MUI PO CHU v. MOI OAK WAH

HCA 1427/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1427 OF 2001

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J U D G M E N T

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1. This is an appeal from the refusal by Master Chan to enter judgment in default of defence against the respondent, her father, on 21 September 2001 when he ruled that "what the defendant claims is unclear". On 27 September 2001, in refusing a proposed amendment to the draft judgment submitted by the appellant, the learned Master refused the application on the grounds that he did not find any claim that could be sustained in law.

2. As a preliminary observation, I note that the appellant has served the papers in this case including the writ, the notice of appeal and the notice of adjournment of the hearing of the appeal to an address at Mt. Parker Lodge, Hong Park Path, Quarry Bay. I notice from a document submitted by the appellant to the Court that she is saying that the respondent no longer lives there. In the course of the hearing this morning, she has told the Court that he has not lived there since 1998. The fact that the documents relating to this action have throughout been served at an address at which the respondent does not live, would be sufficient alone to dispose of this appeal without going into the merits.

3. This is yet another chapter in the long saga of Madam Mui's battle against her father following the death of her mother in February 1987 and the granting of Letters of Administration to her father to administer the estate and distribute her mother's assets in accordance with the Intestate Estates Ordinance, Cap.23.

4. On this occasion, her writ, which was issued on 28 March 2001, is for $1,112,932.96 being money had and received by the respondent.

5. The appellant's claim comprises 3 sums:

(1) $537,048.48;

(2) $3,373.00; and

(3) $572,511.48

The claim for $537,048.48 is one which the appellant has brought before the Court on more than one previous occasion. It arises from the judgment of Woo J on 3 January 1997 in which he mistakenly allowed a counterclaim against the appellant by her father for that sum. The Court of Appeal subsequently found that the counterclaim was misconceived. The appellant has nonetheless persisted in her claim that this sum is part of her entitlement to 1/6 of her mother's estate. It is not.

6. This is apparent from other proceedings relating to the same matter. In his judgment of 27 March 1998 in MP1927 of 1995, Hartmann J set out the history of the matter. He referred to the judgment of Godfrey JA of 12 June 1997 in which the judge said this:

"The first point concerns a sum of $537,048.48 which the plaintiff says ought now to be paid to her under an earlier judgment of the Court of Appeal ... The plaintiff now appears to believe, and she contended before us, that she is in some way entitled to an order for payment of that sum to her. But this is completely misconceived. The fact to the matter is that the Court of Appeal made no order for that sum to be paid to the appellant, nor has any other court done so. There is no order which she can enforce for payment to her of that sum, and there is certainly nothing against which she can appeal in relation to it. For all these reasons, we can do nothing to assist her over this matter of the $537,048.48."

7. There was thus no order then that the plaintiff was entitled to such a sum, nor has there been such an order since. Indeed, on the contrary, since the judgment of Godfrey JA, the Court of Appeal made an order on 24 February 1998 that the administration proceedings should continue in the Court of First Instance. Final accounts were furnished by the respondent on 21 April 1998. The issues raised by the appellant in relation to the respondent's final accounts were tried by Yeung J and disposed of in a Chinese judgment dated 19 August 1999.

8. There is no basis for the appellant's contention that she is entitled to this sum.

9. The same applies to her claim for $3,373.00 as interest on this sum.

10. The claim for $572,511.48 is said to arise from "Mortimer VP's order dated 1998-2-24 page 3 para 6 which order defendant Moi Oak Wah to pay the costs including cost $572,511.48 to plaintiff Mui Po Chu from the defendant's 1/2 entitlement to the estate." Even if Mortimer VP had made such an order, such an order would not be enforceable by an action for money had and received. Mortimer VP did not make such an order. The order to which the appellant was referring is in the following terms:

The costs of the applicant and of the respondent of this application (and of the applicant's said appeal) be respectively paid and retained out of the estate of the said deceased in a due course of administration.

11. I dismiss the appellant's appeal.