DCMP 3642/2022
[2023] HKDC 150
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3642 OF 2022
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IN THE MATTER OF the land known as Lot No 2258 in Demarcation District 92, North New Territories, Hong Kong (the “Lot”)
and
IN THE MATTER OF an Ex Parte application by Kan Yung Tat (簡容逹) (the “Applicant ”) for an application under Section 45 of the Trustee Ordinance, Cap 29, for a vesting order in relation to the Lot.
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Kan Yung Tat
the Applicant
(簡容逹)
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Before:
Deputy District Judge Alan Kwong in Chambers
Date of Hearing:
30 January 2023
Date of Judgment:
30 January 2023
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JUDGMENT
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1. This is an application for a vesting order pursuant to section 45(e) of the Trustee Ordinance (Cap 29), which provides that:-
“In any of the following cases, namely—
…
(e) where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land;
…
the court may make an order (in this Ordinance called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct…”
2. The Applicant is the son of Mr. Kan Chan Fat (also known as “Kan Tsan Fat”) (hereinafter the “Father ”).
3. By the conveyance dated 10 August 1976, the Father assigned Lot No.2258 in Demarcation District 92, North, New Territories, Hong Kong (the “Lot ”) to the Applicant and his brother (namely Kan Mei Fong) as tenants in common in equal share, to be held on trust by the Father himself as a trustee.
4. The records of the Lands Registry do show that the Father holds the Lot as a trustee, whereas the beneficial owners of the Lot are the Applicant and his brother.
5. The Father died on 29 December 1982.
6. As revealed by the probate search that the applicant and his solicitors conducted on 26 September 2022 and 30th January 2023, no personal representative has ever been appointed for the Father’s estate.
7. There is no question that the trustee who has been holding the legal title of the Lot (i e the Father) has died, and there is no other interested party. Accordingly, the condition set out in section 45(e) of the Trustee Ordinance is satisfied.
8. I am satisfied that the present application may proceed by way of an ex parte summons: see Re Ho Siu Kay & Ors [2021] HKCFI 2877 , para 4 (per DHCJ Paul Lam SC).
9. I am also satisfied that this is an appropriate case for the Court to exercise the powers under section 45(e) of the Trustee Ordinance.
10. Accordingly, I make an order that ½ share of the Lot and all interests and rights therein as well as the title thereof be vested on the Applicant absolutely.
11. I make no order as to costs in respect of the Ex Parte Originating Summons dated 26 September 2022.
12. I thank Mr. Yip for his assistance.
( Alan Kwong )
Mr Yip Chi Ho, Counsel instructed by K N Wong & Co, for the Plaintiff