Re Lau Hang Mui As the Administratrix of the Estate of Tang Shui Yung and Another

HCMP 2217/2020

[2021] HKCFI 182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2217 OF 2020

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Before: Deputy High Court Judge Winnie Tsui in Chambers

Date of Hearing: 15 January 2021

Date of Decision: 15 January 2021

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DECISION

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1.Before me this morning is the 1^st and 2^nd applicants’ application for a vesting order in respect of 3 plots of land pursuant to section 45(e) of the Trustee Ordinance, Cap 29. The plots are situated at Lot No 311, Lot No 987 and the Remaining Portion of Section A of Lot No 620, all in Demarcation District 103.

2.The application is made by way of an ex parte originating summons.

The evidence

3.The affidavit evidence filed by the applicants reveal the following.

4.The 2^nd applicant was born in 1947. His elder brother, Tang Shui Yung, passed away in 2019.  His widow was granted the letter of administration to act as the administratrix of the estate.  The widow is the 1^st applicant in this action.

5.Tang and the 2^nd applicant’s mother was variously known as Wu Yuk, Tang Wu Shi and Wu Shi.  She passed away in Hong Kong in 2001.  Probate searches reveal that no probate has been granted or letter of administration issued in respect of the mother’s estate.

6.The conveyancing documents and land search records exhibited to the affidavit evidence show that during her lifetime, the mother held the 3 plots of land on express trust for Tang and the 2^nd applicant:

(a)  By a Succession to Property dated 4 January 1952, the mother held Lot 311 as trustee for Tang and the 2^nd applicant. Both of them were minors at that time.

(b)  By a New Grant No 332 dated 15 October 1954, the mother held Lot 987 as trustee for Tang and the 2^nd applicant. Both of them were minors at that time.

(c)  By a Division of Property dated 20 October 1967 and a Deed of Surrender dated 11 February 1982, the mother held the Remaining Portion of Section A of Lot 620 on trust for Tang and the 2^nd applicant.

Findings

7.On the strength of the above documentary evidence, I am satisfied that the mother held the 3 plots of land on express trust for Tang and the 2^nd applicant during her lifetime and that she passed away with no personal representative.  Therefore the present situation comes within section 45(e) of the Trustee Ordinance.  The applicants now wish to have the properties vest in their own names as tenants-in-common in equal share.  I am satisfied that the court has the power and should exercise its discretion to make a vesting order in this case.

8.I am also satisfied that it is proper for the applicants to proceed with the application on an ex parte basis.  In principle, the application ought to be taken out against the trustee who is the affected party.  However, here, the estate of the mother has no personal representative and there is therefore no one to be served with the application.  The ex parte application is therefore in order: see In the Matter of All that piece or parcel of ground situate lying and being at The Remaining Portion of Lot No. 1168 in Demarcation District No. 124, Yuen Long, New Territories, Hong Kong HCMP 6021/2001, 7 December 2001, paragraph 5, per Kwan J.

Order

9.I order that the 3 plots of land do vest in the applicants absolutely as tenants-in-common in equal share for the entire legal and beneficial estate and interest of and in the land.

10.I do not however consider it necessary to grant the order sought by the applicants that the mother be removed as the trustee of the land.  The effect of the vesting order which I have just made is to vest the property without any further formality though there has been no actual conveyance: section 50 of the Trustee Ordinance; Butterworths, The Annotated Ordinances of Hong Kong, Cap 29, paragraph 50.06.  In the circumstances, the trust in respect of the property has come to an end.  It is not necessary to remove the trustee.

11.I make no order as to costs.

Ms Constance Leung, of Leung Kin & Co, for the 1^st and 2^nd applicants