LAM TAT CHOI v. CHAN SUK YEE

HCA 4101/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4101 OF 2000

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J U D G M E N T

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1. This is an application concerning a property known as Flat B on the 13th Floor of Block 1, Dragonfair Garden, No. 455 Queen's Road West, Hong Kong.

2. The property is held in the name of the Defendant, a Madam Chan Suk Yee.

3. The evidence of the Plaintiff, Mr Lam Tat Choi, is that in or about 1982, he and the Defendant had started cohabiting together. At first, they cohabited in rented premises.

4. Subsequently from 1984 to 1989, the Defendant and he acquired two other premises as joint tenants. The evidence of the Plaintiff is that ever since their cohabitation, the Defendant had not worked and had no income. Her living expenses came from the Plaintiff who was a sole proprietor of a business.

5. In 1989, the Plaintiff and the Defendant sold the premises in which they were then living and purchased another property known as Serene Court. This time, however, the property was acquired in the Defendant's sole name. The evidence of the Plaintiff is that the reason why it was acquired in the Defendant's sole name was because the Plaintiff wanted to minimize his financial exposure, as he was involved in a sole proprietorship.

6. Subsequently in 1991, the Serene Court property was sold and the subject premises were acquired. As I have said, it was acquired in the sole name of the Defendant. However, there is quite substantial evidence before me that it was in fact the Plaintiff who had supplied the purchase monies. Thus, I have seen receipts from the estate agent made in favour of the Plaintiff, receipts from the solicitors handling the conveyancing which were made in favour of the Plaintiff, the down payment was from a Hang Seng Bank joint account which was opened since the cohabitation when, as I have said, the Plaintiff was the only person bringing money into the household, and I have also seen documentation relating to mortgage repayments which show that the mortgage repayments were made from the Plaintiff's sole account.

7. Therefore, it would appear quite clear that the presumption of resulting trust would apply, so that the Defendant was holding the property as trustee for the Plaintiff. As the parties were not married, there is no presumption of advancement. Therefore, the only presumption that the law provides is that of a resulting trust, namely that the Defendant was holding the property as trustee for the Plaintiff in the absence of any evidence that the property was a gift to her.

8. In 1992, the parties broke up and in August 1992, the Defendant left the property.

9. The Plaintiff has since been in sole occupation of the property. He says in his affirmation that since the Defendant left, he had been trying to look for her, and there is quite substantial evidence indicating his attempts to locate her. However, that has come to nothing. An order has already been given for substituted service of these proceedings.

10. I had been concerned as to why there has been a delay of some eight years between 1992 and 2000 when these proceedings were taken out. However, there is evidence before me that the Plaintiff had been hoping to locate the Defendant for the matter to be resolved out of court.

11. Although the Defendant is in default of defence and even though the courts are normally very wary of giving declaratory judgments in default of defence, this appears to me to be a clear case where it would be unjust if the matter were left without remedy to the Plaintiff. As I have said, given the evidence that he had paid the entire paid purchase price and in view of the presumption of resulting trust, it seems to me that it would be unjust if the court exercised its discretion against his application.

12. Accordingly, I would declare that the property known as Flat B on the 13th Floor of Block 1, Dragonfair Garden, No. 455 Queen's Road West, Hong Kong is held by the Defendant upon trust for the Plaintiff solely. I would declare that the Plaintiff is the sole beneficial owner of the said property, and pursuant to section 45 of the Trustee Ordinance, Cap. 29 of the Laws of Hong Kong, I would give a vesting order vesting all the title, interest and benefit of the property in the Plaintiff. That is because under section 45 of the Trustee Ordinance, in a case where a trustee cannot be found, as in this case, the court may make an order vesting the land in any such person, in the present case, the Plaintiff.