LAM CHUK CHING v. ZHENG NAN HUA

HCA 2359/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2359 OF 2000

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J U D G M E N T

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1. This is an application by the Plaintiff under Order 13 Rule 6 and Order 19 Rule 7 of the Rules of the High Court for an order that as no Notice of Intention to Defend has been given by the Defendant, judgment should be entered for the Plaintiff against the Defendant for (1) a declaration that the Plaintiff is the sole beneficial owner of the property known as Flat B, 8th Floor, Tower 18 (Hoi Fai Mansion) Riviera Gardens, Nos. 2-12 Yi Lok Street, Tsuen Wan, New Territories, Hong Kong ("the Property"); and (2) an order directing the Defendant to execute all necessary instruments for assigning or vesting the legal title of the Property to the Plaintiff, failing which the same are to be executed by the Registrar of the High Court under Section 25A of the High Court Ordinance, Cap. 4.

2. The writ herein was issued on 7 March 2000. This application by summons was taken out on 3 April 2000.

3. The evidence before me may be summarised as follows.

4. The Plaintiff and the Defendant were married in Hong Kong on 14 July 1992. Their marriage was annulled by the court in Singapore on 3 September 1999. In 1993, the Plaintiff purchased the Property and took an assignment in the joint names of herself and the Defendant, who was then her husband.

5. The purchase price was HK$2,530,000.00. The Plaintiff provided out of her own funds a total of HK$830,000.00. The balance was borrowed from a bank with a mortgage on the Property. The Plaintiff had also paid out of her own funds the stamp duty, legal costs, and decoration expenses in the approximate sum of HK$450,000.00. Throughout, the Plaintiff was solely responsible for making payment for the mortgage loan and all utility charges and outgoings of the Property.

6. According to the Plaintiff, the Property was registered in the joint names of herself and the Defendant because she wanted to ensure that the Defendant was to have a place to stay with her, as she was then married to the Defendant. The Plaintiff had never intended to make a gift of the Property to the Defendant or had agreed with him to give him a beneficial interest in the Property.

7. Since about August 1993, the Property had been occupied solely by the Plaintiff and the Defendant whenever they were staying in Hong Kong.

8. Since 1998, the Plaintiff had been trying to contact the Defendant with the view of asking the Defendant to execute the necessary document to convey his legal interest in the Property to the Plaintiff. She was unable to contact the Defendant. In November 1998, the Plaintiff petitioned for divorce and as stated above, the marriage was annulled in September 1999.

9. The Plaintiff claims the relief as stated above on the basis that as the provider of the funds for the purchase of the Property, the Defendant holds his interest in the Property on a resulting trust for the Plaintiff.

10. The matter first came before me on 23 June 2000. It was adjourned because the evidence placed before the court was insufficient. The matter was adjourned again on 18 October 2000 because I was not satisfied with the mode of service of the writ on the Defendant.

11. On 6 November 2000, the Plaintiff obtained an order for substituted service of the writ on the Defendant by advertisement in a newspaper in Hong Kong. That order has been complied with.

12. I am satisfied it is appropriate in the circumstances to make the relief as sought in the summons and to enter judgment in the terms as set out therein. I therefore grant an order in those terms.