TO KIN WAH v. TUEN MUN DISTRICT OFFICER AND OTHERS

TO KIN WAH v. TUEN MUN DISTRICT OFFICER AND OTHERS

On the material before the court, including the affirmations of Gloria and Yamano indicating that HSBC employees had produced records showing dormant accounts in the name of the deceased, there was prima facie evidence that HSBC is holding or has held funds in the name of Yau; therefore a garnishee order nisi must be made and the conduct of the proceedings given to the 2nd judgment creditor with safeguards and specified deletions to the proposed notice.

Citation
TO KIN WAH v. TUEN MUN DISTRICT OFFICER AND OTHERS
Parties
1st Judgment Creditor: Tao Tsui Hua; 2nd Judgment Creditor: Tung Kwai; Judgment Debtor: Personal Representative of Yau Nam Yuen (deceased); Garnishee: The Hongkong and Shanghai Banking Corporation
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 June 2003
Case Number
HCA3772/1980
Procedural Posture
Garnishment/enforcement (order 14/order 15) / Appeal/rehearing From Master Refusing Garnishee Order Nisi; Ex Parte Application Heard in Chambers
Outcome
Garnishee order nisi granted; Order 15 r.17 applied to give conduct of garnishee proceedings to the 2nd judgment creditor; specified deletions to Notice of Appeal; costs reserved.
Legal Topics
Garnishee Order Nisi, Prima Facie Evidence on Ex Parte Applications, Bank Records and Dormant/unclaimed Accounts, Affidavits/affirmations and Hearsay, Allocation of Conduct of Garnishee Proceedings
Source Language
EN
Civil Procedure Debt Enforcement Banking Law Probate/estate Administration Garnishee Order Nisi Prima Facie Evidence on Ex Parte Applications Bank Records and Dormant/unclaimed Accounts Affidavits/affirmations and Hearsay +1 more

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Parties

Tao Tsui Hua

1st Judgment Creditor

Tung Kwai

2nd Judgment Creditor

Personal Representative of Yau Nam Yuen (deceased)

Judgment Debtor

The Hongkong and Shanghai Banking Corporation

Garnishee

Procedural Posture

Garnishment/enforcement (order 14/order 15) / Appeal/rehearing From Master Refusing Garnishee Order Nisi; Ex Parte Application Heard in Chambers

Legal Issues

  1. 1 Whether there is prima facie evidence that HSBC holds or has held funds in the name of the deceased judgment debtor to justify issuance of a garnishee order nisi
  2. 2 Whether ex parte affirmations containing hearsay and unnamed bank employees are sufficiently reliable to ground a garnishee order nisi
  3. 3 Whether the conduct of garnishee proceedings should be given to the 2nd judgment creditor and safeguards to protect other interested parties

Ratio Decidendi

On the material before the court, including the affirmations of Gloria and Yamano indicating that HSBC employees had produced records showing dormant accounts in the name of the deceased, there was prima facie evidence that HSBC is holding or has held funds in the name of Yau; therefore a garnishee order nisi must be made and the conduct of the proceedings given to the 2nd judgment creditor with safeguards and specified deletions to the proposed notice.

Court Disposition

Garnishee order nisi granted; Order 15 r.17 applied to give conduct of garnishee proceedings to the 2nd judgment creditor; specified deletions to Notice of Appeal; costs reserved.

Orders

  • Garnishee order nisi to be issued against The Hongkong and Shanghai Banking Corporation.
  • Order under Order 15, rule 17 giving conduct of the garnishee proceedings to the 2nd judgment creditor (Tung Kwai).