KAN KIU CHOR v. FUNG SHU FUN, the Administratrix of TANG CHUEN, deceased

HCA 1902/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1902 OF 2015

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D E C I S I O N

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Introduction

1. This is the hearing of the plaintiff’s summons dated 9 March 2016 for default judgment. The summons was taken out under Order 19 rule 7 of the Rules of the High Court. The ground is that the defendant failed to serve a defence.

2. The writ of summons endorsed with the statement of claim was served on the defendant on 24 August 2015. On 14September 2015, the defendant, represented by Messrs C W Chan & Co, Solicitors, filed an acknowledgement of service of writ of summons stating that the defendant does not intend to contest the proceedings.

3. Mr Wong, appearing this morning for the defendant, informs me that the defendant consents to the order sought by today’s summons.

Background

4. The plaintiff is, and was at all material times, in possession of a property located at Flat No 4 on 31^st Floor of Block A, Kam Tai Court, 33 Ning Tai Road, Shatin, New Territories. The defendant is the lawful ‘kit fat’ widow of Mr Tang Chuen, who died intestate on 19 April 2003. Letters of administration were granted to the defendant by the Court of First Instance of the High Court of the Hong Kong Special Administrative Region on the 25^th day of July 2003, by which the defendant became the paper title owner of the property registered in the Land Registry.

5. The deceased and the defendant have five daughters, including Madam Tang Yuk-kwan, also known as Alice Tang. The plaintiff is, and was at all material times, married to Alice Tang.

6. The plaintiff’s claim for declaratory relief is on the basis that the defendant holds the property on trust for the plaintiff pursuant to a common intention constructive trust and/or resulting trust as pleaded in the statement of claim.

7. Mr Wong, for the defendant, confirmed this morning that the defendant indeed holds the property on trust for the plaintiff.

8. The property was acquired in the name of the deceased upon the deceased surrendering his old public rental housing flat to the Hong Kong Housing Authority. However, due to the deceased’s advanced age at the time the property was acquired, it was a common intention between the plaintiff and the deceased that:

(1) upon surrendering the old public rental housing flat, the deceased and the defendant, that is the deceased’s wife, would, and did, move in and live with their daughters in Tsing Yi;

(2) the property would be acquired as a family home for the plaintiff and his family; and

(3) the plaintiff, instead of the deceased, would be the beneficial owner of the property.

9. Pursuant to such common intention, the plaintiff financed the purchase of the property and subsequent mortgage repayments as well as the outgoings in relation to the property, such as management fees, rates, government rates, electricity, water and gas.

Relevant Legal Principles

10. In an application for default judgment, the court has power to give judgment according to the pleadings alone. It is not necessary on the hearing of the summons to prove the case by evidence (see Hong Kong Civil Procedure 2016, Vol 1, paragraph 19/7/11).

11. In the statement of claim, the plaintiff seeks a relief for:

“Declaration that the property situated at Flat No 4 on 31st Floor of Block A, Kam Tai Court, 33 Ning Tai Road, Statin, New Territories, is held by the defendant for and on behalf of and as trustee of the plaintiff who is entitled to the sole beneficial ownership therein.”

12. It is not the practice of the court to make a declaration of right in default of defence, or on admissions or by consent without trial. However, this is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled (see Hong Kong Civil Procedure 2016, Vol 1, paragraph 19/7/14).

13. When a declaratory relief is sought, the court will scrutinise the application for default judgment carefully and does not hastily grant the relief sought (see Hong Kong Civil Procedure 2016, Vol 1, paragraph 19/7/20).

Disposition

14. In my view, the present case is a suitable case for the court to depart from the normal practice and granting the declaration sought would do the fullest justice to the plaintiff for the following reasons:

(1) The defendant has filed an acknowledgement of service and confirms that she does not intend to contest the plaintiff’s claim.

(2) The defendant does not contest this summons.

(3) All the evidence in support of the plaintiff’s claim is available and has been filed in the affirmation of Kan Kiu Chor dated 9March 2016. A trial would put unnecessary burden on the court’s resources and incur unnecessary costs for the parties.

(4) A large number of documents evidencing that the plaintiff financed the purchase of the property and subsequent mortgage repayments as well as outgoings has been provided.

(5) The plaintiff has a genuine need for declaratory relief and justice would not be done if such relief was denied.

15. Accordingly, I make an order in terms of the plaintiff’s summons dated 9 March 2016.

16. I make a declaration that the property situated at Flat No 4 on 31^st Floor of Block A, Kam Tai Court, 33 Ning Tai Road, Shatin, New Territories, is held by the defendant for and on behalf of and as trustee of the plaintiff who is entitled to the sole beneficial ownership therein.

17. I make an order that the defendant do procure and take all necessary steps for transfer and assignment of the property to the plaintiff.