YEUNG YIN WA v. NGAI WING WAH AND ANOTHER

HCMP 3608/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3608 OF 2003

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D E C I S I O N

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The Dispute

1. There were 2 summonses before this Court.  Both parties asked this Court to appoint an Administrator Pending Suit.  However, they disputed the ambit of the appointment.  The Defendants said that only two properties were needed, but the Plaintiff argued that it should be the whole of the Deceased’s estate.

The Background

2. Mr. Ngai Wing Wo (“the Deceased”) and Madam Ho Pui Chu were husband and wife.  Out of the wedlock, the 1^st and 2^nd Defendants were born on 25 September 1978 and 14 April 1982 respectively.

3. In 1989, the family migrated to Canada.  Unfortunately, Madam Ho passed away on 2 April 1992.

4. On 19 November 1992, the Deceased married the Plaintiff in Canada and they entered into a Marriage Agreement in the same date.

5. The Deceased died intestate in Hong Kong on 23 April 2003.

6. About a week later, on 29 April 2003, the Plaintiff signed a Renunciation (the “Renunciation”) for the Defendants to abandon her right to administration of the estate of the Deceased in Hong Kong (“the Estate”).  However, on the next day, 30 April 2003, she wrote through solicitors to revoke the Renunciation.  Since then, the parties have disputed with each other through their legal representatives.

7. On 19 August 2003, the Plaintiff commenced the present proceedings by way of Originating Summons to seek a court declaration that the Renunciation had ceased to have effect, or alternatively an order to retract the same.  The Defendants did not agree to the relief sought.  The matter went on until 7 July 2006 when the parties came to an order by consent that the proceedings herein should be continued as if it had been begun by way of Writ.

8. Briefly, the Plaintiff maintained that she was misrepresented and misled to execute the Renunciation.  It should therefore be of no legal effect.  Alternatively, she revoked it on 30 April 2003.  The Defendants, on the other hand, not only denied the same, but also counterclaimed for, inter alia, that the Marriage Agreement was valid, they were the only beneficiaries of the Estate and that, the Plaintiff should account for her wrongful intermeddling of the Estate.

9. Until now, the parties have reached the stage of discovery, and various witnesses statements have been filed and exchanged.  On 28 November 2006, the Defendants issued a summons seeking an order to appoint Messrs. Deloitte Touche Tohmatsu as Administrators Pending Suit for 2 properties within the Estate.  On week later, the Plaintiff issued a similar summons arguing that the appointment should cover the whole of the Estates, together with power to handle tax matters with the Commissioner of Inland Revenue.

10. The summonses were argued substantively before me on 5 June 2007.  Mr. Desmond Leung of Counsel acted for the Defendants and Mr. Raymond Fong of Counsel represented the Plaintiff.  Upon hearing from both Counsel, I reserved my decision to be handed down.  I now do so.

Ruling

11. Upon consideration of the evidence authorities and submissions from the parties, I have decided to allow the summons of the Defendants and to dismiss that of the Plaintiff.  My reasons appear as below.

Reasons

12. First, it was not disputed that the appointment of Administrator Pending Suit is an exercise of the Court’s discretion judicially in the circumstances of each particular case.  The main thrust of the appointment is to ensure that the part or the whole of the estate is properly managed and reserved for the benefit of the beneficiaries at the end of the pending litigation.  Both the judgments of Mrs. Le Pichon J. (as she then was) in Hung Jin Mui v Tang Chui Yuk Angela & Anor. (1988), unreported, HCAP No. 4 of 1997 (11 February 1998) and Mr. Cheung J. in Lai Wing Pang v Kwok Li Shuk Han (2003) unreported, HCAP No. 13 of 2003 (16 May 2003) succinctly sum up the relevant principles.

13. Second, the parties did not dispute that the appointment should not be made for the two properties.  Indeed, as a matter of general practice, appointment of Administrator Pending Suit is not uncommon for leased properties. Without such appointment, no one is legally capable of entering into a valid tenancy with the tenant as well as performing all incidental matters, including commencing proceedings for unpaid rent.  In this respect, I further notice that the parties also disputed as to whether the Defendants had agreed to the letting out and spending the rental as maintenance by the Plaintiff.  It suffices for me to say that I do not need to resolve it for the purpose of the present interlocutory application. The matter will be determined in due course at the trial after hearing of the oral testimony of the relevant witnesses.

14. Third, there is clear evidence before this Court that the Inland Revenue Department has agreed to hold over the demands for a number of years in relation to the Estate pending the outcome of the present proceedings.  As such, there is no urgency and risk of dissipation of the Estate, as suggested by the Plaintiff.

15. Forth, on balance, I am not satisfied that the Plaintiff has established a need for taking over the management of the private companies by the Administrator Pending Suit.  Before me, I do not consider that there is any or sufficient evidence to support a case that the Defendants have been running the companies at their own benefit and to the detriment of the Estate.  Further, with respect to Messrs. Deloitte Touche Tohmatsu, running business for private companies does require expertise in the area.  Without appropriate evidence before me, I consider that the Administrator Pending Suit should not be over-burdened with such task.

16. Fifth and finally, on balance, I am also not satisfied that the Plaintiff has proved a genuine and immediate need for an appointment to manage other assets of the Estate, including the shares in listed companies.

Costs

17. Costs usually follow event.  I see no reason to depart from it.  Counsel’s assistance is also useful to me.

Conclusion

18. In the circumstances, in relation to the Defendants’ summons, I order that:

(a)	Messrs. Lai Kar Yan and Darach E. Haughey of Messrs. Deloitte Touche Tohmatsu be appointed as the joint and several administrators of the estate of Mr. Ngai Wing Wo, deceased (“the Deceased”) limited to the Deceased’s two properties situate at Flat A, 16th Floor, Block 5, Wonderland Villas, New Territories, Hong Kong and Flat H, 5th Floor, Winner Building, Block A, No. 37 D’ Aguilar Street, Hong Kong, pending the determination of this action;
(b)	The costs of the administrators pendente lite shall be paid out from the Deceased’s Estate; and
(c)	There will be an order nisi that costs of this application, including all costs reserved and Certificate for Counsel for hearing on 5 June 2007, shall be paid by the Plaintiff to the Defendants to be taxed if not agreed, in any event.

19.  As to the Plaintiff’s summons, it is dismissed with an order nisi that costs thereof, including all costs reserved and Certificate of Counsel for hearing on 5 June 2007, will be awarded to the Defendants and borne by the Plaintiff, to be taxed if not agreed, in any event.