VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT

HCA 1376/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1376 OF 2011

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BETWEEN

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D E C I S I O N

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1.  This is an application for leave to appeal against the decision I made on 21 June 2012, whereby I refused the defendant’s application to strike out the claim, or alternately, for the court’s determination on a point of law under O 14A of the RHC. Instead I made an order to stay the proceedings until the probate in respect of the deceased’s estate has been taken out and a reasonable time has lapsed after it has been submitted to the defendant for inspection.

2.  The background of this case and the reasons for the dismissal of the defendant’s application have been fully set out in my decision dated 21 June 2012, and I do not want to repeat the same here.

3.  The original application had been fixed for argument before me for 2 hours, and yet the application for leave to appeal was fixed for argument for 3 hours.  It seems that the defendant seeks to reargue the whole application again by relying on wholly new list of authorities, including cases from other common law jurisdictions such as Australia, Canada and United States.  In my judgment, such kind of practice of rearguing the whole application and to rely on a new list of authorities is a waste of judicial resources and should not be encouraged.  Parties to litigations have the duty to put all the relevant authorities to the court for consideration in the first instance hearing, otherwise it may lead to unnecessary appeal proceedings.  Having made such observation, I have no criticism against Mr Chan because he was only briefed to argue for the defendant in this application for leave to appeal and not in the original application.

4.  In my written decision, I accepted the general principle that a foreign personal representative per se would not be recognised in the Hong Kong courts, with the effect that he cannot take out any proceedings on behalf of the estate here.  However, if the plaintiffs are not simply suing in the capacity of foreign personal representatives per se, and instead they are suing as executors of a will of a testator of foreign domicile, which is admissible to proof in Hong Kong, when lex domicilli does not differ from Hong Kong law in that title to the estate is vested in them by means of the will, then the position may be different.  As the executor derives the title from the will, the authorities mentioned in paras 14 to 16 of my decision support the proposition that the executor does have the right to institute proceedings in Hong Kong.

5.  However, the right of the executor under such circumstances is limited.  Although the executor may commence the action in the local court, he may not have the right to maintain the action including the right to sign judgment against the defendant as stated in para 17 of my decision.  Hence, the authorities support that there is clear distinction between the right to commence the action and the right to maintain or proceed with the action. 

6.  Since this hearing is not supposed to be a rehearing of the whole application, I do not intend to deal with the defendant’s arguments in every detail.  In short, Mr Chan submits that a foreign personal representative will not be recognised locally (at least unless and until he has obtained a grant of probate in the local court) is a fundamental legal proposition recognised across the common law world.  Mr Chan has also cited authorities in Australia, Canada and United States to support such contention.  While I have no disagreement with such legal principle, that does not mean that the executor of a foreign will does not have the capacity to institute proceedings in Hong Kong as supported by the authorities mentioned in my decision.  Further, the defendant has not, in his argument, dealt with the rationale for the distinction between the right to commence the action and the right to maintain the action including the right to sign judgment in favour of the plaintiffs. Indeed, my approach is in line with that adopted by Deputy Judge Ho (as he then was) in the case of Chao Yue Wah v Mo & Co (HK) Ltd & Ors, unreported, HCA 2326 of 2001 (the decision on 5 August 2003), and there is no reason put forward by Mr Chan as to why Chao Yue Wah was wrongly decided.

7.  In support of the application, Mr Chan refers me for the first time to the decision of Degazon v Barclays Bank International Ltd [1988] 1 FTLR 17 at pp 22 to 24.  In that case, there was an obiter by Kerr LJ at p 23 that an executor of a foreign will has to obtain a grant in the local court before he can institute or defend any proceedings in the local forum.  However, the facts of that case were quite different, as the court had to determine the question as to whether the local court had jurisdiction to hear a claim for debt against the foreign executor of the foreign estate who had incurred no personal liability in the local court as trustee or debtor and who had not intermeddled with the estate as executor de son tort.  The court had not been asked to determine the executor’s right to bring an action in the local forum.  The court had not dealt with the rationale for the distinction between a foreign personal representative per se and an executor of a foreign will.  Further, as the right of the executor is limited in the circumstances, it is also not clear whether what Kerr LJ had in mind was that the executor was not even allowed to commence proceedings in the first place.

8.  In his submission, Mr Chan has put forward a number of policy considerations as to why a foreign personal representative should not be allowed to sue in a local forum, including the protection of local creditors and the value of facilitating a centralized administration of estate.

9.  These are new arguments put before me for the first time.  However, I am of the view that these policy considerations are not valid in the present case.  In particular, as the executor has no right to maintain the action and to sign judgment against the defendant before he obtains a grant in Hong Kong, I cannot see how it would affect the policy considerations such as the protection of creditors.  On the other hand, I think that the policy consideration in the present case favours the plaintiffs’ right to commence the proceedings in the Hong Kong court.  The plaintiffs’ claim is that the defendant had wrongfully obtained the assets of the deceased by misrepresentation and undue inference.  The plaintiffs’ right to commence the action means that the plaintiffs are entitled to register the writ against the relevant property.  If the plaintiffs’ right is not recognised, the defendant can dissipate the property which may eventually be held to be part of the estate.  If the plaintiffs eventually succeed in obtaining the grant in the Thai court and local court and the plaintiffs succeed in present claim against the defendant, the plaintiffs may have difficulty in recovering the assets of the deceased from the defendant.  In such circumstances, maintaining the status quo pending the resolution of the legal battle in Thailand is a valid policy consideration recognising the plaintiffs’ right to start but not to maintain the action in the Hong Kong court.

10.  Mr Chan, in his very able submission, argues that the Court of Appeal should be given an opportunity to consider the principle as to whether the executor of a foreign will has the capacity to institute proceedings in Hong Kong.  Without any direct authority binding on the Court of Appeal, the appellate court may take a different view from mine. Despite that, the propositions of law stated in my decision are supported by authorities, including the dicta of Goff J in Redwood Music Ltd v B Feldman & Co Ltd [1979] RPC 1, authorities such as The Conflict of Law in Hong Kong and Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, and the local decision of Chao Yue Wah.  The rationale for the distinction between a foreign personal representative per se and an executor of a foreign will is clearly explained by Goff J in Redwood Music, and the right of the executor is limited as stated in para 17 of my decision.  In addition, the policy consideration is in favour of the maintenance of the status quo and to recognise the plaintiffs’ right to commence proceedings in the present case.  In such circumstances, I take the view that the defendant’s intended appeal has no reasonable prospect of success, and as a result I dismiss the defendant’s application for leave to appeal.