WO YU WAI v. CHAN WEI TSUN AND ANOTHER

1992, No.MP 3561

IN THE SURPEME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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

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

J U D G M E N T

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

1. This is a vendor and purchaser summons taken out by the plaintiff against the defendant pursuant to s.12 of the Conveyancing and Property Ordinance, Cap.219. By an agreement for sale and purchase dated 2nd October 1992 ("the said agreement") made between the defendant as vendor of the one part and the plaintiff as purchaser of the other part, the plaintiff agreed to purchase and the defendant agreed to sell the property known as all those 2 equal undivided 96th parts or shares of and in Section A of 'Inland Lot No.7711, being first all that Apartment No.A3 on the 7th floor of Botanic Terrace, Block A and secondly, all. That carparking space No. 45 on the ground floor of the said building ("the said property").

2. Under Clause 6A of the said agreement, the defendant has to prove title to the said property extending at least 15 years before the signing of the said agreement. Under clause 7 of the said agreement, the plaintiff was entitled to raise any requisitions or objections in respect of the title to the said property. By a letter dated 26th September 1992, Messrs So & Co. for the plaintiff did raise a requistition or objection. The objection is in respect of an assignment dated 25th Say 1987 registered by Memorial, No.3422183 ("the subject assignment") whereby the vendor Chung Chun Tung, as executor of the Will of Chan Chung So Chun ("the deceased"), assigned the said property to the purchasers in that assignment without the consent of the beneficiaries named in the Will of the deceased having been first obtained. By her Will dated 11th October 1983, the deceased appointed Chung Chun Tung to be the sole executor of her Will. The Will provided, inter alias that after the payment of her just debts, testimentary and funeral expenses, the testator devised and bequeathed all the residue of her real and personal estate whatsoever and whatsoever unto her three sons in three equal shares. Probate of the said Will was granted to Chung Chun Tung on 6th March 1987. The subject assignment was made by Chung Chun Tung thereafter in favour of the purchasers on 25th May 1987.

3. Section 54 of the Probate and Administration Ordinance, Cap.10 provides that :-

"(1) No conveyance of immovable property of a deceased person dying after the commencement of this Ordinance shall be made without the concurrence of all the personal representatives of the deceased or an order of the court.

(2) Notwithstanding subsection (1) where probate is granted to one or some of two or more persons named as executors whether or not power is reserved to the other or others to prove, any conveyance of the immovable property may be made by the proving executor or executors for the time being, without an order of the court, and shall be effectual as if all the persons named as executors had concurred therein.

(3) Save where subsection (1) or (2) applies, where there are several personal representatives, the powers of all may, in the absence of any direction to the contrary in the will or grant of administration, be exercised by any one of them.

(4) A personal representative may charge mortgage or otherwise, dispose of any property vested in him, as he may think proper, subject to any restriction which may be imposed in this behalf by the will of the deceased and to the provisions of this section.

(5) The disposal of property by a personal representative in contravention of the provisions of this section shall be voidable at the instance of any other person interested in the property sold."

Other relevant provisions are contained in sections 66(4) of the Ordinance, which provides:-

"66. (4) A conveyance of a legal estate by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have noticed that all debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have been discharged or provided for."

4. The relevant facts concerning the subject assignment are as follows :-

(a) Chung Chun Tung was the sole executor appointed by the Will of the deceased.

(b) Chung Chun Tung was the proving executor and probate was granted to him.

(c) The Will provided for no power of sale of the property.

(d) There is no evidence whether all debts, liabilities, funeral or testamentary or administration expenses of the estate had been discharged when the property was assigned by Chung Chun Tung to the then purchasers.

5. Mr Yuen, for the plaintiff, crystallised the objection of the plaintiff by expressing his worries in the following matters :-

(1) The Will may impliedly place restrictions on the power of the executor in conveying the said property; and

(2) The beneficiaries under the Will may avoid the assignment.

The relevant part of the Will reads :-

"After the payment of my. just-debts-testamentary and funeral expenses, I devise and bequeath all the residue of my real and personal estate whatsoever and wheresoever unto my sons ... in three equal shares.".

There was no specific devise or bequest; what was disposed of was the residue of the deceased's real and personal estate. As such, I do not see any restriction on the power of the executor to sell or dispose of the said property.

6. The beneficiaries under the Will did not have any legal or equitable interest in the deceased's assets until the residue was ascertained; before then, they only had a right to ensure the due administration of the deceased's estate: see Stamp Duties Commissioner (Queensland) v. Linvingston [1965] AC 694, and Chan Chun Wah v. Chan Chun wai & Anr. (HCMP No.-1893 of 1987,- November 10, 1987; Godfrey J., unreported).

Recital 4 to the subject assignment stated that :-

"The Vendor as such Executor as aforesaid and for the purpose of administering the estate of the said deceased hath agreed with the Purchasers for the sale of the said Property to the Purchasers ..."

7. Mr Yuen suggested that for the protection of the plaintiff from any possible attack from the beneficiaries under the Will against the plaintiff's interest in the said property, it would be incumbent upon the defendant to provide the plaintiff with a confirmation, e.g., from Chung Chun Tung's then solicitors that the recital was true. There is no evidence or any circumstance which may give rise to even a suspicion that the recital is incorrect or untrue or an inquiry should be made as to the truth or correctness of-the-recital. I am of the view that none of the worries of the plaintiff is justified.

8. In such circumstances, I am of the view that the above provisions of s.54 and s.66 apply to the assignment made by Chung Chun Tung in favour of the then purchasers in that Chung Chun Tung had all the necessary power to convey the said property as the only proving executor of the deceased's estate in favour of the then purchasers. The so-call requisition made by the plaintiff's solicitors is, in my view, totally unjustified as the necessity of the consent of the beneficiaries under the Will of the deceased should not at any time, and does not, arise for consideration at all.

9. In the circumstances, I dismiss the originating summons and make an order nisi as to costs against the plaintiff.