WONG MEI LIN v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LAM LEUNG PING, DECEASED

HCA12880/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12880 OF 1999

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J U D G M E N T

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1. This action concerns a property situated at Flat B, 18th Floor, Hang Wan House, No.141 (formerly Nos.137-141) Reclamation Street, Kowloon ("the property"). Madam Wong Mei Lin ("Madam Wong"), the plaintiff, seeks a declaration for the property on trust for her whole and sole benefit. She also seeks a declaration that the defendant held the property on trust on behalf of the plaintiff after the death of the deceased, Lam Leung Ping ("Mr Lam"). She further seeks an order that the defendant do forthwith transfer the legal title of the property to her and in the alternative, if the defendant refuses or neglects to do this, that the Registrar be appointed to convey the interest of the defendant in the property into her name.

2. The background of this case is as follows. In about 1982, Madam Wong and the deceased, Mr Lam, entered into cohabitation together. At that time, Mr Lam was married but he divorced in about 1986. In 1987, Madam Wong purchased the property concerned in this case in her own name. She let it out and she received rent. Then in 1989, in order to be able to obtain a better mortgage loan than she could otherwise have done, she caused the property to be put into the name of Mr Lam. The property was mortgaged to the Hong Kong Bank.

3. Mr Lam became ill and he passed away on 1 May 1991. Madam Wong continued to pay the mortgage repayments on the property from the joint account which she had had with Mr Lam until the mortgage was finally paid off in December 1999. Madam Lam sought to obtain the agreement of the mother of the deceased to become the administratrix of the estate but she (by name Madam Cheung Sik Heung) failed to do so. Accordingly, the plaintiff took out this writ and applied before the Master to appoint Madam Cheung to represent the estate. An order was made for this but there was still no response. The plaintiff then took out another summons before Master Lam in September 2000 to appoint the official solicitor to represent the estate of the deceased and the writ and Statement of Claim was served on the official solicitor. However, no acknowledgment of service was filed nor any defence. It seems that the official solicitor must have taken the terms of the Master's order to mean that he was simply appointed to accept service of the writ.

4. The procedure in this case follows that employed in the case of Lau Siu Kwong, David & Others v. The Personal Representatives of Lee On Yuen, deceased, HCA No.10001 of 2000 heard before Recorder Edward Chan SC on 9 April 2001. I am satisfied that the correct procedure has been employed in this case and the defendant may properly apply for judgment under Order 19, rule 7.

Merits of the application

5. This is a case of resulting trust. The plaintiff has deposed that the intention of the parties when the deceased took over title of the property, was that he should hold the property on trust for her. She has also deposed that all the mortgage repayments still in Hong Kong Bank had been repaid by her and of course there is nothing to dispute this. The intention of resulting trust can be rebutted by presumption of advancement but there was no marriage and there is no presumption of advancement as between co-habitees. So the question does not arise here.

6. I am therefore satisfied that the plaintiff had successfully made out a case of resulting trust and she is accordingly entitled to the declaration which she seeks. There will, accordingly, be a judgment in her favour for the two declarations sought by the Notice of Motion. There will further be an order that the defendant do forthwith transfer the legal title of the property to the plaintiff and in default thereof that the Registrar be appointed to convey the interest of the defendant in the property in the name of the defendant to the plaintiff.

7. The plaintiff does not seek an order as to costs and indeed there will be nobody to pay costs. There will accordingly be no order as to costs.