NG KIN YUEN, Administrator of the estate of LAM TIM STAN also known as LAM TIM alias STAN LAM TIM, deceased v. LAM SIK YING VICTOR AND OTHERS

HCMP 1924/2020

[2022] HKCFI 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1924 OF 2020

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BETWEEN

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DECISION

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1.  In the circumstances of this case, I see no reason why the 4^th defendant should be prevented from proceeding today with the application. Essentially, the present application by the 4^th defendant was taken out in view of the past and expected further delay in the final distribution of the estate of the deceased, which is held up by the dispute between the beneficiaries of the estate. The dispute is very much one between the 1^st defendant and the various other defendants but never involving the 4^th defendant. It is important to note that the entitlement of the 4^th defendant to the estate is not in dispute.

2.  According to section 34(1) of the Trustee Ordinance, Cap 29, the court has the power to consider an application of this sort by the 4^th defendant for effectively interim distribution of the estate to the beneficiaries pending the completion of the administration. As to the consideration for the exercise of such power, in the case of Lee Pui Ling Angelina v Chen Wai Wai [2020] 1 HKLRD 194, the Court of Appeal set out the various factors that the court may have to consider. I think as relevant to today’s purpose, it is of particular importance that the court is asked to consider the need of the beneficiary who may have to depend on the distribution of the estate.

3.  In respect of today’s application, the 2^nd, the 5^th and the 6^th defendants have confirmed that they have no objection.

4.  The proceedings have so far been served on the 3^rd defendant pursuant to the master’s order on the basis that the 3^rd defendant was out of jurisdiction. As I understand, so far there has been no response.

5.  The 1^st defendant, originally expected to be the party which may have a different view about this application, has not appeared, notwithstanding service. The materials before the court suggest that he does not challenge the entitlement of the 4^th defendant as a beneficiary of the estate.

6.  The plaintiff, being the independent administrator of the estate, has indicated a neutral stance to the application.

7.  Considering the materials before the court, this court is satisfied that an order should be made pursuant to the application of the 4^th defendant for the following reasons.

8.  There has indeed been substantial delay since the administration commenced back in 1999. Further delay would be expected due to the protracted litigation between beneficiaries. The outcome of such litigation probably would not affect the entitlement of the 4^th defendant as a beneficiary. As a matter of fact, the original beneficiary to the estate by the name of Lam Mo-chun has passed away by now, and hence the 4^th defendant who is the lawful attorney of Shum Wai-kuen Sanda, a family member and the administrator of the estate of Lam Mo-chun entered the picture. The protracted litigation, which is causing the delay in the distribution of the estate, has actual impact in a sense that Lam Mo-chun has already failed to benefit from the estate during her lifetime, and that is irretrievable, albeit that her entitlement may now be said to fall into her own estate.

9.  However, the evidence suggests that there is real need of the estate of Lam Mo-chun from the estate of the Deceased to meet its ends. The litigation amongst the various other beneficiaries would unlikely reduce the asset of the estate, as apparently the parties’ claims were not directed at the estate. Consideration has been made in respect of the independent administrator’s legal costs projected and that would be well afforded by the size of the estate. Apparently, the plaintiff, the independent administrator, holds no contrary view in that respect either.

10.  The interim distribution in terms of the amount would share a small fraction of the size of the estate. No doubt any interim distribution now would have to be given credit to in the final distribution.

11.  In the circumstances and for these reasons, I am satisfied that an order should be made.

12.  I also accept the plaintiff’s submissions that such interim distribution should only apply to the 4^th defendant for the time being because, for obvious reason, any pari passu distribution to all beneficiaries would not be suitable because of the underlying dispute amongst these various other beneficiaries. In fact, before me today, no such request by other beneficiaries is made in any event.

13.  I give an order in terms of paragraphs 1 and 2 of the summons filed by the 4^th defendant on 10 May 2021 but paragraph 1 of it will be amended first by crossing out “or sums as the court thinks fit and appropriate” and then adding at the end “within 28 days from the date hereof”.

(Discussion re costs)

14.  The costs of the application shall be paid out of the estate on an indemnity basis. That concerns the costs of both the 4^th defendant and the administrator. The 4^th defendant do lodge and serve statement of costs for summary assessment on paper within seven days.