XCHRX YAU YUK TAI v. IP SHUCK PO

HCA10611/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.10611 OF 1996

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J U D G M E N T

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1. The Plaintiff commenced this action on 17 September 1996 against the Defendant claiming that the Defendant has held the suit property on trust for her. This trust is said to have arisen from :

a) the Defendant's request made in August 1994 to the Plaintiff that in consideration of the Plaintiff incurring expenses to rebuilt the suit property, the Plaintiff would become the sole owner of the suit property; and

b) the Plaintiff having incurred expenses in the sum of $708,500 for rebuilding the suit property relying on the said request.

2. According to an affirmation of Ho Pak Wa dated 19 May 1999, the Writ of Summons was served on the Defendant on 17 September 1996 by registered post. No "Acknowledgement of Service" was given by the Defendant. On 4 June 1999, the Plaintiff took out an application pursuant to the Rules of High Court, O.13, r.6, asking for an order in terms of the Summons.

3. That application came before me on 7 July 1999. After hearing Counsel for the Plaintiff, I indicated that the Plaintiff should file evidence regarding the expenses she incurred to rebuild the suit property. The Plaintiff later filed an affirmation dated 11 August 1999. According to the work set out in a Chinese quotation of "Hei Kee Decoration Engineering", what in substance was rebuilding, renovation and improvement work to the suit property was performed by the decorator.

4. Counsel for the Plaintiff relied on the following cases in support of this application :

a) Wakeman v. Mackenzie [1968] 1 WLR 1174;

b) Pascoe v. Turner [1979] 1 WLR 431; and

c) Lui Kam Lau & Another v. Leung Ming Fai [1994] 3 HKC 477.

5. Having considered all the materials before me, I am satisfied that my discretion should be exercised in granting an order in terms of paragraphs 1, 2 and 7 of this application.