MOK CHI KEUNG v. MOK CHI HOI

HCMP 5255/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5255 OF 2002

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D E C I S I O N

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Introduction

1. This is the Plaintiff's application for a vesting order against the Defendant as trustee in respect of trust property vested in the Defendant.

2. The Plaintiff and the Defendant are brothers, born on 10 September 1967 and 17 October 1955 respectively. The Plaintiff was the youngest member of the family. In early 1978, when the Plaintiff and the Defendant were respectively 11 and 23 years old, their mother contracted liver cancer. She was the owner of the property at Flat G, 16th Floor, Manning Theatre Building at 57 Yuk Wah Crescent, Kowloon ("the Property"). By an indenture dated 21 January 1978, she assigned, by way of gift, all her estate, right, title and interest in the Property to the Defendant upon trust for the Plaintiff. The mother died later that year. The Plaintiff lived with his father in the Property while the other siblings including the Defendant lived in other accommodation. The father kept the title deeds of the Property until he passed away in 2000 when they were reduced to the Plaintiff's possession.

3. In about May 2002, the Plaintiff, being of full age and majority, requested the Defendant to convey the Property to him as beneficiary. The Defendant refused and demanded a half share of the Property or payment equivalent to half of the current value of the Property. On 13 August 2002, the Plaintiff's solicitors wrote to the Defendant requesting him to convey the Property to the Plaintiff. The Defendant did not respond. On 30 August 2002, the solicitors' clerk telephoned the Defendant and requested him to attend the solicitors' office to execute the necessary conveyances in relation to vesting the Property in the Plaintiff. The Defendant refused. Later the Plaintiff made another request to the Defendant to convey the Property to him. The Defendant refused and repeated his demand for a half share of the Property or its current value. Then the Plaintiff instituted the present proceedings.

Service of the Originating Summons and Notice of hearing

4. On 20 December 2002, the Plaintiff's solicitors served on the Defendant a sealed copy of the Originating Summons and the Plaintiff's affirmation in support ("the Proceedings Documents") by registered post to the Defendant's last known address. On 14 January 2003, the Plaintiff's solicitors served on the Defendant a copy of the Notice of Appointment to hear Originating Summons. On 16 January 2003, the Proceedings Documents were returned unclaimed. On 20 January, a clerk of the Plaintiff's solicitors effected service on the Defendant by inserting an envelope containing the Proceedings Documents and Notice of Appointment to hear Originating Summons through the letter box of the Defendant at his address. Then he pressed the door bell to verify if the Defendant was residing at that address. He was informed by a woman therein that the Defendant was not there as he had gone to work.

5. I am satisfied that the Defendant was residing at the address where the Proceedings Documents and Notice were served. Hence, the service through the letter box in accordance with Order 10 rule 2(b) of the Rules of High Court which is applicable to service of Originating Summons by virtue of Order 10 rule 5 was effective.

Proceedings in the absence of the Defendant

6. I am satisfied that the Proceedings Documents and Notice of hearing have been effectively served on the Defendant and he had adequate notice of the hearing. The application is a very straight forward one. The Defendant offered no consideration for the Property. The deed which vested the Defendant with title of the Property stated unequivocally that the Property was assigned to him as trustee upon trust for the Plaintiff as beneficiary. He duly signed, sealed and delivered the deed in the presence of his solicitors after the same had been interpreted to him. Now that the Plaintiff has come of age, the Defendant has hardly any defence to the Plaintiff's claim. He was informed time and again by the Plaintiff and the Plaintiff's solicitors of the request for assigning the Property to the Plaintiff. He refused to do so. Yet he failed to appear to state his defence. Having regard to all the circumstances, it would be expedient to proceed with the hearing of the application in the absence of the Defendant than to waste costs on any further adjournment and to bring the matter to the conclusion in accordance with the intention of the mother and the obligation which the Defendant had undertaken.

Conclusion

7. Accordingly, I make a vesting order that the Property be transferred to the Plaintiff forthwith. The Defendant has no defence to the claim. His refusal to transfer the Property to the Plaintiff was a willful breach of trust which resulted in the present proceedings having to be instituted and costs unnecessarily incurred. I therefore order that he shall pay the Plaintiff's costs to be taxed on an indemnity basis.