TO SAN WA AND OTHERS v. TO YING LUN, Deceased

HCMP 6018/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6018 OF 1998

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J U D G M E N T

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1. I have before me an application by an Amended Originating Summons seeking a vesting order in relation to some New Territories land in favour of a series of Plaintiffs. The background is as follows.

2. The evidence shows that the land in question consists of several different lots purchased by Madam Lam Shi in 1936. According to the Memorial registered in the District Office at Tai Po, such land was conveyed to her, but with her husband To Ying Lun as the Trustee. I do not have any trust deed or any express evidence of the terms of the trust before me.

3. There is, however, indirect evidence, in that, subsequently by deed dated 24 January 1999, Lam Shi explains that her husband, the trustee, had died in October 1995 that she is the only beneficiary under the trust and that she wanted at that stage to terminate the trust. I am prepared to accept that it was a bare trust in favour of Lam Shi.

4. After the death of her husband, a series of transactions took place involving the land which had in some cases been further sub-divided. It was, however, recently discovered that these transactions were ineffective because the husband, Mr. To Ying Lun, had died intestate and no trustee or personal representative had been appointed. Accordingly, the legal title to this land remained in the estate of the deceased trustee.

5. I am, however, satisfied that Madam Lam intended to effect the transfers to the subsequent owners of the land. Firstly, this is because, as I have mentioned, she executed deed with a view to terminating her own beneficial interest in the trust. Secondly, there is before the Court a document indicating the consent of all the various parties, including Madam Lam Shi, to the Orders sought by this Originating Summons. Madam Lam Shi is not a party but has indicated in the manner I have described her willingness to divest herself of any beneficial interest in this land.

6. I am also satisfied that the Plaintiffs are the rightful transferees of that interest. In the case of Lung Mei Sing, I have given leave for the filing of an affirmation to exhibit a power of attorney which makes good a particular gap in the chain of title. I will make the Orders sought on the undertaking of the Plaintiff to file an affirmation exhibiting the power of attorney, a copy of which has been provided to the Court.

7. I therefore make an Order, as sought in the Amended Originating Summons, that pursuant to Section 45(e) of the Trustee Ordinance, all the legal estates and interests of and in the landed properties described in Schedule 1 to Schedule 6 to the Amended Originating Summons inclusive do respectively vest in the 1st to the 6th Plaintiffs. I should mention that although the Defendant is named as To Ying Lun deceased, his estate is represented by his grandson, To Wai Shing, who appears today by counsel, Mr. Raymond Cheung. He appears pursuant to the order of Master Ho dated 9th February 1999. I will make no order as to costs.