TAIYO KOGYO CO, LTD v. UBS AG AND ANOTHER

HCMP 1097/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1097 OF 2006

——————-

  IN THE MATTER of Sections 52(1)(e), 52(5) and 57 of the Trustee Ordinance, Cap. 29 and under the inherent jurisdiction of the Court
  and
  IN THE MATTER of the funds held in an account with UBS AG’s branch in Hong Kong in the name of Mr. Shohei Suto (now deceased)

——————-

BETWEEN

  TAIYO KOGYO CO., LTD. Plaintiff
  and  
  UBS AG 1st Defendant
  TOSHIKO SUTO 2nd Defendant

——————-

Before: Hon Sakhrani J in Court

Date of Hearing: 28 August 2006

Date of Judgment: 28 August 2006

______________________

J U D G M E N T

______________________

1. These proceedings concern the funds held in a Japanese Yen account particularized in the originating summons. The account was openedwith the 1st defendant’s branch in Hong Kong on 25 August 2003 in the name of Mr Suto Shohei (“Mr Shohei”).

2. Mr Shohei was formerly the president of the plaintiff. On the evidence before the court I am satisfied that the account was openedso that funds deposited therein were to be held by Mr Shohei on behalf of the plaintiff before they were to be remitted to the plaintiffeventually. After the account was opened funds were credited to the account as shown in the evidence. However, on 6 September 2004Mr Shohei passed away in Japan before the funds in the account were remitted to the plaintiff.

3. Mr Shohei is survived by his widow, the 2nd defendant. She accepts that the funds in the account did not belong to Mr Shohei and she makes no claim to the same.

4. On the evidence before me the 2nd defendant is the sole owner of the estate of Mr Shohei. She does not dispute the plaintiff’s entitlement to the funds in the account.

5. The 1st defendant adopts a neutral stance in these proceedings.

6. On the evidence before me I am satisfied that the plaintiff is entitled to the relief sought. I make an order in terms of paragraphs1 to 4 of the originating summons save that in paragraph 1 the word “currently” should be inserted between the words “funds”and “held” so that it should read “a declaration that the funds currently held in a Japanese Yen account (Account No. : 0/212,371/02, 07) with the 1st Defendant’s branch in Hong Kong in the name of Mr Shohei Suto (now deceased) (the “Funds”) were monies held by Mr Shohei Sutoprior to his death on 6 September 2004 on trust for the Plaintiff”.

7. The question of costs has also been agreed between the parties. I make an order that the 1st defendant’s costs of and occasioned by the originating summons be paid out from the funds in the account to be taxed on a trusteebasis and I further direct that the 1st defendant be allowed to deduct such costs from the funds before paying the same to the plaintiff. I also make an order that the2nd defendant’s costs of and occasioned by the originating summons be also paid out of the funds. Such costs to be taxed on a trusteebasis if not agreed.

  (Arjan H Sakhrani)
Judge of the Court of First Instance

Mr Alfred Liang, instructed by Messrs Arculli Fong & Ng, for the Plaintiff

Miss Sara Tong, instructed by Messrs Linklaters, for the 1st Defendant

Mr Mark Sutherland, instructed by Messrs Chong & Yen, for the 2nd Defendant