Re An Application By Chan Lai Ming

DCMP 3044/2018

[2019] HKDC 300

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3044 OF 2018

--------------------

--------------------

Before: His Honour Judge Koin Chambers

Date of Hearing:  6 March 2019

Date of Judgment:  6 March 2019

--------------------

JUDGMENT

--------------------

1.By an ex parte originating summons, the Applicant applies for a vesting order under section 45(e) of the Trustee Ordinance, Cap 29 (“TO”). The order sought, according to the draft order, is as follows:

(1)  The Trust Property described in the Schedule attached hereto now standing in the name of Au Ping Chung (區秉忠) as trustee for Pong Shu Sang (龐樹生) be vested in the Applicant absolutely for the legal and beneficial estate and interest thereof and therein and be registered in the name of the Applicant.

(2)  There be no order as to costs.

2.According to the documentary evidence placed before me:

(a)  The Trust Property is currently registered in the name of Au Ping Chung (“Mr Au”).  See the land search record at Exhibit “CLM-5”.

(b)  Mr Au acquired the property in 1975 at the consideration of $25,000.  See the assignment at Exhibit “CLM-6”.

(c)  At about the same time, Mr Au executed a trust deed to declare that he was holding the Trust Property in trust for Pong Shu Sang (“Mr Pong”).  In the preamble of the trust deed, it was recited, inter alia, that (i) Mr Au purchased the property on behalf of Mr Pong; (ii) the purchase money of $25,000 was provided solely by Mr Pong; and (iii) the property was conveyed to Mr Au as trustee for Mr Pong.  See the trust deed at Exhibit “CLM-7”.

3.Mr Pong passed away on 14 April 2015, survived by his wife the Applicant. 

4.On 1 December 2015, letters of administration of Mr Pong’s estate were granted to the Applicant: at Exhibit “CLM-3”.

5.Mr Au in fact predeceased Mr Pong[1]. The Applicant’s solicitors have confirmed with Mr Au’s son (Au Chun Nam Joseph) that there is no personal representative of Mr Au and no probate or letters of administration was granted in respect of Mr Au’s estate.  This is evidenced by the affirmation of the said Mr Joseph Au and the fact that a search at the Probate Registry had produced a nil result.  There is also no response to the correspondence addressed to the personal representative of Mr Au sent to Mr Au’s last known address.

6.Under section 45(e) of the TO, the court may make a vesting order where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land.

7.In the circumstances of this case, I am satisfied that it would be in order to proceed by way of an ex parte originating summons.  Prior to his demise, Mr Au was holding the Trust Property in trust for Mr Pong.  Since the death of Mr Au, there is no personal representative to take over the trusteeship under section 20 of the TO and the Applicant is entitled to a vesting order under section 45(e) of the TO.

8.I therefore make an order in terms of the order sought.

Mr Chan Hei Ching, instructed by Chiu, Szeto & Cheng, for the plaintiff