RE LEUNG TAK KEUNG EAGLE

HCMP 572/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 572 OF 2013

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J U D G M E N T

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1. This is an application for a vesting order of land. Since this is an ex parte application, the court will have to feel sure that it should be allowed on such basis.

2. I have considered that pursuant to section 20 of the Trustee Ordinance, Cap 29 (“the Ordinance”), the passing of the trustee simply means that her power as trustee over the Property would devolve into the trustee’s personal representative.  However the affirmation evidence suggests that in fact no such person as personal representative of the deceased trustee is known or could be located.  As a matter of fact, the trustee was the mother of the Applicant and therefore the Applicant would be in a position to say that.

3. I take into account the wide wordings of section 45(e) of the Ordinance:

“In any of the following cases, namely-

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(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;

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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 ……[Proviso inapplicable to the present case]”

4. I am satisfied that the court is in a position to grant the order as requested in the circumstances of the present case.

5. In any event, section 55(e) provides for the venue for anyone subsequently coming forward to seek to challenge the order being sought and made; and even to seek reconveyance of the Property under the order:

“Where a vesting order is made as to any land under this Ordinance founded on an allegation of any of the following matters namely –

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(e) that any trustee……has died intestate without leaving a person beneficially interested under the intestacy or has died and it is not known who is his personal representative or the person interest,

the fact that the order has been so made shall be conclusive evidence of the matter so alleged in any court upon any question as to the validity of the order; but this section does not prevent the court from directing a reconveyance or surrender or the payment of costs occasioned by any such order if improperly obtained.”

6. In the circumstances, I will give an order in terms of the originating summons.