Re All Those Pieces or Parcels of Ground Registered in the Land Registry As Lot Nos 526 and 527

HCMP 1719/2018

[2018] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1719 OF 2018

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Before:  Deputy High Court Judge Kenneth Wong in Chambers

Date of Hearing:  21 November 2018

Date of Decision: 21 November 2018

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D E C I S I O N

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1.The applicants’ solicitor clarifies to me at this hearing that the application is made under section 45(a) of the Trustee Ordinance.  Section 45(a) of the Trustee Ordinance provides that where the court appoints or has appointed a trustee, or where a trustee has been appointed out of court under any statutory or express power, the court may make an order, in this Ordinance called a vesting order, vesting the land or interest therein in any such person, in any such manner, and for any such estate or interest as the court may direct.

2.The applicants’ solicitor also further clarifies to me at this hearing that he relies on the second limb of section 45(a) of the Trustee Ordinance, namely that, “where a trustee has been appointed out of court under any statutory power”.  The statutory power that he relies on is section 18 of the New Territories Ordinance.  Section  18 of the New Territories Ordinance provides that:

“Whenever any land is vested in a minor, it shall be lawful for the Secretary for Home Affairs to appoint some fit person to be a trustee thereof for such minor during his minority and to remove any such trustee and to appoint any new trustee. Every such appointment shall be registered by the Secretary for Home Affairs in the Land Registry, and upon registration the land the subject of the trust shall vest in the registered trustee for all the estate and interest of the minor therein...”

3.There is a succession to property dated 28 December 1949, wherein Madam Wan Cheung-shi was appointed as a trustee succeeding Lot Nos 526 and 527 of Demarcation District No 2 from her husband, Mr Wan Kwai-wan, deceased, and Madam Wan Cheung-shi was appointed as a trustee for their two sons, Wan Man and Wan Yau-po. Wan Man was then aged 18 and Wan Yau-po was then aged 14.  They succeeded the Lot Nos 526 and 527 from their deceased father, and their mother, Madam Wan Cheung-shi was holding the land as trustee for them under section 18 of the New Territories Ordinance.

4.On 18 September 1961, there was a removal of trusteeship signed by Madam Wan Cheung-shi and the two minors. By the time the two minors had reached full age of 26 and 30 respectively.  Then on 4 November 1975, Mr. Wan Yau-po, by a deed of gift, assigned all his interest in Lot Nos 526 and 527 to Mr. Wan Man. Subsequently, by an assignment dated 25 August 2011, Wan Man, in consideration of HK$300,000, sold the properties, namely Lot Nos 526 and 527, to Wan Yau-loi (温有來), Wan Loi-hei (温來喜), Wan Kam-hung (温錦洪), Wan Siu-wan Lauren (温笑雲), Wan Kam-kwong Raymond (温錦光) and Wan Kam-ming (温錦明) the applicants in the current proceedings. 

5.So I am satisfied that I have the power under section 45(a) of the Trustee Ordinance to vest the interests of Lot Nos 526 and 527 in the applicants in the current proceedings who, from the Land Search record and also from the title documents that I have seen, have acquired the title and interests in the said two properties in accordance with the chain of title that I have described. 

6.I accordingly make an order in terms of the ex parte originating summons dated 11 October 2018.

Mr W Kong, of Anthony Kwan & Co, for the applicants