MUI PO CHU v. MOI OAK WAH

CACV 433/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 433 OF 2000

(ON APPEAL FROM HCMP NO. 1927 OF 1995)

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J U D G M E N T

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Chung J: (giving the judgment of the court)

1. The Appellant is the Plaintiff herein and appeals against the order of Suffiad J dated 1 September 2000 whereby the learned judge dismissed the Appellant's appeal from an order of Master A Cheung dated 27 July 2000. The learned Master refused the Appellant's application dated 24 June 2000 for the discovery of "documents and relevant agreements of [the Respondent's] vacuum company - Maywill Ltd resale of estate shop - 993 King's Road, HK and cheat $1,000,000.00 - which is the 1/6 entitlement of [the Appellant]" with no order as to costs.

2. In order to determine if there are merits in this appeal, it is necessary to go back to a brief history of the present proceedings (that is HCMP No. 1927 of 1995). The Appellant was entitled to a 1/6 share in the residuary estate of her deceased mother. The Respondent is the Appellant's father and he became the administrator of that estate when Letters of Administration were granted to him on 17 January 1989. The Appellant was dissatisfied with the set of accounts furnished by the Respondent in July 1995 and commenced these proceedings asking inter alia for an account and for orders that the 2 real properties forming part of the estate to be sold. The matter was tried by Woo J (as he then was) and in a judgment dated 3 January 1997, the learned judge dismissed the Appellant's claim but gave judgment in the Respondent's favour on his counterclaim in the sum of $537,048.48 with costs of the action.

3. The Appellant appealed against the said judgment and in a judgment of the Court of Appeal dated 11 April 1997 (in Civil Appeal No. 7 of 1997), the appeal was allowed to the extent that:-

(1) the judgment on the counterclaim was discharged;

(2) since the learned judge had performed the function of the taking of the accounts, there was no need to make any further order on the Appellant's claim;

(3) the learned judge's order that the Appellant should pay the Respondent's costs of the action and of the counterclaim was discharged.

4. At p. 8 of the transcript of the Court of Appeal's judgment dated 11 April 1997, the Court of Appeal observed that "the only remaining asset of the estate now is No. 371, Ground Floor [Shaukiwan Road]. Obviously the sooner this is sold the better, because upon its sale the winding up of the estate - now outstanding for more than 8 years since the grant - can be completed and final accounts can be rendered".

5. Subsequent to the judgment of 11 April 1997, the only outstanding matter properly to be dealt with was the provision of a final account by the Respondent. An order dated 24 February 1998 made by the Court of Appeal with the parties' consent provided in effect for the administration proceedings to continue in the Court of First Instance. If any issue should arise regarding the final accounts, the Appellant could apply to the Court of First Instance for directions for the resolution of the issue(s). The Respondent furnished the final accounts on 21 April 1998. Without setting out the details regarding the numerous unnecessary and misconceived applications of the Appellant, the issues raised by the Appellant relating to the Respondent's final accounts ultimately came to be tried by Yeung J and was disposed of in a Chinese judgment dated 19 August 1999.

6. In view of the above history, one would have thought that the matter between the Appellant and the Respondent is by now over. Unfortunately this view is obviously not shared by the Appellant because yet again an application was taken out by her by way of the said summons dated 24 June 2000.

7. When the learned Master refused the said application, he gave brief reasons for his decision. It reads:-

"Matter already fully tried and dealt with at trial before Yeung J whose judgment was given on 19 August 1999. Res judicata/issue estoppel. No new facts/grounds to re-open matter. Leave refused. Summons dismissed. No order as to costs."

8. When Suffiad J dismissed the appeal on 1 September 2000, a short reason for decision was also given:

"Application is wholly misconceived and this appeal from Master Cheung's order of 27 July 2000 is dismissed."

9. The Appellant's allegation that the Respondent made use of a corporate vehicle (that is Maywill Ltd) to purchase the property at 993 King's Road Hong Kong was raised at the hearing before Yeung J and the point was dealt with at pages 14-16 of the transcript of the Chinese judgment dated 19 August 1999. In short, the learned judge rejected the allegation on the ground that there was no basis to substantiate it. In these circumstances, both the learned Master and Suffiad J were entirely correct to have refused the Appellant's summons respectively on 27 July 2000 and 1 September 2000.

10. At the hearing of the appeal, the Appellant complains that full discovery of documents has not been made prior to the hearing before Yeung J in April 1999 and July 1999. Even if that be the case, the Appellant was aware of the lack of discovery at the time. The matter having in these circumstances been disposed of on 19 August 1999, there is no valid reason to allow the Appellant to seek discovery now.

11. Having dealt with the appeal in the above manner, it is strictly unnecessary to deal with the grounds of appeal set out in the Notice of Appeal dated 4 September 2000. We shall do so, nevertheless, for completeness' sake. Before turning to the individual grounds, we should observe that these grounds are confusing, incoherent and at times irrelevant or scandalous. With that in mind, we now deal with these grounds insofar as they are comprehensible.

12. Ground 1 in effect states that Master Poon has on 3 July 2000 given directions for the Appellant's summons to be adjourned for argument. Master A Cheung and Suffiad J have no right to act contrary to that order. This ground clearly has no substance and is rejected.

13. Ground 2 appears to rely on an order on 18 March 1998 when directions were given for the filing and service of respective lists of documents. In the Appellant's appeal to the Court of Appeal subsequent to the said order of 18 March 1998, however, the Court of Appeal observed that the Appellant's earlier application to the Master (and the related appeals both to the judge in chambers and to the Court of Appeal) was wholly misconceived: see pages 2-3 and 5 of the transcript of the Court of Appeal's judgment dated 26 June 1998 (in Civil Appeal Nos 85, 89 and 90 of 1998). The directions given in the order of 18 March 1998 must have been superseded by the Court of Appeal's judgment of 26 June 1998. In any event, the order of 18 March 1998 is no longer necessary since the dispute relating to the final accounts was disposed of by the Chinese judgment dated 19 August 1999. This ground is, therefore, also rejected.

14. Grounds 3 and 4 are not quite comprehensible and seem to repeat Grounds 1 and 2. Since we have rejected Grounds 1 and 2 in the above paragraphs, these 2 grounds are also rejected.

15. For the above reasons, this appeal is dismissed with no order as to costs.