RE HO SIU KAY AND OTHERS

HCMP 1065/2021

[2021] HKCFI 2877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1065 OF 2021

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REASONS FOR JUDGMENT

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1.  This is an application for a vesting order.

2.  The facts are simple, and not in dispute. Yeung Fung Lan was the mother of the Applicants.  She held the said Property on trust for the Applicants. In other words, she was the trustee whereas the Applicants were and are the beneficiaries of the said Property.  She died on 17 November 2014. No personal representative of her estate has ever been appointed.

3.  Section 45 of the Trustee Ordinance (Cap 29) provides that:

“In any of the following cases, namely—

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(e) where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land;

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the court may make an order (in this Ordinance called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct…”

4.  As the trustee has died and there is no other interested party, I am satisfied that this application may proceed by way of an ex parte summons (Re All that piece or parcel of ground situate lying and being at The Remaining Portion of Lot No. 1168 in Demarcation District No 124, Yuen Long, New Territories, Hong Kong, HCMP6021/2001 (7 December 2001); Re Fung Kwok Fai and Fung Tak Yan, HCMP761/2012 (2 May 2012)).

5.  It is also also clear from the said precedents that the Court has the discretion to vest the property directly in the beneficiary rather than a new trustee to be appointed (see also Re Lee Yang, Shiu Chuen Joyce [2021] HKCFI 2468, §16).

6.  There is a clear case where the Court should grant a vesting order. Hence, at the end of the hearing I made an order in terms of §§2-3 of the Originating Summons. However, I do not think it is appropriate or necessary to seek an order to remove Yeung Fung Lan as the trustee as sought in §1 of the Originating Summons.