GAO WEI BING v. NANYANG COMMERCIAL BANK TRUSTEE LTD AND OTHERS

GAO WEI BING v. NANYANG COMMERCIAL BANK TRUSTEE LTD AND OTHERS

The court accepted expert evidence that ROC law governed at death and PRC law governed administration in 2003, found no evidential basis for the alleged 1941 family division, held the 3rd and 4th defendants are entitled to 25% and 3.57% respectively of the Shares and dividends, and held the plaintiff was an executor...

Source-derived case information.

Citation
GAO WEI BING v. NANYANG COMMERCIAL BANK TRUSTEE LTD AND OTHERS
Parties
Plaintiff: Gao Wei Bing; 1st Defendant: Nanyang Commercial Bank Trustee Limited; 2nd Defendant: Personal representative of the estate of Ko Po Kam (deceased); 3rd Defendant: Wong Chi Shing; 4th Defendant: Wu Fan Qiang
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 September 2013
Case Number
HCA2125/2007
Procedural Posture
Civil Probate and Trusts (estate Administration) / Judgment (court of First Instance)
Outcome
Judgment for the 3rd and 4th defendants on their counterclaim; plaintiff's substantive claim dismissed/struck out.
Legal Topics
Constructive Trust, Intestacy, Limitation Defence, Executor De Son Tort, Expert Evidence on Foreign Law
Source Language
en
Probate Trusts Inheritance Law Limitation Law Conflict of Laws Constructive Trust Intestacy Limitation Defence +2 more

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Parties

Gao Wei Bing

Plaintiff

Nanyang Commercial Bank Trustee Limited

1st Defendant

Personal representative of the estate of Ko Po Kam (deceased)

2nd Defendant

Wong Chi Shing

3rd Defendant

Wu Fan Qiang

4th Defendant

Procedural Posture

Civil Probate and Trusts (estate Administration) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the Deceased effected a family division in 1941 transferring the Shares to the plaintiff
  2. 2 If no division, whether the 3rd and 4th defendants are entitled under applicable ROC/PRC intestacy law to 25% and 3.57% respectively of the Shares and dividends
  3. 3 Whether the plaintiff can rely on limitation to defeat the defendants' claim for dividends

Ratio Decidendi

The court accepted expert evidence that ROC law governed at death and PRC law governed administration in 2003, found no evidential basis for the alleged 1941 family division, held the 3rd and 4th defendants are entitled to 25% and 3.57% respectively of the Shares and dividends, and held the plaintiff was an executor de son tort/constructive trustee so limitation did not bar recovery; accordingly declarations and monetary awards for specified dividend amounts were entered for the defendants.

Court Disposition

Judgment for the 3rd and 4th defendants on their counterclaim; plaintiff's substantive claim dismissed/struck out.

Orders

  • Declaration that the 3rd defendant is entitled to 25% of the Shares in the estate of the Deceased and the 4th defendant is entitled to 3.57% of the Shares
  • Declaration that the 3rd defendant is entitled to HK$602,721.53 and the 4th defendant is entitled to HK$86,068.63 as their respective shares of dividends from 1 January 1946 to 31 December 2002