Yau Yuk Tai v. Ip Shuck Po

HCA014670/1996

HCA14670/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.14670 OF 1996

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

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

Coram : Hon Mr Justice Chung in Chambers

Date of hearing : 18 November 1999

Date of judgment : 18 November 1999

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

J U D G M E N T

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

1. The Plaintiff commenced this action on 23 December 1996 against the Defendant claiming that the Defendant has held all or part of the suit property on trust for her. This trust is said to have arisen from :

a) an oral acknowledgement in about 1994 by the Defendant that he would transfer the whole interest in the suit property in consideration of $30,000;

b) the Plaintiff having paid $370,000 out of the price of $390,000 of the suit property whereas the Defendant having only paid the remaining $20,000.

2. According to an affirmation of Ho Pak Wa dated 19 May 1999, the Writ of Summons was served on the Defendant on 23 December 1996 by registered post. No "Acknowledgement of Service" was given by the Defendant. On 4 June 1999, the Plaintiff took out an application pursuant to the Rules of High Court, O.13, r.6, asking for an order in terms of this application.

3. That application came before me on 7 July 1999. After hearing Counsel for the Plaintiff, I indicated that the Plaintiff should file evidence regarding her contribution. The Plaintiff later filed an affirmation dated 11 August 1999. The documents exhibited showed the payment by the Plaintiff of $350,000. There is no document to evidence payment of the remaining $20,000. Despite this, from the whole circumstances, I am satisfied that the Plaintiff must have paid the said $20,000 as well.

4. The first limb of the Plaintiff's case is in reality asking the Court to enforce an oral agreement relating to land or relating to the disposition of an interest therein. I do not think that can be properly done.

5. In the circumstances, having considered the materials before me, I am satisfied that my discretion should be exercised in granting an order only in terms of paragraphs 2, 4 and 6 of this application (as amended).

Representation:

Ms Carol Fung, inst'd by M/s Alan Ho & Co., for the Plaintiff

Defendant in person, absent