HCMP 1811/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1811 OF 2008
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IN THE MATTER of an application under the Trustee Ordinance, Cap. 29
and
IN THE MATTER of ALL THAT one equal undivided 22nd part or share of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as THE REMAINING PORTION OF KOWLOON INLAND LOT NO. 3764 and THE REMAINING PORTION OF KOWLOON INLAND LOT NO. 3765 And of and in the messuages erections and buildings thereon now known as NOS. 47 and 48 HAIPHONG ROAD TOGETHER with the exclusive right and privilege to hold use occupy and enjoy ALL THAT the EIGHTH FLOOR of the said NO. 47 HAIPHONG ROAD
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BETWEEN
HONG KONG AND KOWLOON TAILORING
Applicant
CONTRACTORS ASSOCIATION LIMITED
and
LAU CHOI MING and SUEN PUI CHEUNG representing THE HONG KONG AND KOWLOON TAILORING CONTRACTORS’ ASSOCIATION
Respondent
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Before: Hon Sakhrani J in Chambers
Date of Hearing: 23 December 2008
Date of Judgment: 23 December 2008
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J U D G M E N T
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1. By the re-amended originating summons the applicant seeks declarations as set out in paragraphs 1 and 2. The first is a declaration that the property described in the originating summons (“the property”) has been properly vested in the applicant on 11 March 1992 by the assignment of the property from Kwok Ho Shuen (“Kwok”) as the assignor and the applicant as the assignee. The second declaration is a declaration that the members of an unincorporated association known as the Hong Kong and Kowloon Tailoring Contractors’ Association has no subsisting interest whether legal or equitable, whether severally or collectively in the property.
2. I am satisfied on the evidence before the Court as set out in the affirmations of Kwok, Lau Choi Ming and Suen Pui Cheung that the applicant is entitled to the declarations that it seeks.
3. These proceedings concern the property described in the originating summons being the 8th floor of 47 Haiphong Road. The property was purchased with funds of the Hong Kong and Kowloon Tailoring Contractors’ Association (“the association”) an unincorporated body which was founded in 1968.
4. On the evidence before me I am satisfied that the property was purchased with funds belonging to the association and that the property was assigned to 5 trustees including Kwok as joint tenants by the assignment dated 28 January 1969.
5. By a declaration of trust also made on 28 January 1969 the 5 trustees declared themselves to be trustees holding the property on trust for and on behalf of the association, its successors and assigns.
6. In June 1989 it was proposed by the members of the association that a company be set up to take over the affairs and assets of the association as well as to hold the property. There was, however, no written record of the resolution made by the members of the association.
7. By August 1989 only 1 trustee out of the 5 trustees survived namely, Kwok. The other 4 trustees had passed away by then. Thus, Kwok was the surviving joint tenant and surviving trustee.
8. The Hong Kong and Kowloon Tailoring Contractors Association Limited (“the company”) was incorporated on 30 March 1990.
9. Although there was no written record showing the relationship between the association and the company, it is clear on the evidence that the members of the association had proceeded on the basis that the company would take over the affairs and assets of the association.
10. On 23 June 1990 at an annual meeting of the association the management committee reported to the members of the association that the company had been formed and the members were asked to consider and discuss the proposal for the company to take over the assets and the affairs of the association as well as to have the property transferred to the company. All the members attending the meeting unanimously approved and voted for the proposals including the one for the transfer of the property by the association to the company. Resolutions were also passed by the members that the existing members of the association would become the members of the company and for confirming the appointment of the first Board of Directors of the company. There was also no written record of the resolutions that were passed at that meeting.
11. The property was assigned from the association to the company when Kwok as the surviving trustee assigned the property to the company by an assignment dated 11 March 1992.
12. The company wishes to donate the property to a charity the Tung Wah Group of Hospitals.
13. A notice of general meeting was sent to all the existing members of the association on 13 May 2008. The purpose of the meeting was to ratify, approve and confirm the setting up of the company as well as to ratify, approve and confirm the transfer of the property to the company at nil monetary consideration.
14. On 18 June 2008 the members of the association met. A resolution was passed to confirm the setting up of the company and the validity of the assignment to the company from Kwok, the sole surviving trustee.
15. It is clear on the evidence that all along both the association and the company had conducted themselves on the footing that the company was and is beneficially entitled to the property.
16. By an order of Master de Souza made on 25 November 2008 Lau Choi Ming and Suen Pui Cheung were appointed as the representatives of the association and they are the respondents to this application.
17. The respondents support the order sought by the applicant. As I have said, I am satisfied on the evidence that the applicant is entitled to the declarations that it seeks and I make an order in terms of the declarations sought in paragraphs 1 and 2 of the re-amended originating summons. I will make no order as to costs.
(Arjan H Sakhrani)
Judge of the Court of First Instance
Miss Vanessa Kwok, instructed by Messrs Lee Chan Cheng, for the Applicant
Miss Verna Lui, instructed by Messrs Lo and Lo, for the Respondent