Chan Shu Lam v. Chan Chau Wah

HCAP 6/2020

[2026] HKCFI 5688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 6 OF 2020

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BETWEEN

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REASONS FOR DECISION

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A.  Introduction

1.By judgment dated 6 June 2025 (see [2025] HKCFI 2338) (the “Judgment”)[1]:-

(1)  I adjudged that the 2019 Will (appointing the Plaintiff as the sole executor of the Deceased’s estate) be pronounced in solemn form of law.

(2)  I allowed the Defendant’s counterclaim, and adjudicated that 14.25% of the interest in the Property has been held on common intention constructive trust for the Defendant. I further order that the Plaintiff shall take all necessary steps to cause the Deceased’s estate to transfer 14.25% of the interest in the Property in favour of the Defendant.

2.By letters dated 31 March 2026, 24 April 2026, and 23 June 2026, the Defendant repeatedly demanded the Plaintiff to take immediate steps to obtain grant of probate in respect of the Deceased’s estate and to transfer 14.25% interest in the Property to her.

3.There is no evidence showing that the Plaintiff has made an application to obtain grant of probate.

4.As such, despite 16 months have lapsed, 14.25% interest in the Property has not yet been transferred in favour of the Defendant pursuant to my Judgment.

5.In the premises, the Defendant took out a summons dated 28 July 2026 seeking a vesting order together with consequential directions.

B.  Legal Principles

6.Section 45 of the Trustee Ordinance (Cap. 29) provides:-

“In any of the following cases, namely – …

(f) where a trustee jointly or solely entitled to or possessed of any interest in land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or interest or a release of the right, to convey the land or interest or to release the right, and has wilfully refused or neglected to convey the land or interest or release the right for 28 days after the date of the requirement;

(g) where land or any interest therein is vested in a trustee whether by way of mortgage or otherwise, and it appears to the court to be expedient,

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, or releasing or disposing of the contingent right to such person as the court may direct”

(emphasis added)

7.In Wong Kam Tong v Lam Hong Ching Andy (HCA 1144/2006, 18 February 2011) at paras 5 to 6, Sakhrani J held that where a party has been declared to hold a property on trust and ordered by the court to transfer the legal title to the other party, that party’s refusal or failure to comply with the court’s order would justify a vesting order.

C.  Application of the Legal Principles

8.In view of the matters set out in section A above, there is no question that the court has power to grant the vesting order in the circumstances of the present case.

9.Bearing in mind the hostility demonstrated by the Plaintiff in these proceedings (see eg Judgment, paras 82 to 87), there are sound reasons to believe that unless the court makes a vesting order, 14.25% interest in the Property would not be registered in the name of the Defendant.

10.Accordingly, the Defendant’s application is, in my view, justified.

D.  Summary of the Plaintiff’s Grounds of Opposition

11.However, the Plaintiff opposed the Defendant’s application on the following grounds:-

(1)  First, it was contended that the Defendant invoked the wrong procedure.

(2)  Second, it was contended that the Defendant’s application is premature.

12.These contentions are utterly unmeritorious.

E.  The Plaintiff’s Grounds of Opposition have No Merit

E1.  The Procedural Point taken by the Plaintiff

13.Ms Michelle Wong made the following submissions on the Plaintiff’s behalf:-

(1)  Ms Wong suggested that the present proceedings are governed by Order 76.

(2)  She then referred me to Au Kin Kong Kinny v Au Pui Yue Candy & Anor [2023] HKCFI 540 at para 25. There, Keith Yeung J (as Keith Yeung JA then was) stated:-

“In light of the provisions of O.76 r.1, the issues which a court may deal with in a probate action are confined to who should be granted letters of administration of the estate. As regards issues such as to whom and how the estate should be distributed, they are issues arising from the administration of the estate and should be dealt with by way of an administration action in accordance with O.85 of the Rules of the High Court.”

(3)  In these premises, Ms Wong contended that instead of taking the summons dated 28 July 2026 under the present proceedings, the Defendant should have taken out an originating summons pursuant to Order 85 under a fresh action.

14.With no disrespect, Ms Wong’s contention is liable to be rejected.

15.First of all:-

(1)  Whilst the validity of the 2019 Will was the subject matter of the original action (which was brought by the Plaintiff), the beneficial ownership of the Property was the subject matter of the counterclaim (which was brought by the Defendant).

(2)  Under the counterclaim (not the original action), I allowed the Defendant’s claim for 14.25% beneficial interest in the Property.

(3)  It is trite that pursuant to Order 15 rule 2(2), a counterclaim operates as a separate action.

(4)  In the premises, it is incorrect for the Ms Wong to suggest that the Defendant’s counterclaim for 14.25% beneficial interest in the Property fell within Order 76 (which only governs the Plaintiff’s original action). In my view, Ms Wong has conflated the claims under the Plaintiff’s original action with the claims under the Defendant’s counterclaim.

(5)  Furthermore, Ms Wong’s reliance on Au Kin Kong Kinny (supra) is misplaced. In that case, Keith Yeung J (as he then was) merely held that any dispute in relation to the administration of an estate should be dealt with by way of an administration action under Order 85, rather than a probate action under Order 76. Having said that the Defendant’s counterclaim operates as a separate action and that the same has nothing to do with Order 76, the proposition in Au Kin Kong Kinny (supra) is inapplicable and would not avail the Plaintiff.

(6)  In any event, it cannot be said that the Defendant’s application concerns the administration of the Deceased’s estate. The Defendant simply seeks to enforce my Judgment in respect of her counterclaim. There is nothing to administer. As such, there is no room for the Plaintiff to contend that the Defendant should have taken out an application pursuant to Order 85, which is not applicable at all.

16.Second:-

(1)  I am unable to accept Ms Wong’s submission that the Defendant should have commenced a fresh action under an originating summons for the purpose of seeking a vesting order.

(2)  In my view, the starting point is Order 1A, rule 1(b) and (c). It is provided that:-

“The underlying objectives of [the Rules of High Court] are - …(b) to ensure that a case is dealt with as expeditiously as is reasonably practicable; (b) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;…”

(emphasis added)

(3)  Bearing in mind the aforesaid underlying objectives of the Rules of High Court, I am unable to discern any reason why the Defendant may only seek a vesting order under a fresh originating summons. Ms Wong was unable to identify any practical advantage.

(4)  Meanwhile, the disadvantage of the procedural route proposed by Ms Wong cannot be more obvious. The procedure under a fresh originating summons is obviously more cumbersome, time-consuming, and costly.

(5)  More fundamentally, it is important not to lose sight of the fact that the Defendant is seeking to enforce the Judgment granted by this court. As such, it would be natural for the Defendant to take out her application before this court. After all, this court, having heard the trial, is most familiar with the background relating to these proceedings. Hence, this court would be in the most ideal and convenient position to deal with the Defendant’s application. If the Defendant were forced to take out a fresh originating summons, there is a likelihood that her application would be fixed before another judge who is not familiar with the background of the proceedings. This would not be procedurally economical.

17.Third:-

(1)  Ms Wong referred me to Wismettac Asian Foods Inc v United Top Properties Ltd [2020] 3 HKLRD 732 at para 61. There, DHCJ Paul Lam SC held that:-

“In this case, the Plaintiff’s applications for vesting orders were made as a part of the summons for default judgments, instead of by separate originating summons. Although I take the view that this is incorrect, having regard to the fact that the Plaintiff was simply following the usual practice which had been adopted and approved by the court in many precedents, I would regard the mistake as a procedural irregularity which I shall exercise my discretion to waive. However, in the future, I would urge the legal practitioners to consider carefully the correct legal procedures to be adopted in similar circumstances.”

(2)  Wismettac Asian Foods Inc (supra) does not avail the Plaintiff at all. The learned Deputy Judge’s observation was made in a context where a party, by summons, applied for a default judgment together with a vesting order.

(3)  As pertinently pointed out by Mr Stephen Siu and Ms Stephy Lo (for the Defendant), the learned Deputy Judge made the aforesaid observation because:-

(a)  The vesting order sought by the plaintiff in Wismettac Asian Foods Inc (supra) concerned the funds in a bank account, and, as such, the bank is a necessary party to the vesting order sought: see decision, para 52.

(b)  In an application for a default judgment, no evidence is admissible. In contrast, an application for a vesting order is a free-standing application, which requires the support of evidence: see decision, para 53.

(4)  In light of the aforesaid concerns, DHCJ Paul Lam SC observed that it would be undesirable and confusing for a plaintiff who seeks default judgment to apply for a vesting order simultaneously under the same summons that seeks the default judgment.

(5)  The learned Deputy Judge’s observation is not apposite in the present scenario. As pointed out, the Defendant is seeking to enforce this court’s Judgment, which was entered after a full‑blown trial. The learned Deputy Judge did not suggest, and could not have intended to suggest, that it is impermissible for a successful party to make an application for a vesting order by summons that is fixed before the judge who heard the trial. Any suggestion along this line would make no sense at all.

18.For all the above reasons, I reject the procedural point taken by the Plaintiff.

E2.  The Plaintiff’s Suggestion that the Defendant’s Application is Premature 

19.In gist, Ms Michelle Wong contended that as the Plaintiff had not yet obtained grant of probate, he was not in a position to (i) transfer 14.25% interest in the Property to the Defendant and (ii) consent to the Defendant’s application. If I understand correctly, the Plaintiff’s stance is that the Defendant should have waited until the Plaintiff obtains grant of probate, by which time the matter could have been dealt with by consent.

20.There is no merit in this contention.

21.By now, the Defendant has waited for 16 months. For reasons best known to the Plaintiff, he has not made any application for grant of probate. This is notwithstanding (i) my favourable findings in respect of the 2019 Will (appointing the Plaintiff as the sole executor of the Deceased’s estate); and (ii) the Defendant’s repeated requests under the letters dated 31 March 2026, 24 April 2026, and 23 June 2026.

22.The Plaintiff cannot obstruct the Defendant from receiving 14.25% interest in the Property by failing and/or refusing to make an application for grant of probate. It would be most absurd and unjust if this kind of gamesmanship were workable.

23.However, despite the absence of evidence from the Plaintiff, Ms Wong submitted that the delay could be explained by the fact that the Plaintiff had brought an unsuccessful appeal against my decision on costs: see [2025] HKCFI 3338; [2025] HKCFI 4593; and [2026] HKCA 609.

24.This explanation is a red-herring and liable to be rejected.

25.The question of costs has nothing to do with (i) the beneficial interest in the Property; and (ii) the validity of the 2019 Will.

26.In fact:-

(1)  All along, the Plaintiff has not pursued any appeal against my finding that the Defendant beneficially owns 14.25% of the interest in the Property.

(2)  Likewise, the Defendant has not pursued any appeal against my finding that the 2019 Will is valid and hence should be pronounced in solemn form of law.

27.In the premises, the fact that the question of costs was outstanding could not be a reason that explains the Plaintiff’s inaction in the past 16 months.

28.If a vesting order is granted, the Plaintiff would not need to take the trouble to execute an assignment to transfer 14.25% of the beneficial interest in the Property to the Defendant. Having said that the Plaintiff has not pursued any appeal against my finding that the Defendant beneficially owns 14.25% of the interest in the Property, I do not see any practical reason why the Plaintiff would wish to oppose the Defendant’s application for a vesting order.

29.In my view, the only explanation is that despite the findings under the Judgment, the Plaintiff seeks to obstruct the Defendant from receiving 14.25% interest in the Property earlier.

30.For all the above reasons, I reject the Plaintiff’s contention that the Defendant should have waited until the Plaintiff obtains grant of probate.

31.In light of the inordinate and lengthy delay on the part of the Plaintiff in applying for grant of probate, I am of the view that it is plainly justifiable and necessary for the Defendant to apply for a vesting order under her summons dated 28 July 2026.

F.  Disposition

32.In the premises, I allow the Defendant’s application for a vesting order. I make an order in terms of 1, 3[2], and 4 of the Defendant’s summons dated 28 July 2026.

33.Costs should follow the event.

34.I order the Plaintiff to pay the Defendant’s costs in respect of her summons dated 28 July 2026 forthwith, summarily assessed at HK$90,000.

35.Lastly, I thank Ms Michelle Wong, Mr Stephen Siu and Ms Stephy Lo for their helpful assistance rendered to me.

Ms Michelle LY Wong instructed by Cheung & Co for Plaintiff

Mr Stephen Siu and Ms Stephy Lo instructed by Jisp Cheung & Co., Solicitors for Defendant