RE LI WING PING AND ANOTHER

HCMP 532/2019

[2019] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 532 OF 2019

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D E C I S I O N

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1.  The 1st applicant and the 2nd applicant, the latter now deceased and represented by the administrator of his estate, are the beneficial owners of the property in question by virtue of a trust established by way of assignment back in 1962.

2.  The applicants are natural brothers.  By the assignment dated 18 July 1962, Madams Lam-ha and Ma Kit-man became the registered joint tenants of the property as trustees to hold the same on trust for the two applicants as tenants in equal shares.

3.  Lam passed away in 1983.  Ma passed away in 1993.  There is no record of grant of administration of estate of the deceased trustees. 

4.  What triggered this application was apparently the offer from the Urban Renewal Authority for the acquisition of the building in which the property is situated.  The applicants, as the beneficial owners of the property under the trust, need to acquire the proper locus as the legal owners of the property in order to enter into any deal with the Authority.

5.  On the basis of the affidavit evidence, I accept the proof of identity of the applicants.  I accept the tracing of the paternal relationship between the applicants and the deceased trustees as well as the background of the 1962 assignment.

6.  I accept it is now impracticable for the applicants to seek to obtain grant of administration of the estates of the deceased trustees so as to ascend to themselves the legal interest in the property in the circumstances of the case.

7.  I accept the explanation and the evidence in respect of the applicants’ connection with the property, their occupation of the property as well as their involvement in the management of the property over the years.

8.  Considering the history of the matter, it is highly likely that the original trust established in 1962, for the benefit of the two applicants, have served its purpose by now.

9.  I have considered and I find that the chance of any person in the family of the deceased trustees who may be entitled to step into their shoes as trustees and be interested in this application to be minimal.  In the circumstances, I also see no concern about allowing the applicants to proceed ex-parte.

10.  Section 45 of the Trustee Ordinance Cap. 29 empowers the courts to grant vesting orders of land.  Subsection (1)(e) provides that:

“Where there is no personal representative of the 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 has discretion to make an 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.”

11.  All the circumstances considered, I am satisfied that the order vesting the legal interest in the property in the applicants should be made. 

12.  I make an order in terms of paragraphs (1) and (2) of the originating summons. 

13.  As to costs, because this is an ex-parte application, I will make no order.