HENRY SHING HIM CHOW AND ANOTHER v. VICTOR LING KAM TONG AND ANOTHER

HENRY SHING HIM CHOW AND ANOTHER v. VICTOR LING KAM TONG AND ANOTHER

Clauses 17.1 and 17.2 of the Settlement Deed, read together, constitute an exclusive jurisdiction clause under BVI law covering both friendly and hostile trust litigation; notwithstanding the prima facie entitlement to enforce that clause, the Court exercised its discretion to refuse the stay because the claims against the trustees and the third party (Chow) are inextricably linked, Hong Kong is the clearly more appropriate forum on connecting factors (documents, witnesses, valuation, parties resident and service in Hong Kong), and avoidance of multiplicity of proceedings and interests of justice constitute sufficiently good reasons to depart from the clause; accordingly stay applications...

Citation
[2024] HKCFI 2737
Parties
1st Plaintiff: Henry Shing Him Chow; 2nd Plaintiff: Wong Po Ying; 1st Defendant (trustee): Victor Ling Kam Tong; 2nd Defendant (trustee): Ling Kam On; 3rd Defendant: Chow Chi Sang Antony
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 October 2024
Case Number
HCMP1305/2021
Procedural Posture
Trust Litigation; Breach of Trust; Jurisdiction Dispute; Disclosure and Summary Judgment Applications / Interlocutory Applications (stay; Summary Judgment; Leave for New Evidence) Determined at Trial Court Level (decision on Jurisdiction, Forum Non Conveniens and Disclosure)
Outcome
Trustees' and Chow's summonses for stay dismissed; new evidence applications (BVI proceedings documents) allowed; summary judgment in HCMP granted ordering disclosure and trust inventory/account; trustees and Chow ordered to file defences in HCA within 28 days; costs awarded to plaintiffs (nisi orders)
Legal Topics
Exclusive Jurisdiction Clause in Trust Deed, Forum Non Conveniens, Forum for Administration, Order 85 Disclosure, Order 28 Summary Judgment, Beddoe Proceedings, Proper Law of the Trust, Constructive Trust
Source Language
EN
Trusts and Equity Private International Law Civil Procedure Fiduciary Duties Jurisdiction and Forum Selection Exclusive Jurisdiction Clause in Trust Deed Forum Non Conveniens Forum for Administration +5 more

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Parties

Henry Shing Him Chow

1st Plaintiff

Wong Po Ying

2nd Plaintiff

Victor Ling Kam Tong

1st Defendant (trustee)

Ling Kam On

2nd Defendant (trustee)

Chow Chi Sang Antony

3rd Defendant

Procedural Posture

Trust Litigation; Breach of Trust; Jurisdiction Dispute; Disclosure and Summary Judgment Applications / Interlocutory Applications (stay; Summary Judgment; Leave for New Evidence) Determined at Trial Court Level (decision on Jurisdiction, Forum Non Conveniens and Disclosure)

Legal Issues

  1. 1 Whether clause 17 of the Settlement Deed is a jurisdiction clause
  2. 2 Whether clause 17 confers exclusive jurisdiction on the BVI courts
  3. 3 Whether Hong Kong proceedings should be stayed under the exclusive clause

Ratio Decidendi

Clauses 17.1 and 17.2 of the Settlement Deed, read together, constitute an exclusive jurisdiction clause under BVI law covering both friendly and hostile trust litigation; notwithstanding the prima facie entitlement to enforce that clause, the Court exercised its discretion to refuse the stay because the claims against the trustees and the third party (Chow) are inextricably linked, Hong Kong is the clearly more appropriate forum on connecting factors (documents, witnesses, valuation, parties resident and service in Hong Kong), and avoidance of multiplicity of proceedings and interests of justice constitute sufficiently good reasons to depart from the clause; accordingly stay applications...

Court Disposition

Trustees' and Chow's summonses for stay dismissed; new evidence applications (BVI proceedings documents) allowed; summary judgment in HCMP granted ordering disclosure and trust inventory/account; trustees and Chow ordered to file defences in HCA within 28 days; costs awarded to plaintiffs (nisi orders)

Orders

  • Dismissal of trustees' and Chow's stay summonses filed 22 Oct 2021, 17 Jan 2022 and 24 Jan 2022
  • Leave granted to adduce new BVI proceedings documents filed by trustees (new evidence applications allowed)