HO SUEN CHANG v. HO HIN CHEUNG

HO SUEN CHANG v. HO HIN CHEUNG

The court struck out parts of the RDCCC: (a) claims for accounts in respect of FWS and 430A rents and sale proceeds and all account claims arising before 9 July 2009 because the plaintiff’s case conceded concurrent legal and equitable rights so the six year limitation applied and those causes of action fell outside...

Source-derived case information.

Citation
[2021] HKCFI 1132
Parties
Plaintiff: Ho Suen Chang; Defendant; Sole Executor of the Estate of Ho Hark Kun: Ho Hin Cheung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 April 2021
Case Number
HCMP1670/2015
Procedural Posture
Estate Administration, Probate and Partition With Claims for Accounts and Interlocutory Strike Out / Interlocutory Decision on Summons to Strike Out Parts of Pleadings and Determination of Limitation Issue (order 18 R19; Article 14 a Question Not Reached)
Outcome
Application partially allowed. Parts of the RDCCC struck out as time‑barred or for lack of locus; Adjusted Relevant Date fixed at 9 July 2009; Lap Kee allegations struck out; costs to Defendant with Defendant’s own costs to be borne out of the estate on trustee basis.
Legal Topics
Account of Trust, Breach of Trust, Limitation Period (s4 Lo), Striking Out Pleadings (o18 R19 Rhc), Locus Standi, Executor Duties, Order 14 a Determination
Source Language
en
Probate Trusts and Fiduciary Duties Civil Procedure Limitation Law Property/partition Account of Trust Breach of Trust Limitation Period (s4 Lo) +4 more

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Parties

Ho Suen Chang

Plaintiff

Ho Hin Cheung

Defendant; Sole Executor of the Estate of Ho Hark Kun

Procedural Posture

Estate Administration, Probate and Partition With Claims for Accounts and Interlocutory Strike Out / Interlocutory Decision on Summons to Strike Out Parts of Pleadings and Determination of Limitation Issue (order 18 R19; Article 14 a Question Not Reached)

Legal Issues

  1. 1 Whether the Plaintiff has locus to seek an account from the Defendant in his capacity as Executor
  2. 2 Whether parts of the Reply and Defence to Counterclaim and Counterclaim to Counterclaim (RDCCC) disclose any reasonable cause of action or are an abuse of process
  3. 3 Whether claims for account are time‑barred by the Limitation Ordinance and, if so, the correct relevant date

Ratio Decidendi

The court struck out parts of the RDCCC: (a) claims for accounts in respect of FWS and 430A rents and sale proceeds and all account claims arising before 9 July 2009 because the plaintiff’s case conceded concurrent legal and equitable rights so the six year limitation applied and those causes of action fell outside the limitation period; (b) the Account Counterclaim was struck out for lack of locus insofar as it sought the Executor to sue himself; and (c) allegations relating to Lap Kee Property were struck out as conceded. The Adjusted Relevant Date is 9.7.2009 and costs awarded to Defendant, defendant’s costs to be borne out of the estate on trustee basis.

Court Disposition

Application partially allowed. Parts of the RDCCC struck out as time‑barred or for lack of locus; Adjusted Relevant Date fixed at 9 July 2009; Lap Kee allegations struck out; costs to Defendant with Defendant’s own costs to be borne out of the estate on trustee basis.

Orders

  • Order in terms of paragraph 1 of the Summons granted subject to changing the date 1.9.2010 to 9.7.2009
  • Strike out parts of RDCCC relating to FWS Property rents and proceeds and 430A Property rents and proceeds and all claims for account arising before 9.7.2009