IP CHEN MING aka CHEN MING IP v. IP CHEU KEUNG aka CHEN (or CHEU) KEUNG IP AND ANOTHER

HCMP 367/2023

[2023] HKCFI 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 367 OF 2023

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REASONS FOR

DECISION

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INTRODUCTION

1.  This is an ex parte application by the 1^st to 3^rd Applicants (by way of ex parte Originating Summons) for an order under section 45 of the Trustee Ordinance (Cap. 29) (“Ordinance”) to vest the subject properties (“Properties”) in the 1^st to 3^rd Applicants as tenants in common in equal shares.

BACKGROUND

2.  The application is supported by the Affirmation of the Applicants.

3.  The Applicants’ father (“Father”) was the beneficial owner of the Properties.  He passed away on 18 June 1980.  On 3 June 1996, the North District Officer gave approval for the Applicants to succeed to their father’s estate with their grandmother, Yau Yi (or Yee) Kiu (“Madam Yau”), as trustee pursuant to Approval of Succession dated 3 June 1996 and registered by Memorial No. N366905.  The said Approval of Succession provided that the beneficial ownership of the Properties shall be vested in the Applicants as tenants in common in equal shares with Madam Yau as trustee, as she was then the trustee of the Father in respect of the Properties prior to the Father’s death.

4.  Madam Yau passed away on 19 January 2006.  Notwithstanding that, the Properties remain held by Madam Yau as trustee on record despite her death.

5.  The Applicants have adduced evidence that no grant of letters of administration or probate in respect of Madam Yau’s estate has been issued to their knowledge.  The Applicants’ solicitors have conducted a probate search in the Probate Registry of the High Court which confirms that no such grant of letters of administration or probate in respect of Madam Yau’s estate has been issued.

ANALYSIS

6.  Section 45 of the Ordinance stipulates as follows:

“45. Vesting Orders

In any of the following cases, namely-

…

(e) 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;

…

the court may make an order (in this Ordinance called a vesting 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 …”

7.  On the evidence, I am satisfied that the circumstances of this case falls within section 45(e) of the Ordinance, in that there is no personal representative of Madam Yau, being the trustee (until her death) holding the Properties on trust for the Applicants.

8.  I am also satisfied in the circumstances that there is no one to be served with the Originating Summons and that it would be proper for the application to proceed by way of an ex parte summons.

9.  In the premises, I agree that the Properties should be vested in the Applicants.

10.  Accordingly, I order under section 45 of the Ordinance that the Properties be vested in the Applicants as tenants in common in equal shares.

11.  I make no order as to costs.