RE SIU MAN YEE

HCMP 1645/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1645 OF 2015

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JUDGMENT
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1. This is an ex parte originating summons issued by the applicant in respect of a property known as all those 5 equal undivided 172^ndparts or shares of and in ALL THOSE piece or parcels of ground registered in the Land Office as NEW KOWLOON INLAND LOT NO.3981 and THE REMAINING PORTION OF NEW KOWLOON INLAND LOT NO.3648 (Flat D on the second floor of Sing Yick Building, Nos. 75 and 77 Fuk Lo Tsun Road, Kowloon) (“the Property”).

2. The applicant applies for the rectification of a Deed of Gift dated 13 May 1991 (registered in the Land Registry by Memorial No. UB4841714) in relation to the interest in the Property.  The Donor was Madam Tse Ying.  The applicant was the adopted child of the Donor and the Donee described in the Deed of Gift.  Madam Tse Ying has since died and the applicant, being the only child of the family, became the administratrix of the estate of Madam Tse Ying.  Since no other persons are interested in these proceedings, the application has been made by way of ex parte originating summons.

3. It is clear from the reading of Clause 1 of the Deed of Gift that the Donor intended to assign her interest in the Property to herself and the applicant as Joint Tenants.  However, after the word “Assigns to”, the draftman omitted to add the words “the Donor and”.  It only referred to assigning to the “Donee”.  This omission was a clear mistake wholly repugnant to the manifested intention of creating a co-ownership by use of the words “Joint Tenants”.  There are also superfluous words of “one moiety or half part or share of and in” inserted prior to the words “the Property”.  These superfluous words would be apt for creating a tenancy-in-common but would be wholly repugnant to the clear reference to the subsequent words “To Hold the same unto the Donor and Donee as Joint Tenants”.

4. The manifested intention of creating a co-ownership between the Donor and Donee is also manifested in Clause 2.  The intention of creating a joint tenancy is also reflected in Recital 2 which stated “the Donor is desirous of assigning to herself and the Donee the Property by way of gift as Joint Tenants...”.

5. I am satisfied, on the authorities cited to me by counsel for the Applicant including McGhee, Snell’s Equity, 33^rd edition at paras. 16-001 and 16-003 that the Court can and should exercise its equitable power to rectify a written instrument when there is manifested mistake in expressing the true intention and agreement between the parties.

6. By reason of the doctrine of relation back in relation to the effect of the court ordering rectification, it is unnecessary to deal with further points raised in the Skeleton Arguments of Counsel for the Applicant on Strong v. Bird (1874) L.R. 18 Eq. 315and Re Gonin [1979] Ch. 16.

7. In the circumstances, I order the rectification of the said Deed of Gift in terms of the draft order submitted as amended and initialed by me.  For the avoidance of doubt, such rectification takes effect from the date of execution of the said Deed of Gift.