TANG YING IP AND OTHERS v. TANG YING LOI

FAMV No. 17 of 2016

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 2016 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 36 OF 2015)

____________________

BETWEEN

TANG YING LOI Plaintiff
(Respondent)
and
TANG YING IP alias TANG YING YIP 1st Defendant
(1st Applicant)
YEUNG FOOK MUI 2nd Defendant
TRI-STRONG INVESTMENT LIMITED 3rd Defendant
(2nd Applicant)

____________________

Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Fok PJ

Date of Hearing and Determination: 5 July 2016

__________________________________

DETERMINATION

__________________________________

The Appeal Committee:

1. Leave is granted on the following point of great general or public importance:

Where a personal representative has, in breach of fiduciary duty,used money from the estate for the purchase of a property for himself,and where proceedings are brought against him for an account of profits, in proving the causal connection between such breach ofduty and the profits sought to be recovered, on what principles is such causal connection to be established?

2. Leave is also granted on the “or otherwise” ground regarding the application of the appropriate legal test taking into accountthe factual matters set out in sub-paras A(2) to (5) of the Notice of Motion dated 13 April 2016, namely:

“(2) whether it is irrelevant that the personal representative came by the opportunity and made the decision to purchase the propertyentirely independently from his office and the breach of duty;

(3) whether it is irrelevant that the personal representative could and would in any event have completed the purchase of the propertywith his own resources had he not used the money from the estate;

(4) whether it is irrelevant that the personal representative had acquired a beneficial interest in the property by entering intoa specifically enforceable contract for the sale and purchase of the property and paying the deposit with his own funds; and

(5) whether the relevance of the personal representative’s repayment of the money from the estate is dependent on whether therewas disclosure to the beneficiaries at the time.”

3. The hearing date of the appeal will be 16 January 2017.

(Geoffrey Ma) (RAV Ribeiro) (Joseph Fok)
Chief Justice Permanent Judge Permanent Judge

Mr Denis Chang SC and Ms Candy Chan, instructed by Wong, Hui & Co., for the 1st & 3rd Defendants (Applicants)

Mr Benjamin Chain, instructed by Pansy Leung Tang & Chua, for the Plaintiff (Respondent)