners of Golden Villa, Fortune Court, and Goodview Industrial Building. I therefore discharge the Garnishee Order Nisi made on 4 April 2001 insofar as that Order applies to those Accounts. My conclusion that the funds in Accounts Nos. (2) to (7) are funds held in trust for the Incorporated Owners of Golden Villa, Fortune Court, and Goodview Industrial Building respectively is buttressed by the provisions in the Deeds of Mutual Covenants governing these three buildings which empower the manager to collect monies payable by the owners and direct that the moneys so collected be used to pay all outgoings relating to the management of the Buildings (in respect of Golden Villa, the provisions appear at pp.95, 100 and 113-114 of the Bundle marked as DMC I, in respect of Fortune Court, the provisions appear at pp.76-77 of DMC I (see, in particular, Clause 11(a) deeming the manager to be the trustee in respect of moneys and deposits collected), and in respect of Goodview Industrial Building, the provisions appear at pp.159-160 of DMC I). In this connection, I agree with the submissions of Ms. Lo, on behalf of the 2nd Judgment Debtor, that these provisions create either a Quistclose trust in respect of funds received by the 2nd Judgment Debtor from the owners of the Buildings concerned as managers thereof, or trusts which were analogous to Quistclose trusts, such as was created in Typhoon 8 Research Ltd. v. Seapower Resources International Ltd. (CACV 2980 of 2001, 30 July 2002, CA) in respect of a deposit held by a landlord from its tenant which it had covenanted to hold throughout the tenancy of the lease, and to deduct therefrom for specific purposes only and, subject thereto, to refund the deposit to the tenant.

19. Similar provisions can be found in the Deeds of Mutual Covenant in respect of Ka Wai Building (at pp.413, 419, 432 and 433 of DMC II) and in respect of Hing Wong Building (at pp.283 and 300 of DMC I).

20. It is convenient at this stage to mention Account No. (10) in respect of Hing Wong Building. This was a fixed deposit in the sum of HKD106,200 kept with Wing Lung Bank. Late in the day, the 2nd affirmation of Mr. Choy Mun Kee was received into evidence when Mr. Cheung for the Plaintiff, very sensibly in my view, did not object to its production. In that affirmation made on 17 February 2003, Mr. Choy, the Financial Controller of the 2nd Judgment Debtor, deposed to the fact that the Fixed Deposit Account No. (10) was created from management monies received from the owners of Hing Wong Building and that the principal sum of HKD106,200 had remained unchanged since the creation of the deposit. The fixed deposit was renewed automatically upon expiry and, on renewal, a new deposit confirmation would be issued by Wing Lung Bank for the principal sum whilst the interest earned upon the maturity of the preceding deposit would be deposited to the current account, Account No. (11). As stated above, this account was overdrawn at the time the Garnishee Orders to show cause were made. In the light of this new evidence, Mr. Cheung, again very sensibly in my view, confirmed that he would not be pursuing a Garnishee Order Absolute in respect of Account No. (10). I therefore also discharge the Garnishee Order to show cause made on 9 April 2001 insofar as it purports to attach on Account No. (10). I do so notwithstanding that Account No. (10) has not been specifically described as being held for the Incorporated Owners of Hing Wong Building, unlike Accounts Nos. (2) to (7) which bear the names of the buildings concerned.

21. Account No. (9) with Wing Lung Bank is a savings account which was in credit in the sum of HKD473,609.13 at the time of service of the Garnishee Order to show cause on 17 April 2001. In respect of this account, Mr. Cheung invited me to order that the credit balance in the savings account be paid into Court pending further enquiry. He did so upon the submission that just because the monies in this account might be trust monies, I should not be satisfied on a balance of probabilities that they were trust monies and that I should not rely on the bare assertions of the 2nd Judgment Debtor that the funds in Account No. (9) came from the owners of Ka Wai Building. In the absence of evidence to the contrary, and absent any cross-examination of Mr. Lai Chi Kin on these assertions, I see no reason why I should not accept that evidence and I find that the monies in Account No. (9) did indeed come from the various owners of Ka Wai Building. There has been more than enough enquiry on the issue. If the Judgment Creditor was seriously challenging the assertions of Mr. Lai Chi Kin in his 2nd Affirmation made on 28 May 2001 (at A24), that the money in Account No.9 was trust money belonging to the Incorporated Owners of Ka Wai Building, the Judgment Creditor could have applied to cross-examine Mr. Lai. The Judgment Creditor did not do so. Furthermore, even if I had not been satisfied on a balance of probabilities that the funds in Account No. (9) came from the Incorporated Owners of Ka Wai Building, I would have exercised my discretion against making a Garnishee Order Absolute in respect of that account given the substantial risk that a Garnishee Order Absolute might interfere with the proprietary rights of the Incorporated Owners of Ka Wai Building. I therefore also discharge the Garnishee Order to show cause made on 9 April 2001 insofar as it purports to attach on Account No. (9).

22. Having dealt with what I may justly call the preliminaries, I turn to the accounts which are the subject of greater dispute, namely, Account Nos. (1), (8) and (12), the so-called "grouped accounts" allegedly belonging to the owners of the 64 buildings listed in the schedule to the affirmations of Mr. Lai Chi Kin, the Senior Manager of the 2nd Judgment Debtor.

23. As Mr. Cheung has rightly contended, this assertion is fraught with inconsistency. Initially, the 2nd Judgment Debtor contended that the monies in Account Nos. (1) [A14-15, A18-20], (8) [A27-29] and (12) [A32-33, A36-38] were held on trust for the owners of the 64 buildings. Later it contended that the monies in Account Nos. (1) and (12) were held on trust for the owners of 46 buildings and not 64 buildings as previously contended and that the monies in Account No. (8) was not held in trust but belonged to itself [A70, A72-3, A78]. Comparing the list of 64 buildings [A18-20] with the list of 46 buildings [A70], one notes that Hing Wong Building and Golden Villa (which have their own bank accounts) appear in both lists, and that 8 buildings listed in the list of 46 buildings do not appear in the earlier list of 64 buildings. Subsequently, the 2nd Judgment Debtor changed its version once again and contended that the monies in all 3 accounts were trust monies [A85-86].

24. The 2nd Judgment Debtor is a member of large group of companies and it received rental income [C113-115] and manager's remuneration [B68, C125]. It remitted money to and received money from other companies in the Plotio Group. Its financial statements revealed substantial bank balances and cash [B740, B752]. Mr. Cheung made the cogent submission that the parties' treatment of the monies paid was an important indication as to whether or not the monies were impressed with a trust. The 2nd Judgment Debtor's own evidence clearly showed that it had all along treated the monies in Account Nos. (1), (8) and (12) as its own money. The 2nd Judgment Debtor's financial statements [A733-746, A750-752] did not indicate that the bank deposits and bank balances were monies held on trust. In addition:

(a) The 2nd Judgment Debtor's director, Mr. Lai Yiu Keung, admitted in the course of the Order 48 examination that very substantial amounts in Account Nos. (11) and (12) belonged to the 2nd Judgment Debtor [A160-3] and that the 2nd Judgment Debtor treated the monies in those bank accounts as a part of its normal cash flow and which were transferred among companies of the Plotio Group as internal resources of the Group [generally: at A170-172; in relation to Account No. (1): at A181-184; and in relation to Account No. (12): at A165-170].

(b) The 2nd Judgment Debtor's use of the monies in the various bank accounts was not restricted to purposes connected with building management. It paid substantial sums from Account Nos. (1), (11) and (12) to its director [B566 and A161, B141, B148], made advances to other companies within the Plotio Group [B96, B117, B126, B138, B143, B164] and used these accounts for inter-company fund transfers within the Plotio Group [A165-169, A169-172].

(c) In the audited financial statements, the 2nd Defendant described the bank deposits and cash in banks as its assets [A195-196].

(d) The 2nd Judgment Debtor pledged the deposits in the bank accounts to procure overdraft facilities, which were used for payment to other companies within the Plotio Group.

(e) Where management fee payments were outstanding from owners of buildings, the 2nd Judgment Debtor treated them as its debtors [as can be seen from the audited accounts at C70, from the building account balances at C80, from the explanation from the director of the 2nd Judgment Debtor, at A140 to 143, that debit balances in the building accounts denoted outstanding management fees, and, at A144, that the owners of these buildings were the 2nd Judgment Debtor's debtors].

(f) Where credit balances were maintained in the ledger accounts of the buildings, the 2nd Judgment Debtor treated the owners as its creditors [B740 & C80]. Those credit balances did not match the balances in any of the bank accounts.

25. I am satisfied on the evidence before me that the factual propositions set out in the preceding paragraph are true. Mr. Cheung also made the cogent submission that, having regard to the 2nd Judgment Creditor's dealings with those accounts, that it was an extremely artificial exercise to attempt an "after the event" apportionment of the credit balances in each "grouped account" between the owners of the 46 buildings in question [A69-70, A76-78, B759]. In the case of Account No. (12), the 2nd Judgment Debtor, after combining the debit balance in this account with the balances in 2 time deposits, has artificially apportioned the net balance to the owners of the 46 buildings [A70, A76-78]. The number of buildings and the apportionment made on A76 are different from number of buildings and the apportionment made in respect of the time deposits [at C129]. Finally, the amounts allegedly belonging to each building do not tally with the balances shown on the building accounts. The 2nd Judgment Debtor dealt with the funds in these accounts as if they were its own assets. If they were not trust moneys to begin with, a subsequent apportionment exercise cannot change the character of these funds.

26. In the light of these submissions and given the small amount of the balance in Account No. (8), $3,414,95, Ms. Lo indicated that she would not resist an Order Absolute being made in respect of that account. However, she maintained that the orders nisi should be discharged for Account Nos. (1) and (12) and she countered the submissions of Mr. Cheung by reliance on the principle of "mixed substitution". She referred me to the statement of principle contained in the head note to the report of In Re English & American Insurance Co. Ltd. [1994] 1 BCLC 649, as follows:

"Where a person receives money which he was bound to keep as a separate fund and to return it to those entitled to it, then he became a trustee of that fund ... Although after the fund had been set up the parties had acted as though the [recipient] was the beneficial owner of the fund, this conduct does not affect the substance of the transaction which was that the fund was held on trust by the [recipient] for the benefit of the [payers of the moneys]."

Ms. Lo also relied on the observations of Watkins Lj in R v Clowes (No.2) [1994] 2 All ER 316 at 325j:

"... the effect of the authorities seems to be that a requirement to keep moneys separate is normally an indicator that they are impressed with a trust, and that the absence of such a requirement, if there are no other indicators of a trust, normally negatives it. The fact that a transaction contemplates the mingling of funds is, therefore, not necessarily fatal to a trust."

Accordingly, Ms Lo submitted that merely because some of the trustee's own assets might have been placed into the bank accounts, that act did not cause the trust funds therein to lose its character. As most, the mixing of the trustee's own assets with the trust assets caused a "mixed substitution", as explained by Lewin on Trusts, 17th Ed., at para. 41-49:

"There is mixed substitution when the sum standing to the credit of the bank account is not wholly attributable to payments into it from one source. That will be so if that sum is attributable in part to payments into the account of the account holder's own beneficial money and in part to money held by him in trust, or where that sum is attributable to payments into the account from different trusts."

27. Ms. Lo then relied on the Rule in Re Hallett's Estate (1880) 13 Ch D 696, expressed by Lord Jessel M.R. (at 727), on how to ascertain the amount of trust assets remaining in a running account, when such an account contained funds owned beneficially by the trustee himself:

"... Now, first upon principle, nothing can be better settled, either in our own law, or, I suppose, the law of all civilised countries, than this, that where a man does an act which may be rightfully performed, he cannot say that that act was intentionally and in fact done wrongly ... Wherever it can be done rightfully, he is not allowed to say, against the person entitled to the property or the right, that he has done it wrongfully. That is the universal law. When we come to apply that principle to the case of a trustee who has blended trust moneys with his own, it seems to me perfectly plain that he cannot be heard to say that he took away the trust money when he had a right to take away his own money."

Ms. Lo also referred to Lewin on Trusts, 17th Ed., at para. 41-54:

"... where the question is only between the beneficiary and the trustee (or other wrongdoer), the rule has been modified, and so long as withdrawals made by the trustee can be attributed to money paid by him into the account those withdrawals, if spent by him, may be attributed to the trust's own money, leaving the trust money intact. We shall call this the Hallett rule. The rule follows from the general principle that where a man does an act which may be rightfully performed, he cannot say that the act was intentionally and in fact, done wrongly; so far as possible the honest intention of drawing out his own money must be attributed to the trustee. Thus the beneficiary is able to locate the value represented by the trust money paid into the account in the credit balance remaining in the account. Note that the rule is not that withdrawals by the trustee must be attributed to the trustee's own money in priority to the trust money, but rather that the trustee cannot say that the money he withdrew was attributable to the trust money if it can be attributed to his own money."

However, as Ms, Lo conceded, and as stated in Lewin on Trusts, 17th Ed., at para.41-55, the Hallett Rule did not operate to preserve the value representing the trust money paid into the account to an extent greater than the balance in the account when withdrawals are made by the trustee after the payment in of the trust money.

28. Whilst I accept the principles relied upon by Ms. Lo, I find myself at a loss in identifying any reliable evidence supporting the contention that the funds in the 2 time deposits making up the credit balance in Account No. (12) were trust moneys to begin with. The 2 time deposits were renewed from time to time on maturity and the interest accrued on maturity was combined with the principal on the renewal of the deposits [C91]. The document at C130 showed that the 2 time deposits were reflected in the ledger of the 2nd Judgment Debtor and not in the ledgers of the individual buildings. The evidence of Mr Choy Mun Kei, the Financial Controller of the 2nd Judgment Debtor [at A192-194] was that the funds making up the deposits came from the owners of buildings managed by the 2nd Judgment Debtor, but he could not identify the buildings concerned. It was clear from the answer to the interrogatories at A76 that although the 2nd Judgment Debtor had contended, at that time, that the moneys in the 2 time deposits were trust moneys belonging to the owners of 64 buildings, Mr. Lai Chi Kin on behalf of the 2nd Judgment Debtor accepted that "it was not practically feasible" to apportion the 2 time deposits. In the absence of reliable evidence identifying the source of the funds making up the 2 time deposits, I am not satisfied that the funds in the 2 time deposits are trust moneys. I am also not satisfied that a Garnishee Order Absolute made in respect of Account No (12) would give rise to a real or substantial risk of interference with the proprietary rights of third parties. I am therefore disposed, in the exercise of my discretion, to make a Garnishee Order Absolute in respect of Account No (12) and I so order. There is also an absence of reliable evidence identifying the source of funds in Account No. (8). For the same reasons, I make the same order in respect of Account No. (8).

29. Account No. (1) is more problematical. That current account was in overdraft on 11 April 2001 so any trust moneys that might have been in the account before then had been withdrawn. Between 12 April 2001 and 17 April 2001, when the Garnishee Order nisi was served on Hang Seng Bank, a number of cash and cheque deposits had been made into the account, as well as 4 withdrawals by cheque from the account, all of which are recorded at B118-119. At the time of service of the Garnishee Order nisi, the account was in credit in the sum of $60,522.11. Ms. Lo maintains that the deposits into the accounts were management fees received by the 2nd Judgment Debtor, and that the funds in the account were trust moneys belonging to the owners of the buildings who made the deposits in question. Although Mr. Cheung rightly submitted that there was no evidence that the deposits were in fact management fees, having regard to the amount of each individual deposit, I find that they were likely to be deposits of management fees received from owners of buildings managed by the 2nd Judgment Debtor. Even so, given the way the 2nd Judgment Debtor dealt with this account and in the absence of evidence of the actual source of these deposits, I am not satisfied that the funds in Account No. (1) were trust moneys belonging to owners of buildings managed by the 2nd Judgment Debtor. However, I conclude that there is a real risk that a Garnishee Order Absolute in respect of Account No. (1) might interfere with third party proprietary rights and, in the exercise of my discretion, I decline to make a Garnishee Order Absolute against that account but order that the Garnishee Order nisi made against it be discharged.

30. For the reasons stated above, I make Garnishee Orders Absolute in respect of Account Nos. (8) and (12), and I discharge the Garnishee Orders Nisi made in respect of the other accounts, Nos. (1) to (7), and (9) to (11).

31. I make a costs order nisi of the garnishee proceedings in favour of the Judgment Creditor against the Judgment Debtor, to be taxed if not agreed, with Certificate for Counsel.

32. I cannot conclude without expressing my appreciation for the very helpful submissions I received from both Mr. Cheung and Ms. Lo.