Man On Sum v Man Ping Hei
Court of First Instance
High Court Action No. 352 of 2015
Anderson Chow J in Chambers
21 September 2016

Summary order for account – order under O.43 r.1 sought for true and proper account for income and expenditure of t’ong – O. 43 r. 1 not appropriate for seeking specific discovery, answers to interrogatories or where dispute first needed to be resolved at trial

P was a member of a t’ong and D was its sole registered manager. P brought proceedings under O. 43 r. 1 of the Rules of the High Court (Cap. 4A, Sub. Leg.) for a summary order for a true and proper account of the t’ong’s money, assets and properties between 2003 and 2014, to be verified by an affidavit by D. D submitted that he had provided full accounts for the t’ong’s income and expenditure every year by displaying in public places the relevant ledgers and pages of the passbook for the t’ong’s only bank account. P countered that there were irreconcilable discrepancies between the figures in the ledgers and the passbook. The Master instead ordered D to provide P with a complete copy of the passbook from 2004 to 2014 and explanations for entries in it other than “for updating [or] interest” (the “Order”). D appealed. P argued that the Order should be upheld as: (a) the passbook had missing pages; and (b) some of the passbook entries were unexplained.

Held, allowing the appeal, that:

  • The Order could not be justified. First, if the Master had considered P was entitled to the account sought, she should have ordered D to provide it. Instead, she had effectively turned the O. 43 application into one for specific discovery and/or interrogatories, which was contrary to principle.
  • Second, a summary order for account was not appropriate. There was clearly a dispute as to whether D had rendered a “complete and proper account” and this was a “preliminary question” which should be resolved first at trial, before D could be ordered to give such an account. Further, as to the missing pages, if P in fact wanted a complete copy of the passbook, he ought to have applied for specific discovery, not an account. As for the unexplained entries, O. 43 was not designed as an instrument for seeking answers to interrogatories or clarification of accounts already rendered.
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