HO PO LING WINNIE v. IP KWAI YING AND OTHERS

HO PO LING WINNIE v. IP KWAI YING AND OTHERS

The amended originating summons failed to disclose any arguable cause of action under §3 and §9 because the company was not a trustee and any breach of fiduciary duty by directors could only be pursued by the company; D2's trusteeship of one 25% share did not give rise to duties that could constrain his separate role as director or enable him to 'procure' the company to act; allegations of dishonest assistance were unpleaded and inappropriate on originating summons; and the costs incurred in the separate action were not "of and incidental to" HCMP 3098 so the court had no jurisdiction to award them — accordingly §§3, 5 and 9 were struck out.

Citation
HO PO LING WINNIE v. IP KWAI YING AND OTHERS
Parties
Plaintiff (sole Executrix and Sole Beneficiary of the Estate of YIP MOON WAH Stephen, Deceased): HO PO LING WINNIE; 1st Defendant: IP KWAI YING; 2nd Defendant: HO TAI KAN; 3rd Defendant: IP KWAI HING; 4th Defendant: YIP MOON WING; 5th Defendant: YIP HOU LING, HELEN; 6th Defendant (company): SKY SURE PROPERTIES LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 September 2015
Case Number
HCMP3098/2014
Procedural Posture
Originating Summons (hcmp 3098/2014) Miscellaneous Proceedings / Interlocutory: Strike Out Application Under Order 18 R19(1)(a) HKCP 2015
Outcome
Struck out §§3, 5 and 9 of the amended originating summons dated 25 November 2014; order nisi that D2 and D5's costs of this application be paid by the plaintiff.
Legal Topics
Breach of Trust, Dishonest Assistance, Directors' Duties, Jurisdiction to Award Costs, Strike Out Under Order 18 R19(1)(a)
Source Language
EN
Trusts Company Law Civil Procedure Fiduciary Duties Costs Breach of Trust Dishonest Assistance Directors' Duties +2 more

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Parties

HO PO LING WINNIE

Plaintiff (sole Executrix and Sole Beneficiary of the Estate of YIP MOON WAH Stephen, Deceased)

IP KWAI YING

1st Defendant

HO TAI KAN

2nd Defendant

IP KWAI HING

3rd Defendant

YIP MOON WING

4th Defendant

YIP HOU LING, HELEN

5th Defendant

SKY SURE PROPERTIES LIMITED

6th Defendant (company)

Procedural Posture

Originating Summons (hcmp 3098/2014) Miscellaneous Proceedings / Interlocutory: Strike Out Application Under Order 18 R19(1)(a) HKCP 2015

Legal Issues

  1. 1 Whether the amended originating summons discloses a reasonable cause of action for breach of trust against the company and/or against D2 and D5
  2. 2 Whether a trustee of a shareholding can, by virtue of that trusteeship, constrain or expand duties when acting as a director of the company
  3. 3 Whether D5 can be liable for dishonest assistance where that allegation was not pleaded

Ratio Decidendi

The amended originating summons failed to disclose any arguable cause of action under §3 and §9 because the company was not a trustee and any breach of fiduciary duty by directors could only be pursued by the company; D2's trusteeship of one 25% share did not give rise to duties that could constrain his separate role as director or enable him to 'procure' the company to act; allegations of dishonest assistance were unpleaded and inappropriate on originating summons; and the costs incurred in the separate action were not "of and incidental to" HCMP 3098 so the court had no jurisdiction to award them — accordingly §§3, 5 and 9 were struck out.

Court Disposition

Struck out §§3, 5 and 9 of the amended originating summons dated 25 November 2014; order nisi that D2 and D5's costs of this application be paid by the plaintiff.

Orders

  • Sections 3, 5 and 9 of the amended originating summons dated 25 November 2014 are struck out
  • Order nisi that the 2nd and 5th defendants' costs of this application be paid by the plaintiff