Lo Ki Yuen v. Leung Suet Ha

DCMP1566/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1566 OF 2014

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J U D G M E N T

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1.This is an application by the applicant, the administrator of the estate of Lo Sang, the deceased (“Deceased”)under s.45 of the Trustee Ordinance (Cap 29) (“TO”) for a vesting order.

2.The subject matter of this application concerns a property (“Property”) described in the title of these proceedings as “all that 1/7^th part or share of and in the remaining portion of New Kowloon Inland Lot No 2364 (3^rd Floor, No 159 Pratas Street, Kowloon, Hong Kong”. Mdm Leung Suet Ha, the respondent, and Mdm Lo Ki Ling are, according to the land search, the registered owners holding the Property as tenants-in-common in equal shares.

3.The background of this application arises from an order (“Order”) in a consolidated action, nos DCCJ 309/2005 and DCMP 251/2005, made by His Honour Judge Thomas Au (as he then was) dated 31 December 2007. The deceased died before the conclusion of the said consolidated action.

4.His Honour ordered in the Order that the respondent held half of the shares of the Property as trustee of the Deceased. An appeal (no CACV 87/2008) by the respondent against the Order was later dismissed by the Court of Appeal on 25 March 2009.

5.Despite having delivered vacant possession of the Property to Mdm Lo after the respondent’s appeal had been dismissed, the respondent has along failed to comply with the Order by failing to transfer the legal ownership of her half share of the Property to the Deceased’s estate by executing the necessary documents.  Letters that had previously been sent to the last known address of the respondent were returned, marked “addressee unknown”.

6.Attempts had also been made by the applicant to make calls to the respondent’s last known mobile phone number but to no avail. Given the impossibility in finding out the respondent’s whereabouts, the applicant was unable to secure the respondent’s execution to complete the transfer of her legal ownership of the half share of the Property to the estate of the Deceased.  Hence the present application.

7.At the hearing on 24 February 2015, the applicant was represented by Counsel Ms Shek, and the respondent was absent.

8.According to the affirmation of service, the applicant had effected service in accordance with an order on 31 December 2014 by Master S P Yip who granted leave to the applicant to effect service of the proceedings by substituted service by the placing of an advertisement in a newspaper, and by leaving the documents at the respondent’s last known address. I was satisfied that the respondent was served with the originating summons as well as the notice of the appointment in accordance with the substituted service order, and I therefore proceeded to hear the application in the respondent’s absence.

9.As it had been noted that the applicant had not filed any evidence as to the relevant value of the Property showing that this application satisfied the monetary limit of the District Court jurisdiction, I directed an adjournment of the application to enable the applicant to file further evidence to answer this requisition, and further directed counsel to file written submissions. As no prejudice would have been caused to the respondent by not requiring counsel to attend another hearing just to deal with the jurisdictional point, I further ordered the consideration of supplemental evidence and counsel’s written submissions to be disposed of on paper without any further hearing.

10.Subsequently, the applicant filed an affirmation setting out the market value of the Property, which is stated to be about $2.8 million. In her written submissions, counsel submitted that these proceedings concern with the execution of a trust, and were therefore governed by  s37(1)(b) and (2) of the District Court Ordinance , which prescribes a monetary limit of an amount not exceeding $3 million in respect of the value of a trust property. Referring to the applicant’s supplemental evidence on the value of the Property, counsel submits that these proceedings are within the District Court jurisdiction as the value of the half share of the Property is only $1.4 million.

11.Counsel further refers to the ratable value and the amount of the quarterly government rent of the Property deposed to in the supplemental affirmation, which are respectively $51,600 and $387. It is submitted that the proceedings fall within the jurisdictional limit of this court whether references are to be made to the value of the Property, its rateable value or the amount of the government rent.

12.Having considered the further evidence the applicant has since filed and the counsel’s submissions, I am satisfied that this court has jurisdiction to deal with this application.

13.After reading the affirmation filed by the applicant and all the evidence annexed thereto as well as counsel’s written submissions, I am satisfied that the facts are proved.

14.In § 1 of the originating summons, the applicant prays for relief under s38A of the District Court Ordinance for an order that the respondent is to be ordered to execute a vesting assignment, and in the event of the respondent failing to do so, for an order that the Registrar of the District Court to be appointed to execute the assignment on the respondent’s behalf.

15.Alternative to the relief prayed in § 1 of the summons, the applicant seeks an order in §2 for a vesting order, pursuant to ss 45 and 51 of the TO by appointing the Registrar of the District Court to convey the respondent’s legal ownership of the half share of the Property to the applicant.

16.Counsel however clarified at the hearing of this summons that the applicant would be content with an order to be made under s45 of the TO without the need to seek the relief prayed for in §1 and the 2^nd part of § 2 of the summons. This must be right because once the court grants a vesting order, it has the same effect as if the proper conveyances have been executed by the respondent : s.50 of the TO. 

17.Accordingly, I grant a vesting order that the applicant be vested with all rights, title and interest to the extent of the 50% share of the Property. Although the applicant appeared to have taken a rather long time to institute these proceeding, I am satisfied that the applicant ought to be granted the costs of this application as the respondent had failed to execute the necessary assignments in accordance with the Order thereby necessitating the present proceedings. I therefore order that the respondent shall pay the applicant’s costs to be taxed if not agreed, with certificate for counsel. For clarity’s sake, I further direct that there shall be no order in relation to §1 and the 2^nd part of § 2 of the originating summons.

Ms Carol Y L Shek, instructed by Hau Lau Li & Yeung, for the applicant

The respondent was not represented and did not appear