RE GOVERNMENT OF HONG KONG

1987, No. MP 2133

IN THE HIGH COURT OF HONG KONG

HEADNOTE

Land in the New Territories was transferred to a minor. A trustee for the minor was appointed by the Land Office under section 18 of the New Territories Ordinance, Chapter 97, the land therefore vesting in the trustee pursuant to the provisions of that section. The minor attained the age of majority and the trustee died. The minor sought a vesting order.

HELD : Making the order, that to avoid waste of time and money, it would be a good thing of the Land Office were to revert to its former practice of deleting reference to the trusteeship on the register on proof of the attainment of the age of majority by the minor and of the death of his trustee, instead of compelling the minor to apply to the High Court for a vesting order. (Observations on the need for revision of the New Territories Ordinance and on the absurd length of the title to the proceedings.)

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JUDGMENT

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1. In these proceedings, which are brought by way of an ex-parte originating summons, the applicant claims a vesting order in relation to the items of property mentioned in the title to the proceedings ("the property"). The applicant became entitled to his interest in the property while he was a minor. The property was situated in the New Territories. The interest of the minor was subject to registration in the relevant district land office. In accordance with the provisions of section 18 of the New Territories Ordinance, Chapter 97, the mother of the minor was registered as his trustee. The minor attained the age of 21 on 25th July 1968, but nothing was done during the lifetime of his mother to terminate her trusteeship. She died intestate on 10th January 1982. No grant of representation to her estate has been made.

2. This is one of a number of applications which have recently come before me in which the Court has been asked to make a vesting order in relation to property in the New Territories.

3. In all these cases, the facts have been similar. Land is transferred to an owner who is a minor, or to a number of co-owners including a minor or minors. A trustee for the minor is appointed by the land office under section 18 of the New Territories Ordinance, and the land vests in the trustee pursuant to that section. Two events then happen (the order of the events is immaterial). The minor attains the age of majority and the trustee dies. In these circumstances, the former minor, if he can produce evidence of his attainment of the age of majority and of the death of his trustee, is in a position, without more, to satisfy the land officer that the trusteeship has terminated. In several of these cases, Counsel, or the Solicitor, for the applicant has told me that, until a few years ago, it was the practice of the land office, on proof of the minor's attainment of the age of majority and of the death of the trustee, to delete all reference to the trusteeship from the register. This obviously sensible practice is, for some reason, no longer followed. Any applicant is told that it is necessary for him to apply to the High Court for a vesting order.

4. I have been unable to discover the reason for this change of practice. It is, or should be, quite unnecessary to apply to the High Court to perform the simple and uncontroversial administrative act of registering the determination of the trusteeship. (It is possible that there is a need to amend section 18 to provide that on production of evidence of the attainment by the minor of the age of majority and of the death of his trustee, determination of the trusteeship shall be registered by the land officer and that the land shall be divested from the deceased trustee and shall vest in the former minor.)

5. I understand on enquiry that the Law Reform Commission has recently been examining the law relating to intestate succession and has considered also the question of trustees of minors. It may be that what is really required is a revision of part II of the New Territories Ordinance dealing with land, which seems to be significantly out-of-date.

6. In the meantime, the new practice is leading to a waste of time and money for all those who are being required to apply to the High Court to perform an act which can and should perfectly well be performed by the land office. In my opinion, it would be a good thing if the land office were to return to the former practice, pending a more complete review of the New Territories Ordinance.

7. One further point. I wish to draw attention in this case, as I have had occasion to do in other cases, to the absurd length of the title to these proceedings. It is quite unnecessary to follow the archaic practice of referring to the subject matter of the proceedings by the use of unnecessary verbiage. A short description of the property affected is quite sufficient.