LAM HONG CHING ANDY v. WONG KAM TONG

HCA 1144/2006 &
HCA 2320/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1144 OF 2006

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1.  The application is an application in aid of the execution of the judgment given by Mr. Recorder Shieh SC.

2.  After a trial on the merits, Mr. Recorder Shieh SC gave judgment on 12 October 2009 in favour of the plaintiff Lam Hong Ching Andy the executor of the estate of Sung Man Po who is the plaintiff in HCA 1144 of 2006 and who is also the defendant in HCA 2320 of 2007. 

3.  It was adjudged by the Recorder that the action in HCA 2320 of 2007 be dismissed with costs.  In relation to HCA 1144 of 2006, the Recorder granted a declaration that the defendant Wong Kam Tong held the property described therein as trustee on trust for Sung Man Po the deceased since 31 October 1997.  He ordered that the defendant do transfer the legal title of the property to the plaintiff free from encumbrance within 7 days of the judgment.  He also ordered that the defendant do, at or prior to the transfer of legal title, discharge all outstanding indebtedness secured by the mortgage under the memorial number set out therein and procure the release of the mortgage.

4.  It was found by the Recorder that the defendant had acted in breach of trust by taking out the mortgage with HSBC.  It was also ordered that in default of the defendant’s compliance with the orders made by the Recorder the plaintiff be at liberty to apply for directions for damages to be assessed before a master for the defendant’s breach of trust.  Costs were also ordered in the plaintiff’s favour and liberty to apply in the implementation of the order was also given.

5.  By a letter dated 31 May 2010 sent to the defendant by the former solicitors of the plaintiff enclosing a draft assignment, the defendant was requested to sign and execute an assignment for the transfer of the legal title of the property in order to comply with the judgment given by the Recorder.  No response was received from the defendant in respect of the letter nor has the letter been returned to the solicitors through the post. 

6.  I am satisfied that the defendant has refused and failed to transfer the legal title of the property to the plaintiff.  In the circumstances, I am satisfied that the court ought to make a vesting order under section 45(f) of the Trustee Ordinance Cap. 29. 

7.  There can be no doubt from the findings of the Recorder that the defendant had acted in breach of trust by taking out the mortgage with HSBC.

8.  The defendant was ordered to transfer the legal title free of encumbrances within 7 days of the judgment.  That he has failed to do. 

9.  On the evidence before me the plaintiff has paid monies to redeem the mortgage and has also paid unpaid management fee and government rent.  The total sum that the plaintiff has expended is the sum of HK$543,604.06 as set out in the affirmation of Tang Yiu Wing. 

10.  I am satisfied that the defendant should be ordered to pay by way of interim payment of damages the said sum to the plaintiff. 

11.  I make an order that the defendant do within 14 days pay the said sum to the plaintiff as interim payment of damages.

12.  I make the vesting order in the terms of the draft as amended in the course of the submissions. 

13.  I also make an order that the costs of the application be paid by the defendant to the plaintiff, such costs to be taxed if not agreed.