RE CHAN YUK LEUNG

HCMP 13/2019

[2019] HKCFI 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 13 OF 2019

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JUDGMENT

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1. This is an application by the ex parte Originating Summons taken out by the applicant for a vesting order pursuing to section 45 of the Trustee Ordinance, Cap 29 (“the Ordinance”). This is in relation to the property known as ALL THAT one equal undivided third part or share of and in ALL THAT piece or parcel of ground situate at Cheung Chau, New Territories and registered in the Land Registry as Cheung Chau Lot No 1269 (G/F, No 192 Tai Tsoi Yuen Road, Cheung Chau, New Territories) (“the Property”).

2. The applicant is the son of one Chan Hon (“the father”) and one Kwok Mui (“the mother”).  The applicant has one younger sister Chan Yuk Tai and one younger brother Chan Yuk Ming.  The father passed away on 8 December 1997.  The mother passed away on 19 April 2011.

3. By an assignment dated 3 September 1976 the mother purchased the Property.  It is the applicant’s case, as set out in his affirmation, that the purchase of the Property was on his behalf as he was below the age of 21 at the time.  He was only 19 years old at that time.  He asked his mother to act as his trustee to purchase and to hold the Property on trust for herself and the applicant as joint tenants.

4. On the same day, 3 September 1976, the mother executed a deed of declaration of trust.  This has been exhibited to the applicant’s affirmation.  This is a clear declaration of trust executed by the mother whereby she declared that she stands possessed of the Property with the applicant as joint tenants upon trust for herself and the applicant. 

5. The mother had not dealt with the trusteeship before her death on 19 April 2011. 

6. On 9 November 2018 the applicant’s solicitors made an enquiry with the Probate Registry and they were unable to find any grant of probate or letters of administration that had been issued in relation to the estate of the mother. 

7. There is also evidence before me that the applicant’s siblings have been notified of this application.  They have filed affirmations stating that they have no objection to this application. 

8. Section 45 of the Ordinance provides that the Court may make a vesting order in any of the cases set out therein.  Section 45(e) provides that:

“ where there is no personal representative of a 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”.

9. On the evidence before me I am satisfied that the applicant is entitled to the order he seeks.

10. I make an order in terms of the Originating Summons.  A draft of the order has been handed up to me and I make the order in the terms of the draft order handed up to me as amended.