LAM SIK YING, ADMINISTRATOR FOR THE ESTATE OF LAM TIM ALIAS STAN LAM TIM, DECEASED v. LAM SIK SHI AND ANOTHER

HCA 4713/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 4713 OF 2001

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J U D G M E N T

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Introduction

1.  The plaintiff (“Victor”) and the 1^st defendant (“Tony”) are half brothers.  Their father Lam Tim (“Father”) died intestate on 6 January 1983.

2.  By summons dated 19 November 2016 (“the Summons”), Tony applies – on the ground that it is irrelevant, scandalous, frivolous or vexatious, and it is otherwise an abuse of the process of the court – to strike out:

(1) Paragraphs (1), (2), (3), (4) and (5) under the prayer for relief of the Amended General Indorsement of Claim filed on 5 October 2015 (“AIoC”);

(2) Paragraphs 9A, 9B, 9C, 9D, 9E, 10A, 10B, 10C, 10D, 10E, 12A, 12B, 12C, 12D, 12E and paragraphs (1), (2), (3), (5) and (6) of the prayer for relief of the Re-Amended Statement of Claim filed on 6 October 2016 (“Re-ASoC”); and

(3) Consequentially:

(a) Paragraphs 4, 5, 6, 7, 8, 11A, 11B, 11C, 11D and 11E of the Re-Amended Reply to the Defence of the 1^st defendant filed on 25 October 2016 (“Re-AR”);

(b) Paragraphs 21 to 27 of the witness statement of the plaintiff filed on 18 June 2004; and

(c) Paragraphs 4 to 38 of the supplemental witness statement of the plaintiff filed on 25 October 2016.

3.  In support of his striking out application, Tony submits that:

(1) Victor’s present claims under the impugned paragraphs of the AIoC and the Re-ASoC are clearly against the principle of re-litigation. 

(2) Victor should not be permitted to bypass the unfavourable ruling of Mimmie Chan J in a related action HCA 1885/1987, where Victor’s application to enforce an accounting provision against Tony under the schedule of a Tomlin Order in that action was dismissed.

(3) Consequentially, the corresponding paragraphs in the Re-AR and the plaintiff’s witness statements are irrelevant, and thus ought to be struck out as well.

Relevant Legal Principles

4.  The principles governing an application to strike out a pleading are well-known and stated in Hong Kong Civil Procedure 2018,Practice Note 18/19/4.  The summary power to strike out a pleading can be exercised only in plain and obvious cases. 

5.  Where, as here, an application for striking out is also made on the grounds that the pleading is frivolous or vexatious or constitutes an abuse of process, the Court may admit evidence filed by the parties as long as it does not require evidence to be tested by cross-examination.  This accords with the object of the rule, which is to stop cases which are obviously frivolous or vexatious or unsustainable.  A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed: Hong Kong Civil Procedure 2018,Practice Note 18/19/7.

6.  More importantly, it is an abuse of procedure to litigate matters which have (or could have) been decided in earlier proceedings: Hong Kong Civil Procedure 2018,Practice Note 18/19/10.

Undisputed or indisputable background

7.  Victor and Tony are half-blooded siblings.  They belong to two different branches of the same family of the Father. 

8.  After the Father died on 6 January 1983, disputes between Victor and Tony regarding the estate of their Father (“Estate”) then started.  The Estate comprised the Father’s interests in:

(1) His sole proprietorship business “Stan Company A Tim” (“SCAT”);

(2) No 6 Sharp Street East, Hong Kong (“6SSE”);

(3) 1/F, No 15 Li Kwan Avenue, Hong Kong (“Li Kwan Property”);

(4) 4 rental properties (“Rental Properties”) being:

(a) Ground Floor, 29 Pan Hoi Street, Quarry Bay, Hong Kong (“1^st Rental Property”) – forced sold on 12 January 1989 for HK$330,000.00;

(b) Flat No 8, 19/F, Chung Hing Mansion, 5 Pan Hoi Street, Quarry Bay, Hong Kong (“2^nd Rental Property”) – forced sold on 5 October 1988 for HK$350,000.00;

(c) Flat No 3, 4/F, Chung Hing Mansion, 5 Pan Hoi Street, Quarry Bay, Hong Kong (“3^rd Rental Property”) – forced sold on 22 March 1988 for HK$195,000.00;

(d) Flat No 4, 4/F, Chung Hing Mansion, 5 Pan Hoi Street, Quarry Bay, Hong Kong (“4^th Rental Property”) – forced sold on 22 March 1988 for HK$179,00.00.

9.  The first set of legal proceedings between Victor and Tony was HCA 1885/1987 (“the 1987 Action”), in which Victor clearly claimed that Tony had wrongfully intermeddled with the Estate and that Tony had failed to give any account of the Estate.  Thus, what Victor affirms at paragraph 17 of his affirmation to oppose this application that “the purpose of HCA 1885/1987 was not for the purpose of suing Tony for intermeddling as pleaded in the present action ie HCA 4713 of 2001” is clearly misconceived.

10.  In the 1987 Action, Victor’s pleaded case at paragraphs 8 and 9 of the Amended Statement of Claim dated 1 March 1988 was expressly that Tony “has wrongfully intermeddled with the Deceased’s estate without the consent or approval of and to the exclusion of the Plaintiffs and the other members of the family … [and] has, wrongfully and notwithstanding the repeated requests by the Plaintiffs, failed and refused to give any account of the Deceased’s estate”.

11.  Victor then specifically claimed relief including “an account of what is due to the Deceased’s estate from the Defendant in respect of all money received by or come to the hands of the Defendant for or on account of the Deceased’s estate since January 1983”and“an order for payment by the defendant to the Deceased’s estate of any sum found due upon taking such account”and“all further proper accounts, inquiries and/or directions as the Court thinks fit”.

12.  The 1987 Action was then compromised by means of a Tomlin Order dated 13 April 1992 (“Tomlin Order”).  The schedule to the Tomlin Order, inter alia, provided that:

“(f) Further for the avoidance of doubt, the Defendant [D1] expressly agrees and acknowledges his responsibility and liability to account to the estate of the Deceased of all income, receipts, receivables, expenses outgoings etc in respect of the Deceased’s estate which have come into his hands (whether personally or by through his agents) since the death of the Deceased and unreservedly allows the administrators or co-administrator to ask for and make all necessary and proper accounts and inquiries in respect of the estate of the Deceased;”

13.  Victor then twice attempted to enforce and carry into effect paragraph (f) of the Tomlin Order. The first attempt was by summons dated 21 September 1992 under O.42 r.5A on grounds that Tony had defaulted in complying with paragraph (f) of the Tomlin Order and the application was granted.  By another summons dated 5 November 2012 (ie long after the present proceedings had been commenced), Victor took out yet another application in the 1987 Action under O.42 r.5A on the same ground that Tony defaulted in complying with paragraph (f) of the Tomlin Order (“Enforcement Summons”).

14.  As evidenced by the affirmations filed by Victor in support of the Enforcement Summons, the scope of accounts which Victor sought against Tony for the alleged intermeddling of the Estate in the 1987 Action was very broad and they included, amongst others:

(1) The assets of SCAT including stocks and cash that were kept at both its Hong Kong Branch and Kowloon Branch;

(2) Rental receipts from:

(a) All floors of 6SSE from January 1983 to May 2001;

(b) Li Kwan Property from 1983 onwards;

(c) The Rental Properties;

(3) Loss resulting from the forced sale of the Rental Properties; and

(4) Other Estate’s receipts.

15.  The Enforcement Summons was heard and dismissed by Mimmie Chan J on 21 October 2013 for inordinate delay in seeking compliance with the terms of the Schedule, see in particular paragraphs 12 and 13 of the Decision:

“12. Was the delay excusable? I consider not. The fact that there have been other proceedings ongoing between Victor and Tony cannot constitute any excuse or reason for Victor not to take action in respect of any default or breach on Tony’s part in this Action, whether by way of applying to the court under the liberty to apply provision in the Order, or to seek a lifting of the stay in this Action to pursue Victor’s claims against Tony for an account, or otherwise in respect of Tony’s alleged breach of the agreement of compromise embodied in the Schedule, if there was such breach. Parties have the duty to conduct and diligently proceed with each and all actions they have chosen to commence or defend. Unreasonable failure to proceed with, and delay in the progress of, an action may constitute abuse of the court process, and is generally a waste of the court’s time and resources at the expense of other more deserving litigants.

13. The liberty to apply provision is a part of the Order. There must be finality in any proceedings, and like any other attempt to enforce an order or to carry any part of an order into effect, parties should act with reasonable speed and diligence where it is necessary to apply to the court for any relief under the liberty to apply provision.” (Emphasis added)

16.  Mimmie Chan J refused Victor leave to appeal on 19 March 2014.  No further appeal has been sought by Victor thereafter.  So Mimmie Chan J’s Decision remains in full force.

The Re-litigation of the Present Claim

17.  On Victor’s own case, Victor’s claim against Tony for intermeddling the Estate has already been settled by the Tomlin Order.  Should Victor take the view that Tony has not complied with any term of the settlement:

(1) Victor should either seek to lift the stay in the 1987 Action and continue his action against Tony for intermeddling the Estate under that action; or

(2) Victor could also seek remedy in enforcing the accounting provision, i.e. paragraph (f) of the Schedule in the Tomlin Order which Tony allegedly failed to comply with.

18.  In the event of suggested default, a party wishing to enforce the terms of a Tomlin Order must apply to the court under the “permission to apply” provisions in the order for such order or direction as may be appropriate to convert the contractual obligation into one enforceable by judicial process.

19.  Victor has sought to do this, but the court has refused.

20.  Further, when one looks at the scope of Victor’s claim in the 1987 Action and sought in the Enforcement Summons, it can be seen how the issues overlap with his claims in the present action.  In that regard, a helpful table has been included in the 1^st defendant’s Skeleton Argument, which is reproduced below:

	The 1987 Action		HCA 4713/2001
	ASoC	P’s affirmations	AIoC	Re-ASoC
Claims and/or accounts in relation to SCAT	§§8-9, prayer of reliefs §§(3), (4) and (6)	1stAff§§8(a), 8(b), 8(e), 14; 2ndAff§§45-49, 64-75	§(1)	§§9A(c)(ii), 9A(c)(iii), 10A, 12A, 12B, prayer of reliefs §(1)
Claims and/or accounts in relation to Stan Company		1stAff§§8(a), 8(e); 2ndAff§§45-49	§§(2)(a), (2)(b)	§§9B(b), 10B, 12B, prayer of reliefs §(2)
Claims and/or accounts in relation to loss of rental from G/F and 1/F of 6SSE		1stAff§§8(c), 8(d); 2ndAff§§28-31, 33, 61-67	§§(2)(c), (3)	§§9C(a), 9C(b), 10C(a), 10C(b), 12C, prayer of reliefs §(5)
Claims and/or accounts in relation to loss of rental Li Kwan Property		1stAff§§8(d); 2ndAff§§32-33, 57-58	§(4)	§§9D(a), 10D, 12D, prayer of reliefs §(3)
Claims and/or accounts in relation to loss of rental (including rents already received) from the Rental Properties		1stAff§§8(c), 8(f); 2ndAff§§28-29, 33, 67	§(5)	§§9E(b)-(d), 10E(b), 10E(d), 12E, prayer of reliefs §(6)
Claims and/or accounts in relation to loss resulting from forced sale of the Rental Properties		1stAff§§8(g), 8(h); 2ndAff§§35-40, 52-54	§(5)	§§9E(c)-(d), 10E(a), 10E(c), 12E, prayer of reliefs §(6)

21.  For the purpose of claiming against Tony for the loss as per the impugned paragraphs in the AIoC and the Re-ASoC, Victor could and should just take out the Enforcement Summons.  Victor should not have, and in any event there is simply no need for Victor to start this present action for pursuing the said alleged claim against Tony for intermeddling the Estate again.

22.  I agree that when the Enforcement Summons was dismissed by Mimmie Chan J on grounds of inordinate and inexcusable delay in taking out the application under the Tomlin Order due to the fault of Victor himself, the 1987 Action has come to an end and Tony is no longer required to account for loss for the alleged intermeddling of the Estate.

23.  Victor is in effect attempting to have a second bite of the cherry to claim against Tony again for loss resulting from the alleged intermeddling of the Estate, a claim which has already been refused by Mimmie Chan J in the 1987 Action.

24.  I agree that it is an abuse for Victor to seek to get round the unfavourable decision of Mimmie Chan J: see Securum Finance Ltd v Ashton [2001] Ch 291 (CA), at 308D-E, 309D-G.

25.  At paragraph 30 of Victor’s affirmation in opposition, Victor seeks to argue that he was suing in different capacity in the compromised 1987 Action – as a beneficiary in the 1987 Action and as an administrator in the present action.  I agree that such attempted distinction would not bring Victor’s case any further in light of the relief sought in both actions and the terms of paragraph (f) of the Schedule of the Tomlin Order.

26.  As administrator, Victor is still a “privy” to himself in his alleged capacity as a beneficiary: see China North Industries Investment Ltd v Chum [2010] 5 HKLRD 1 at page 30, paragraph 81, citing Genesee Enterprises Ltd v Abou-Rached 84 BCLR (3^rd) 277.

27.  In any event, the court has the power to strike out attempts to re-litigate a decided issue as an abuse of the process of the court, even where the parties to the subsequent proceedings are not the same and cannot be described as privies of the original parties: see King’s City Holdings Ltd v De Monsa Investment Ltd [2013] 4 HKC 450 at pages 460-461, paragraph 39, citing the China North case at paragraph 52.  At page 462, paragraph 44, Fok JA (as he then was) said this:

“44. It is clear that the onus lies on King’s City to demonstrate an abuse of process. However, if it is shown to the satisfaction of the court that permitting De Monsa to advance the defence based on Lauw Senior’s mental capacity to contract would either be manifestly unfair to King’s City or would bring the administration of justice into disrepute, I do not agree that any further ‘special circumstances’ are required. As stated in Calyon…, by demonstrating manifest unfairness or the bringing of the administration of justice into disrepute, a party will have shown the necessary special reason why it would be an abuse of process for an issue to be re-litigated.” (Emphasis supplied)

28.  In the present case, as put by Mr Russell Coleman, SC, counsel for the 1^st defendant, the 1^st defendant has been vexed twice: by the same person, on the same materials and for the same purpose.  In my view, this is manifestly unfair and would bring the administration of justice into disrepute.

29.  In the event that the impugned paragraphs in the AIoC and the Re-ASoC are struck out, I agree the corresponding paragraphs in the Re-AR and the two witness statements of Victor would become irrelevant to Victor’s case and should be struck out.

Conclusion

30.  For the reasons set out above, I agree that the impugned paragraphs in the AIoC and the Re-ASoC should be struck out, and consequentially, the impugned paragraphs in the Re-AR, Victor’s witness statement and Victor’s supplemental witness statement should also be struck out.

31.  I see no reason why costs should not follow the event.  Accordingly, I order that the costs of this application be paid by the plaintiff to the 1^st defendant (with certificate for two counsel).  Such costs shall be taxed, if not agreed.

32.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

33.  Lastly, I think counsel for their helpful assistance to the court in this matter.