YAU YUET MUI ROSA v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF CHAN MAN FAI, THE DECEASED

HCMP 939/2020

[2023] HKCFI 2682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 939 OF 2020

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J U D G M E N T

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Facts giving rise to these proceedings

1.  The late Mr Chan Man Fai (“Mr Chan”) whose personal representative is the defendant in these proceedings and the plaintiff (“Madam Yau”) were husband and wife.

2.  By an agreement for sale and purchase dated 31 December 1994 and a sub-agreement for sale and purchase dated 6 April 1995 (“Agreements” collectively), Mr Chan and Madam Yau agreed to purchase, expressly as joint tenants, Flat A on the 36^th floor of Block 5, and Car Parking Space No. 433 on the 4^th floor of the Car Port Building, of Cheerful Garden, 23 Siu Sai Wan Road, Hong Kong (“Flat” and “Parking Space” respectively and “Properties” collectively). Cheerful Garden was a joint development of the Hong Kong Housing Authority and the Chevalier group under the Private Sector Participation Scheme of the Home Ownership Scheme.

3.  Mr Chan and Madam Yau then emigrated to Australia in February 1995 prior to the completion of the Agreements.

4.  With a view to authorising Madam Yau’s brother, Mr Yau Wai Keung (“Mr Yau”), to complete the purchase of the Properties on their behalf, Mr Chan and Madam Yau jointly executed, and gave Mr Yau, a power of attorney dated 9 March 1995 (“Power”) for such purpose.

5.  Pursuant to the Power, Mr Yau completed the purchase of the Flat and the Parking Space as the purported lawful attorney of both Mr Chan and Madam Yau, as joint tenants, by assignments dated 15 August 1995 and 18 August 1995 (“Assignments” collectively).

6.  What caused difficulty is that Mr Chan had passed away before completion on 10 July 1995.

7.  In this regard, requisition was raised as to Madam Yau’s title to the Properties when she attempted to resell the same in July and August 2019. It was contended on behalf of the purchaser that Mr Chan’s death prior to the Assignments rendered the instruments void. The resale of the Properties was eventually cancelled by agreement.

Application before the court

8.  Before the court now is Madam Yau’s application by the originating summons filed herein on 29 June 2020 (“OS”), for various declarations, the effect of which is to remove any doubts as to her title to the Properties that may be raised by Mr Chan’s death before the Assignments.

9.  The personal representative of Mr Chan’s estate (“Estate”) is joined as the defendant to the OS. However, no such representative has ever been appointed as there has not been any grant, nor application for the grant, of letters of administration[1] in respect of the Estate. To enable the plaintiff to carry on these proceedings, pursuant to an order by consent dated 22 April 2021, the Official Solicitors accepted service of the OS on behalf of Estate. Further, at the hearing of the OS on 8 September 2021, upon Madam Yau’s application by summons dated 9 July 2021, I granted her leave to carry on these proceedings in the absence of a person representing the Estate pursuant to Order 15 rule 15 of The Rules of the High Court (Cap 4A).

Discussion

10.  The proper legal analysis of the consequences of Mr Chan’s death, as one of 2 joint tenants, prior to the Assignments is as follows.

11.  The Agreements had operated to transfer the equitable interest in the Properties to Mr Chan and Madam Yau as joint tenants.

12.  Upon Mr Chan’s death on 10 July 1995, all the equitable interest in the Properties that he had acquired under the Agreements passed entirely to Madam Yau by operation of the doctrine of survivorship. In other words, Madam Yau had become the sole equitable owner of the Properties before the Assignments.

13.  Insofar as the Estate is concerned, the Power had as a matter of law been revoked by, and upon, the death of Mr Chan. Hence, Mr Yau had no authority to take the Assignments on behalf of the Estate.

14.  As for Madam Yau, having acquired the whole equitable ownership of the Properties by survivorship upon Mr Chan’s death on 10 July 1995, the Assignments should take effect as conveyances of the legal title to the Properties to Madam Yau as sole legal owner.

Disposition

15.  For the above reasons, I declare that Madam Yau has since the dates of the Assignment, i.e. 15 and 18 August 1995, become the sole legal and beneficial owner of the Flat and the Parking Space respectively (“Declarations”).

16.  The OS seeks a number of other differently worded declarations, the sole effect of which is to establish Madam Yau’s legal and beneficial ownership of the Properties to the exclusion of the Estate. I believe the Declaration is sufficient.

17.  Lastly, I make no order as to costs.