TANG YING IP AND OTHERS v. TANG YING LOI

FAMV No. 17 of 2016

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 2016 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 36 OF 2015)

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DETERMINATION

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The Appeal Committee:

1.  Leave is granted on the following point of great general or public importance:

Where a personal representative has, in breach of fiduciary duty,used money from the estate for the purchase of a property for himself, and where proceedings are brought against him for an account of profits, in proving the causal connection between such breach of duty and the profits sought to be recovered, on what principles is such causal connection to be established?

2.  Leave is also granted on the “or otherwise” ground regarding the application of the appropriate legal test taking into account the factual matters set out in sub-paras A(2) to (5) of the Notice of Motion dated 13 April 2016, namely:

“(2) whether it is irrelevant that the personal representative came by the opportunity and made the decision to purchase the property entirely independently from his office and the breach of duty;

(3) whether it is irrelevant that the personal representative could and would in any event have completed the purchase of the property with his own resources had he not used the money from the estate;

(4) whether it is irrelevant that the personal representative had acquired a beneficial interest in the property by entering into a specifically enforceable contract for the sale and purchase of the property and paying the deposit with his own funds; and

(5) whether the relevance of the personal representative’s repayment of the money from the estate is dependent on whether there was disclosure to the beneficiaries at the time.”

3.   The hearing date of the appeal will be 16 January 2017.