Read the full judgment text of FCMC 11594/2012 on BabelCite. This Family Court judgment was delivered on 5 November 2014 before Deputy District Judge I. Wong.
Leave to appeal – Joinder – Intended Intervening Party – Resulting Trust – Proprietary Estoppel – District Court Ordinance – Matrimonial Causes – Verbal promises – Family business – Costs – The District Court considered applications for leave to appeal a ruling refusing joinder of intended intervening parties in a matrimonial cause. The Petitioner was the husband (H), the Respondent the wife (W), and the intended intervening parties were their children (Hung and Yiu). The children claimed interests in the family business T&N L and a Property based on verbal promises that assets would pass to them upon H's death or through resulting trust claims. The children had worked for low salaries or nothing, relying on H's promises. The court applied the test under section 63A(2) of the District Court Ordinance (Cap 336) requiring a reasonable prospect of success or other reason in interests of justice, referencing Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012 and SMSE v KL [2009] 4 HKLRD 125. Regarding Ground 1, the court held the children's claim was at most a moral claim based on verbal promises rather than a legal interest directly related to the subject-matter. Regarding Grounds 2(i) and 2(ii), the court found an arguable case that H holds shares by way of resulting trust for Hung due to silence on consideration in affirmations, noting prospect need not be probable. Regarding Ground 2(iii), the court held Yiu's claim on the Property was fanciful as it lacked written evidence under section 5(1) of the Conveyancing and Property Ordinance (Cap 219) and was mere say so. Regarding Ground 3, while proprietary estoppel can operate positively, the facts did not make out a case. Regarding Ground 4, no procedural prejudice was found as no submissions were heard on the issue. The Respondent's Ground (b) was granted as it was essentially the same as Ground 2(ii). Leave to appeal was granted on Grounds 2(i), 2(ii) and Ground (b); refused on others. Costs order made with 2nd intended intervening party liable for costs of his application and costs in cause for others.
Legal issues: Test for joinder of intended intervening parties · Resulting trust claim regarding shareholding · Claim regarding Property ownership · Proprietary estoppel · Procedural fairness · Respondent's claim regarding shareholding
Outcome: Leave to appeal granted on Grounds 2(i) and (ii) of the intended intervening parties' summons and on Ground (b) of the respondent's summons; leave refused on other grounds.
Cited by 3 cases · Cites 3 cases