FORMKING DEVELOPMENT LTD. V. LEE KWOK HUNG, ROBERT

1993, No. MP 1173

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is a Vendor Purchaser Originating summons.

2. By an Agreement dated 17th February, 1993 the Plaintiff agreed to purchase the suit premises Flat F on the 2nd Floor of Lyton Building in Mody Road, Tsimshatsui for $2,450,000.00 from the Defendant.

3. The Plaintiff's solicitors wrote to the Defendant's solicitors in these terms on the 17th February :-

"In Nomination Memorial No. 1674902 executed by Lam Tai Chuen (the nominator) in favour of Lin Hsi Hsi (the nominee), the nominator did not renounce his interest in the property and the nominee might have taken the above property upon trust for the nominator and an equitable interest might be outstanding in the nomination. Please clarify and provide us with evidence that the nominator had relinquished his interest in the property."

4. Put in simple terms the requisition seeks evidence that the presumption of a resulting trust has been rebutted.

5. The nomination memorial referred to was as follows :-

"LETTER OF NOMINATION

Pursuant to the provisions contained in Clause 3 of the Agreement for Sale & Purchase dated the 18th day of December 1978 and made between CHOI MAN KING as the Vendor of the one part and LAM TAI CHUEN as Purchaser of the other part and registered in the Land Office by Memorial No. 1639538 the said Lam Tai Chuen hereby nominated LIN HSI HSI of No. 48 Mody Road (Second Floor) Kowloon in the Colony of Hong Kong to be the Purchaser named in the Assignment in place of the undersigned in connection with the completion of the sale and purchase of the herein after mentioned property :-

1/91st part or share of and in Kowloon Inland but ... Nos. 7337, 7338 and 7340 (Flat "F" on the Second Floor of Lyton Building).

Dated this 9th day of February 1989.

SIGNED by the said Lam Tai Chuen in the presence of:	) )
Signed	)	(Header of Hong Kong
Authorised Clerk with Messrs. Deacons whose signature being verified by :-	) )	Identity Card No. Al15956)

Signed
Clerk & Interpreter to Messrs. Deacons,
Solicitors &c., Hong Kong."

6. As can be noted there is nothing in this 'Letter of Nomination' to indicate that the Nominator Mr. Choi relinquished his interest in the property.

7. Counsel for the Plaintiff Mr. H.Y. Wong referred to the four cases on this area of the law that have recently been decided in this jurisdiction. Clearly every case is dependent upon its own individual facts but it is most illuminating to see how similar problems have been dealt with in the past.

8. In Lionwill Investment Limited v. Triple Will Limited MP No. 1461 of 1992 Deputy Judge Fung was faced with a very similar dilemma to the one facing me here. He was able to resolve it as evidence was adduced to the effect that the nominator and the Nominatee were Husband and Wife which clearly indicated a presumption of the advancement of the funds used to purchase the property. Hence the problem was resolved.

9. In Fulltrend Company Limited v. Longer Year Development Limited MP No. 3211 of 1989 Godfrey J. received evidence to the effect that the Nominators were Directors of Nominatee Company. Not surprisingly in this situation the learned judge was able to resolve the dilemma.

10. Bokhary J. as he then was considered a similar problem in Easyknit Investment Company Limited v. Yetonce Limited MP No. 1454 of 1991. In that case the solicitor Mr. Leonard Ip who acted for both parties was able to give evidence to the effect that he was personally satisfied that where a Husband and Wife had been Directors of the company nominated to be assigned a property the Husband had in fact paid the purchase moneys.

11. Mr. Chow on behalf of the Defendant before me tried very conscientiously to surmount the difficulty facing him in this case. He placed particular reliance upon the receipt clause in the Assignment dated 7th February 1979 which was in this form :-

" RECEIVED on the day and year first above written of and from the Purchaser the sum of FOUR HUNDRED AND FIFTY SEVEN THOUSAND DOLLARS being the consideration money above expressed to be paid by the Purchaser to the Vendor.

WITNESS :-

12. Mr. Chow submitted that this was a slightly unusual receipt clause as it appeared that the Purchaser had paid all of the purchase moneys rather than simply the balance of the purchase moneys payable after payment of the deposit.

13. I regret that I do not think that this assists the Defendant. There is no indication as to what was the source of the funds.

14. Also I regret that I do not consider that the Defendant can place reliance upon the fact that the Plaintiff would be a purchaser for value without notice if he proceeded with the purchase. Clearly it is incumbent upon a prudent purchaser to make inquiries before purchasing a property and it was clearly evident from the title being deduced by the Defendant that it was dependent upon this Nomination. This would constitute notice.

15. I also regret that I do not think that reliance could be placed upon the Limitation Ordinance Cap. 347. I agree with Mr. Wong that had there been a fraudulent breach of trust time would not run.

16. Having regard to the requirements which have to be adhered to by a Vendor in deducing a good title to the property I do not consider that the requisition which I referred to at the commencement of this judgment has been satisfactorily been answered. Accordingly, I would not be prepared to make a declaration in the form sought by the Defendant in the amended paragraph 7 of the Originating Summons.

17. I would be disposed to make declarations 1 - 6 in the Originating Summons. I am told that the parties have agreed that I should make no order for costs. I am indebted to both counsel for this assistance I received.