TO KIN WAH v. TO FOOK TIM AND OTHERS

TO KIN WAH v. TO FOOK TIM AND OTHERS

The court found that To Kin Wah had shown a sufficient case to justify further investigation into the management and proposed distribution of the fund and was an appropriate representative of those opposing distribution; the bulk of To Wah's summonses were adjourned pending the independent accountants' report and the Court of Appeal judgment in the related judicial review, but the court granted the 8th summons in part, ordering an immediate payment of HKD 350,000 out of the fund to meet To Wah's solicitors' costs on account and directing that costs of the 23 August hearing be paid out of the fund (to be taxed on a trustee basis if not agreed).

Citation
TO KIN WAH v. TO FOOK TIM AND OTHERS
Parties
Plaintiff (hcmp509/2002); 3rd Defendant (hca1603/2004): To Kan Chi; Plaintiff (hcmp509/2002); 1st Defendant (hca1603/2004); Manager of Tsing Wan Kun: To Fook Tim; Plaintiff (hcmp509/2002); 2nd Defendant (hca1603/2004); Manager of Tsing Wan Kun: To Kam Chau; 1st Defendant (hcmp509/2002); Plaintiff (hca1603/2004); Guardian Ad Litem and Litigant: To Kin Wah; Infant Plaintiff in Hcmp509/2002 Suing by Guardian Ad Litem to Kin Wah: To Yuk Leung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 September 2005
Case Number
HCA1603/2004
Procedural Posture
Hcmp509/2002 (miscellaneous Proceedings) and Hca1603/2004 (high Court Action) Heard Together / Hearing of Multiple Summonses in Chambers; Judgment and Adjournment Order (29 September 2005)
Outcome
Summonses largely adjourned for further investigation; limited costs relief granted to applicant (To Kin Wah) payable from the fund
Legal Topics
Distribution of Trust Assets, Appointment and Registration of Managers, Requirement of Unanimity Under Chinese Custom, Indemnity of Legal Costs From Trust Fund, Judicial Review of Administrative Approval, Derivative Action Analogy for Minority Beneficiaries
Source Language
EN
Trusts Property Law Administrative Law Civil Procedure Chinese Customary Law Distribution of Trust Assets Appointment and Registration of Managers Requirement of Unanimity Under Chinese Custom +3 more

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Parties

To Kan Chi

Plaintiff (hcmp509/2002); 3rd Defendant (hca1603/2004)

To Fook Tim

Plaintiff (hcmp509/2002); 1st Defendant (hca1603/2004); Manager of Tsing Wan Kun

To Kam Chau

Plaintiff (hcmp509/2002); 2nd Defendant (hca1603/2004); Manager of Tsing Wan Kun

To Kin Wah

1st Defendant (hcmp509/2002); Plaintiff (hca1603/2004); Guardian Ad Litem and Litigant

To Yuk Leung

Infant Plaintiff in Hcmp509/2002 Suing by Guardian Ad Litem to Kin Wah

Procedural Posture

Hcmp509/2002 (miscellaneous Proceedings) and Hca1603/2004 (high Court Action) Heard Together / Hearing of Multiple Summonses in Chambers; Judgment and Adjournment Order (29 September 2005)

Legal Issues

  1. 1 Whether the three managers were validly appointed and fit and proper persons
  2. 2 Whether unanimity of T'ong/Tso members is required to authorize distribution of ancestral/trust funds
  3. 3 Whether surplus funds may be applied to secondary purposes and who decides those purposes

Ratio Decidendi

The court found that To Kin Wah had shown a sufficient case to justify further investigation into the management and proposed distribution of the fund and was an appropriate representative of those opposing distribution; the bulk of To Wah's summonses were adjourned pending the independent accountants' report and the Court of Appeal judgment in the related judicial review, but the court granted the 8th summons in part, ordering an immediate payment of HKD 350,000 out of the fund to meet To Wah's solicitors' costs on account and directing that costs of the 23 August hearing be paid out of the fund (to be taxed on a trustee basis if not agreed).

Court Disposition

Summonses largely adjourned for further investigation; limited costs relief granted to applicant (To Kin Wah) payable from the fund

Orders

  • Adjourn summonses numbered (1),(2),(5),(6) and (7) to a date after the independent accountants' report and the Court of Appeal judgment in HCAL105/2002
  • Order that the 8th summons under HCMP509/2002 for costs up to discovery is granted in part: HKD 350000 to be paid forthwith by HSBC Trustee Limited to To Kin Wah's lawyers on account of costs