Or Chun Chung v. or Hip Hung

HCA005716/2000

HCA 5716/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5716 OF 2000

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Coram: Hon Yuen J in Court

Date of Hearing: 13 December 2000

Date of Judgment: 13 December 2000

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J U D G M E N T

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1. This is an application by the Plaintiff for a declaratory order.

2. The evidence has been presented by way of affirmation evidence from the Plaintiff. The Defendant is being sued in his capacity as the personal representative of the estate of the registered owner of certain property, the deceased being the mother of the Plaintiff and the wife of the Defendant.

3. This summons was filed pursuant to Order 19 r 7 of the Rules of the High Court but because a declaratory order is being sought, the matter has been brought in court and the evidence has to be considered by the Court before a declaration can be made.

4. The evidence now before the Court shows that this property had been acquired for HK$75,000.00. The registered owner was, as I have said, the mother of the Plaintiff. Evidence now placed before the Court shows quite clearly that of the original payment of HK$40,000.00 being part of the purchase price of this property, HK$10,000.00 had been paid by Mr Or (the Plaintiff) by his personal cheque, and a further part payment of HK$30,000.00 has been split between the Plaintiff paying HK$10,500.00 and the deceased paying HK$19,500.00. Legal costs and disbursements of HK$2,151.00 were paid by the deceased, but in relation to the apportionment account with the vendor, that was paid by the Plaintiff.

5. The balance of the purchase, being a sum of HK$35,000.00, was financed by a bank mortgage. In relation to the bank mortgage instalments, the evidence shows that this was paid for in the following way.

6. Firstly, the service charge was paid by the Plaintiff by his personal cheque. In relation to certain instalments between March 1978 and September 1970, these were again paid by the Plaintiff by his personal cheque.

7. There is then a complication in that for the 11 instalments from October 1970 to August 1971, these payments had been made by cheque drawn on the account of a shop called Hip Hing Company. This appears to have been a family business, but the Plaintiff has deposed in his 3rd affirmation that he had from time to time injected cash into the shop, and the cheques that he had drawn from October 1970 to August 1971 for the purposes of the mortgage instalments were drawn from the amount that he had paid into the shop. There is no evidence in opposition to this assertion of the Plaintiff on affirmation.

8. Further, another 15 instalments from September 1971 to December 1972 were again paid by Mr Or (the Plaintiff). He said that these instalments were paid in cash. What is significant is that the receipts for these payments have been held by him.

9. Finally, in relation to mortgage repayments from January 1973 to 1975, these were paid in equal shares by himself and the deceased. Again, there is no evidence in opposition to this.

10. Taking all those payments together, the upshot of it is that of the entire purchase price of this property, including costs, charges and mortgage repayments, some 63.6% of the total purchase price had come from the Plaintiff. There is, of course, no presumption of advancement from child to parent. Consequently, the presumption of resulting trust applies so that the deceased must be presumed to have held the Plaintiff's contribution by way of resulting trust of the property.

11. Consequently, I am prepared to make a declaration in the following terms:- that it be declared that the Plaintiff holds 63.6% of the total interest in the property as equitable owner and that the Defendant as personal representative of the estate of Wong Sik Ying holds the said 63.6% of the total interest in the property on trust for the Plaintiff.

12. I would also give an order that the Defendant do bear the Plaintiff's costs, the Defendant having indicated that he has no objection in principle to doing so.

Representation:

Mr Simon H W Lam, instructed by David Hui & Co., for the Plaintiff

Defendant in person, absent