THE INCORPORATED OWNERS OF NO.5 VILLAGE TERRACE v. SECRETARY OF JUSTICE OF THE HKSAR

HCMP 1218/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1218 OF 2007

-------------------

-------------------

-------------------

______________________

J U D G M E N T

______________________

1. This is an application by the plaintiff for an order under section 45 of the Trustee Ordinance, Cap. 29 that the property, the subject matter of these proceedings, now standing in the name of Lerroy Development Company Limited be vested in the plaintiff. 

2. Mr Melvin Wong, for the plaintiff, in his helpful submissions has outlined the matter to me and has referred me to the relevant evidence. 

3. Ms Cheung, for the defendant, has confirmed that the parties have come to terms and draft minutes of order signed by counsel have been submitted to me. 

4. Nevertheless, as this is an application for a declaration the court needs to be satisfied that it is proper to make the declaration sought.

5. The property in question is 1/1255 share in respect of a parcel of land registered in the Land Registry as “THE REMAINING PORTION OF SUB-SECTION 1 OF SECTION A OF INLAND LOT NO. 2270”, upon which a residential building known as “Yee Yuen” was built. 

6. At all times the outstanding share namely, the 1/1255 share was registered in the Land Registry in the name of Lerroy Development Company Limited who was the developer and first owner of Yee Yuen Building. 

7. According to the Deed of Mutual Covenant all the units in the building were allocated shares and the remaining parts of the land were allocated the remaining 1/1255 share.  That is clear on the evidence before me.  The remaining parts of the land comprise two strips of land adjoining the Yee Yuen Building which has been described as “Land A” and “Land B” in the papers before me.  These have at all times been used as communal passageways by the co-owners of the Yee Yuen Building as well as used by the neighbours. 

8. It is clear on the evidence before me that it was always the intention of Lerroy Development Company Limited to assign the outstanding share to the owners of Yee Yuen Building.  However, after the sale of all the residential units in the building it appears that Lerroy Development Company Limited omitted to transfer the outstanding share.  As the evidence shows, Lerroy Development Company Limited was dissolved on a voluntary winding-up in about May 1992.

9. I am satisfied on the evidence that Lerroy Development Company Limited never intended to hold the outstanding share which was attached to the communal passageways for its own exclusive use and that it had intended to assign in due course the same to be held for the benefit of all the co-owners of Yee Yuen Building.

10. In the circumstances I am satisfied that the declaration sought is a proper one to be made as well as the order sought in the draft minutes of order.  In the circumstances I make an order in terms of the draft minutes of order signed by counsel and handed up to the court.