LILY CHEUNG v. THE OFFICIAL SOLICITOR AND ANOTHER

LILY CHEUNG v. THE OFFICIAL SOLICITOR AND ANOTHER

The court held that a purported beneficiary has locus to pursue claims that are connected with the proper administration of an un-administered estate (here Paras 1 and 3), but an action is procedurally irregular if no person is appointed to represent the estate; the irregularity may be cured by a representation order under Order 15 r 15. The plaintiff was an appropriate appointee; accordingly the master was right to strike out as against the Official Solicitor given the irregularity but, once representation was granted, Paras 1 and 3 should be permitted to continue against the Official Solicitor while Para 2 was properly struck out against the Official Solicitor.

Citation
LILY CHEUNG v. THE OFFICIAL SOLICITOR AND ANOTHER
Parties
Plaintiff: Lily Cheung; 1st Defendant: The Official Solicitor; 2nd Defendant: Luk Tung Mei
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 October 2008
Case Number
HCMP635/2006
Procedural Posture
High Court (court of First Instance) Miscellaneous Proceedings Hcmp635/2006 / Appeal From Master's Striking Out Order and Ancillary Application for Representation Order Heard in Chambers; Decision 27 October 2008
Outcome
Appeal allowed in part and application allowed; plaintiff appointed to represent the estate for purposes of the proceedings; Paras 1 and 3 against the Official Solicitor reinstated to continue; Para 2 struck out against the Official Solicitor; stay of proceedings ordered pending determination of HCAP3/2008; costs...
Legal Topics
Representation Order, Locus Standi, Striking Out, Letters of Administration, Appointment of Administrator, Declaratory Relief Vs. Damages, Misjoinder
Source Language
EN
Probate and Administration Civil Procedure Trusts Mental Health Representation Order Locus Standi Striking Out Letters of Administration +3 more

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Parties

Lily Cheung

Plaintiff

The Official Solicitor

1st Defendant

Luk Tung Mei

2nd Defendant

Procedural Posture

High Court (court of First Instance) Miscellaneous Proceedings Hcmp635/2006 / Appeal From Master's Striking Out Order and Ancillary Application for Representation Order Heard in Chambers; Decision 27 October 2008

Legal Issues

  1. 1 Whether a purported beneficiary of an un-administered estate can sue in her personal capacity in relation to estate assets
  2. 2 Whether the court may make a representation order under Order 15 r 15 to cure procedural irregularity
  3. 3 Whether failure to join a personal representative renders the action irregular and liable to be struck out

Ratio Decidendi

The court held that a purported beneficiary has locus to pursue claims that are connected with the proper administration of an un-administered estate (here Paras 1 and 3), but an action is procedurally irregular if no person is appointed to represent the estate; the irregularity may be cured by a representation order under Order 15 r 15. The plaintiff was an appropriate appointee; accordingly the master was right to strike out as against the Official Solicitor given the irregularity but, once representation was granted, Paras 1 and 3 should be permitted to continue against the Official Solicitor while Para 2 was properly struck out against the Official Solicitor.

Court Disposition

Appeal allowed in part and application allowed; plaintiff appointed to represent the estate for purposes of the proceedings; Paras 1 and 3 against the Official Solicitor reinstated to continue; Para 2 struck out against the Official Solicitor; stay of proceedings ordered pending determination of HCAP3/2008; costs...

Orders

  • Representation order under Order 15 r 15 granted appointing Lily Cheung to represent the estate of Luk Ying for the purposes of these proceedings
  • Appeal allowed in part: plaintiff's claims in Paras 1 and 3 against the Official Solicitor to continue