Wong, Wen-Young (also known as Winston Wong) and Wong, Ray-Tseng (also known as Riley Wong) (an infant by his Next Friend, Grace Tsu Han Wong) v Grand View Private Trust Company Ltd
| Jurisdiction | Bermuda |
| Judge | Kawaley, A.J. |
| Judgment Date | 05 June 2019 |
| Court | Supreme Court (Bermuda) |
| Docket Number | Suit No: 2018: 18 |
Supreme Court
Kawaley, A.J.
Suit No: 2018: 18
Mrs. Elspeth Talbot Rice QC and Mr. Dakis Hagen QC of counsel and Mr. Rod S. Attride-Stirling and Mrs. Cratonia Thompson, ASW Law Limited, for the Plaintiff
Mr. Jonathan Adkin QC and Mr. Adil Mohamedbhai of counsel and Mr. Scott Pearman and Mr. Jonathan Mahoney, Conyers Dill & Pearman Limited, for the Defendant
Civil practice and procedure - Summary judgment — Principles governing exercise of Court's discretion to grant summary judgment or decide on issues summarily under RSC Order 14 — Issues suitable for summary determination raised by plaintiffs.
The present action was commenced by a Specially Indorsed Writ of Summons filed on February 2, 2018. This Writ was amended by Order dated January 10, 2019. The 1st Plaintiff, Dr Wong, is the eldest son of the later Mr. Wang Yung Ching (“YC Wang”), one of the founders of the Formosa Plastics Group of companies (“FPG”), who died in 2008. The 2nd Plaintiff is the grandson of Dr Wong and great-grandson of Mr. YC Wang. The Defendant is the trustee of the Wang Family Trust which was established on May 10, 2001.
The present proceedings are closely connected to the 1st Plaintiff's claims against the Defendant and other private trust companies in which the validity of certain purpose trusts and the transfers of assets into the trust are challenged (2018: No.44, the “Main Action”). The moniker ‘Main Action’ is appropriate because the present proceedings are believed to concern assets worth less than 5% of the value of the total assets in dispute in the Main Action. Nonetheless, the amount in dispute here is by most standards very substantial indeed, a consideration which cannot be ignored in case management terms.
The claims raised in the present action are nevertheless distinct claims in relation to a distinct trust, the Global Resource Trust No. 1 also settled on May 10, 2001 (“GRT”), by a Declaration made by its trustee, the Global Resource Private Trust Company (the “Trustee”), which was incorporated on May 8, 2001. The discretionary beneficiaries and ultimate default beneficiaries of the GRT were the children and remoter issue of Mr. YC Wang and his brother Mr. YT Yang (together, the “Founders”). The assets of the GRT were shares in Grid Investors Corp (“Grid”), which itself held FPG shares. The Defence admits that on September 26, 2005, the Board of the Trustee executed an irrevocable deed:
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(1) adding the Defendant as a beneficiary of the GRT;
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(2) removing all other discretionary and default beneficiaries;
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(3) declaring that the Trustee would take steps to appoint all the assets of the GRT to the Defendant as trustee of the Wang Family Trust;
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(4) declaring that the GRT would thereafter be terminated.
The Plaintiffs challenge the legality of these transactions and seek a declaration that the Defendant holds the relevant assets on trust for the GRT, together with other consequential relief (principally the appointment of a new trustee as the Trustee has been dissolved). By a Summons dated December 3, 2018, they seek, inter alia, summary judgment under Order 14 of the Rules of the Supreme Court 1985 (“RSC”). The principal assertion is that the replacement of individual discretionary and default beneficiaries with trust purposes combined with the resettlement of the trust assets for the benefit of a perpetual purpose trust were transactions beyond the scope of the relevant discretionary powers. The Defendant filed a Summons on or about April 12, 2019 seeking trial directions “including a direction that the trial of this action be heard at the same time as the trial of Action 2018: No. 44”.
The background to the present dispute and that in the Main Action shares common ground with other family trust disputes only at a superficial level. The Plaintiffs, Dr Wong and Riley Wong, are descendants of one mother and the Defendant is a company whose board of directors includes the children of another mother. However, atypically, the family members who are directors of the Defendant in this action and of the corporate Defendants in the Main Action while seeking to retain control of the lion's share of the assets settled on various purpose trusts are not doing so for their private benefit. Rather, they tacitly claim the moral high ground because the purpose trusts were apparently established in furtherance of the Founders' ethically evocative “Vision”, which essentially posits that persons who acquire wealth do not ‘own’ it but instead owe a duty to return it to society. By this measure if the parties were weighed in the scales of moral justice, it would be the Plaintiffs who would be found wanting, the Defendant's oral submissions implied. Mr. Adkin QC appeared to me to brandish the Founder's Vision like a glittering forensic talisman, inviting the Court to view Mrs. Talbot Rice QC's pleas for equitable justice to be done as lacking the luster which one typically associates with such claims.
I caution myself against being swayed by such considerations. It is entirely plausible that the 1st Plaintiff is motivated by concerns such as inclusion and/or status or other non-material concerns. There are many civil law cases the factual matrices of which have a strong moral overlay (e.g. cases pitting weak against strong, poor versus rich and victim versus fraudster). Such cases often entitle the Court to have regard to considerations of what are often referred to as commercial morality. The present case, at this stage at least, does not in my judgment fall into such a category. There is no suggestion of anything but a level playing field between the opposing parties. It is common ground that the contending family members have no pressing financial needs. The Plaintiffs do not allege bad faith. The Defendant does not allege that the Plaintiffs' claims should be refused on the grounds of inequitable conduct on their part. The only formal relevance of the Founders' Vision to the present proceedings is that the Defendant contends that it forms an important plank in the entire rationale behind the establishment of the various purpose trusts, including the Wang Family Trust, and the Trustee's decision to wind-up the GRT in 2005.
The main issues raised by the applications presently before the Court may be summarised as follows:
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(a) what principles govern the exercise of the Court's discretion to grant summary judgment or decide issues summarily under RSC Order 14?
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(b) what issues suitable for summary determination (if any) have the Plaintiffs raised?
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(c) if (b) is answered affirmatively, how should the issues be determined;
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(d) if there are any triable issues, should they be tried together with the Main Action?
However before considering the key issues, it is necessary to place them in the context of the pleadings and the evidence filed in relation to the relevant applications.
The governing principles on granting summary judgment applications were not subject to any discernible controversy. How the principles should be applied was the central issue in dispute. The primary source of the relevant provisions is RSC Order 14, which pertinently provides as follows:
“1 (1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.
2 (1) An application under rule 1 must be made by summons supported by an affidavit verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part, as the case may be, or no defence except as to the amount of any damages claimed…
3 (1) Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed…”
Since Order 14 was initially enacted, it has been complemented by the following ancillary provisions of RSC Order 1A rule 4 upon which the Plaintiff's counsel relied:
“(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes—…
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others…”
The Plaintiffs relied upon three judicial statements of principle. Firstly, Robert Goff, L.J. in European Asian Bank A.G. v. Punjab & Sind Bank (No.2) [1983] 1 W.L.R. 642 at 652 stated:
“…at least since Cow v. Cow [1949] 1 K.B. 474, this court has made it plain that it will not hesitate, in an appropriate case, to decide questions of law under R.S.C., Order 14, even if the question of law is at first blush of some complexity and therefore takes ‘a little longer to understand’. It may offend against the whole purpose of Order 14 not to decide a case which raises a clear-cut issue, when full argument has been addressed to the court, and the only result of not...
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