The necessity for depositions from overseas beneficiaries hinges on their material relevance to the plaintiff’s claims, which was not established in this case.

[43] This court has no disagreement with the principle laid down in the above cases and more importantly, stare decisis would bar this court from departing from it. However, it is pertinent to note that in all these cases, there was no issue of whether the defendant had dealt with the trust monies. In Foskett v. McKeown, it was not disputed that the premiums were paid from the money that was deposited by the purchasers and that the purchasers' money was misappropriated. The court did not have to determine whether the money in question was trust money to begin with. Similarly, in Takako Sakao, there was an earlier judgment granted by the court holding that the plaintiff was the beneficiary under a constructive trust. A second judgment was subsequently granted to give effect of the earlier judgment to enforce the plaintiff's beneficial interest under the constructive trust. The basis for the court's granting the second judgment was that being a proprietary claim, the plaintiff was entitled to trace her beneficial ownership in the property into the purchase price in the hands of the 2nd defendant.

[44] In the present case, the plaintiff has alleged wilful default, unjust enrichment, breach of fiduciary duty, conflict of interest, fraudulent concealment and so forth against WKN and/ or his estate in the Re- Amended Statement of Claim. As stated earlier, this Application was made before the trial of the action has even begun. In short, this court has yet to decide on the plaintiff 's claim that there were wrongdoings in the part of WKN as administrator of the estate of WTK. In fact, this is obvious in that the accounting and/or tracing orders are sought for by the plaintiff as part of the reliefs in this action - see para [7] (i), (ii), (iii) and (iv) above. That being the case, with respect, it would appear to me that the Application amounted to putting the cart before the horse.

[45] This was further apparent to me when I asked the learned counsel for the plaintiff if indeed the basis to include the three Australian Properties was because of tracing, why only the three Australian properties were identified and not the rest of the properties of NW and MW or for that matter, the properties under the defendant's or Kathryn Ma Wai Fong's own name. Unfortunately, no satisfactory answer was given. My point is this, if indeed, it is justified to depose NW and MW on account of tracing the properties under their names, should not the rest or other properties of the beneficiaries of the estate of WKN be included in the application too? Or would not those properties be also traceable if and when the court grants the accounting and/ or tracing order at the end of the trial of this action? If that is the case, what then is the basis to confine the present Application to the 3 Australian properties ahead of the accounting and/or tracing order? I am of the view that there is none except for to agree with the learned counsel for the defendant that it would amount to a fishing expedition or turning the present action into an inquisition.