FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS

FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS

The court has jurisdiction to grant a stay of HCA 2155/2011 (including the Order 14 application) based on the unimpeached global Settlement Agreement even without an express stay term; Recital B and Clause 48 do not prevent the court ordering a stay; Clause 19(e) applies only to option rights that are found to be presently existing by the investigating accountants and does not cover the expired Yau Wing Option; the plaintiff cannot rescind the Settlement Agreement only as to Ian and Tim while keeping it as to other contracting parties; accordingly a stay was granted to permit perfecting and implementing the Settlement Agreement, subject to conditions to ensure implementation and...

Citation
FOK CHUN YUE BENJAMIN v. FOK CHUN WAN IAN AND OTHERS
Parties
Plaintiff (in His Capacity as a Co Executor of the Estate of Fok Ying Tung Henry, Deceased and in His Personal Capacity): FOK CHUN YUE BENJAMIN; 1st Defendant (in His Personal Capacity and as an Executor of the Estate of Fok Ying Tung Henry, Deceased): FOK CHUN WAN IAN; 2nd Defendant (in Her Capacity as Co Executrix of the Estate of Fok Ying Tung Henry, Deceased): FOK MO KAN; 3rd Defendant: FOK LAI PING PATRICIA; 4th Defendant: FOK TSUN TING TIMOTHY; 5th Defendant: FOK LAI LOR NORA; 6th Defendant: FOK LAI LAI LILY; 7th Defendant: FOK MAN BUN NELSON; 8th Defendant: MANSON FOK; 9th Defendant: FOK MAN FONG THOMAS; 10th Defendant: FOK HIN YEUNG DAVID; 11th Defendant: FOK HIN SUEN DONALD; 12th Defendant: FOK HIN KWONG DANNY; 13th Defendant: FOK HIN KEUNG MICHAEL; 14th Defendant: FOK LUI YIN NEI; 16th Defendant (personal Representative of Deceased): PERSONAL REPRESENTATIVE OF THE ESTATE OF LAM SOOK DUEN, DECEASED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 January 2014
Case Number
HCA2155/2011
Procedural Posture
Civil Probate/executor Removal / Decision on Stay Applications (chambers)
Outcome
Stay granted: HCA 2155/2011 including the Order 14 application and related HCA 569/2012 stayed except for the purpose of perfecting and implementing the Settlement Agreement
Legal Topics
Stay of Proceedings, Settlement Agreement, Tomlin Order, Rescission of Contract, Non Disclosure/misrepresentation, Breach of Fiduciary Duty, Construction of Contract, Option Agreement (yau Wing Option), Order 14/application for Summary Judgment, Appointment/removal of Executors
Source Language
EN
Probate Civil Procedure Contract Law Equity Inheritance Stay of Proceedings Settlement Agreement Tomlin Order +7 more

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Parties

FOK CHUN YUE BENJAMIN

Plaintiff (in His Capacity as a Co Executor of the Estate of Fok Ying Tung Henry, Deceased and in His Personal Capacity)

FOK CHUN WAN IAN

1st Defendant (in His Personal Capacity and as an Executor of the Estate of Fok Ying Tung Henry, Deceased)

FOK MO KAN

2nd Defendant (in Her Capacity as Co Executrix of the Estate of Fok Ying Tung Henry, Deceased)

FOK LAI PING PATRICIA

3rd Defendant

FOK TSUN TING TIMOTHY

4th Defendant

FOK LAI LOR NORA

5th Defendant

FOK LAI LAI LILY

6th Defendant

FOK MAN BUN NELSON

7th Defendant

MANSON FOK

8th Defendant

FOK MAN FONG THOMAS

9th Defendant

FOK HIN YEUNG DAVID

10th Defendant

FOK HIN SUEN DONALD

11th Defendant

FOK HIN KWONG DANNY

12th Defendant

FOK HIN KEUNG MICHAEL

13th Defendant

FOK LUI YIN NEI

14th Defendant

PERSONAL REPRESENTATIVE OF THE ESTATE OF LAM SOOK DUEN, DECEASED

16th Defendant (personal Representative of Deceased)

Procedural Posture

Civil Probate/executor Removal / Decision on Stay Applications (chambers)

Legal Issues

  1. 1 Whether the court has jurisdiction to order a stay of the action and/or the Order 14 application
  2. 2 Whether a stay may be imposed absent an express stay provision in the settlement agreement
  3. 3 Whether Recital B and Clause 48 preclude a court-ordered stay

Ratio Decidendi

The court has jurisdiction to grant a stay of HCA 2155/2011 (including the Order 14 application) based on the unimpeached global Settlement Agreement even without an express stay term; Recital B and Clause 48 do not prevent the court ordering a stay; Clause 19(e) applies only to option rights that are found to be presently existing by the investigating accountants and does not cover the expired Yau Wing Option; the plaintiff cannot rescind the Settlement Agreement only as to Ian and Tim while keeping it as to other contracting parties; accordingly a stay was granted to permit perfecting and implementing the Settlement Agreement, subject to conditions to ensure implementation and...

Court Disposition

Stay granted: HCA 2155/2011 including the Order 14 application and related HCA 569/2012 stayed except for the purpose of perfecting and implementing the Settlement Agreement

Orders

  • Present action (HCA 2155/2011) including the Order 14 application and related HCA 569/2012 is stayed except for the purpose of perfecting and implementing the Settlement Agreement in full as expeditiously as possible
  • Parties to report to the court in writing on implementation progress within 3 months