Read the full judgment text of HCA 766/2008 on BabelCite. This Court of First Instance judgment was delivered on 10 March 2010 before Chu J.
Civil practice – striking out – family burial ground – claim in breach of trust, breach of contract, and breach of Global Settlement Agreement – whether pleadings disclose viable causes of action – Civil procedure – O.18 r.19(1)(a) and/or inherent jurisdiction – Estates of deceased parties – whether claims can lie against estates for breaches occurring after death – Trusts – whether trust of burial ground rights was properly constituted – whether trust property identifiable – whether trustees were appointed and accepted office – whether beneficiaries ascertainable – rule against perpetuities – open class gift – void for uncertainty – Conveyancing and Property Ordinance (Cap 219) s.5(1)(b) – declaration of trust in land – writing required – Contract – family arrangements – whether contractual scheme pleaded – offer, acceptance, intention, consideration – analogy to constitution of unincorporated association rejected – implied term of settlement deed – business efficacy – contradiction with express terms – estoppel by deed – abuse of process – costs on indemnity basis – certificate for two counsel. Held: the plaintiff and defendants are all members of the extended Lee family, descendants of Lee Tim Cho and Lee Ng Shi, divided into the HT Lee branch (including CC Lee's sons) and the HY Lee branch (including MW Lee and the plaintiff). The family burial ground at Pok Fu Lam Chinese Christian Churches Cemetery consists of 16 plots acquired under licence in 1935. Under Schedule 6 of the 2004 Global Settlement Agreement, the 1st defendant (TY Lee) was acknowledged as the absolute owner of burial plot Nos. 32 and 33, and granted the plaintiff permission to be buried at plot No. 32. The plaintiff's three pleaded causes of action all arise from the burial of HF Lee and the laying of a plague at plot No. 27. The trust claim is unsustainable: the pleading is internally inconsistent as to when the trust was created (1935 or 1940s), the trust property is not identified with certainty, the defendants are not shown to have been appointed or to have accepted trusteeship (Robinson v. Pett; Richards v. Delbridge), the trust conflicts with the plaintiff's acknowledgement of TY Lee's absolute ownership, the trust offends the rule against perpetuities as an open class gift (Re Ridley), the objects ('senior son' and 'generational business leader') are conceptually uncertain (Anangel Atlas), and the trust is not in writing as required by s.5(1)(b) of Cap 219. The contract claim is unsustainable: the pleading does not identify the contract, the parties to it, or the consideration, and improperly treats membership of the family as automatic contractual assent. The implied term claim under the Global Settlement Agreement is unsustainable: the implied term is not necessary for business efficacy, is contradicted by the express acknowledgement of TY Lee's absolute ownership, and is barred by estoppel by deed. The claim against the 4th defendant was stayed due to his bankruptcy. The action was dismissed, the Statement of Claim was struck out, and the plaintiff was ordered to pay costs on an indemnity basis with a certificate for two counsel, the court finding the claims blatantly frivolous and vexatious amounting to abuses of process.
Legal issues: Whether the trust claim is sustainable on pleading · Whether the trust is void for perpetuity or uncertainty · Whether the contract claim is sustainable on pleading · Whether the Global Settlement Agreement claim based on an implied term is sustainable
Outcome: The Statement of Claim was struck out and the plaintiff's action against the 1st to 3rd and 5th to 21st defendants was dismissed. The 4th defendant had been adjudicated bankrupt, staying proceedings against him. The court also made an order nisi that the plaintiff pays the defendants' costs on an indemnity basis with a certificate for two counsel, the court characterising the claims as blatantly frivolous and vexatious amounting to abuses of process.
Cited by 4 cases