HIEW FOOK LOI v. YAU WAI YIN AND ANOTHER

HCMP 4272/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4272 OF 2002

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J U D G M E N T

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1. This is an application by the Plaintiff for a vesting order pursuant to section 45 of the Trustee Ordinance (Cap. 29) relating to certain interest in several lots of property in the New Territories.

2. According to the evidence before me, the properties in question originally belonged to a t'so and a t'ong. In 1956, by a "division of property", the properties were divided amongst, apparently, the members of the t'so and t'ong, and in relation to the subject properties, one of the co-transferees was a Mr Yau Wai-lau, but he did not hold his share in the properties beneficially, rather he held his share as trustee for a Yau Fuk-loi. This can be seen from the land search records which name Yau Fuk-loi as the beneficiary.

3. According to the evidence, Yau Wai-lau died intestate in 1981, and the two Defendants are his administrators pursuant to letters of administration granted in November 1982.

4. It is the Plaintiff's case that he is indeed the Yau Fuk-loi named in both the division of property and the land search records. To establish that, he has made a statutory declaration to that effect.

5. Mr Lam, counsel for the Plaintiff, also produces to me at today's hearing a declaration made by the Plaintiff back in 1997, well before the present proceedings were commenced, to the effect that he is known as "邱福來" in Chinese, the Chinese name which appears in the division of property.

6. The Plaintiff, through Mr Lam, is prepared to file a supplemental affirmation to exhibit this earlier declaration, together with its registration memorial.

7. So far as the trust is concerned, there is really nothing before me to show the content of the trust, but on the material before me, particularly the land search records, and in the absence of any opposition from the two Defendants, one of whom has failed to file any acknowledgement of service and the other one has indicated in his acknowledgement of service that he does not contest the proceedings, I can draw the inference that this is a simple or bare trust.

8. The Plaintiff is over 70 years old. No doubt he is sui juris, and in those circumstances, he is quite entitled to put an end to the trust and ask for an order vesting the title to the properties in himself, he being the sole beneficiary under the bare trust in question: Saunders v Vautier (1841) 4 Beav. 115. According to his evidence, he has contacted one of the administrators who has, however, refused or failed to have the title transferred back to him.

9. So in those circumstances, in my judgment, a case for a vesting order has been made out and I am prepared to make an order in terms of paragraph 1 and paragraph 2 of the originating summons upon the Plaintiff, by counsel, undertaking to (a) file a supplemental affirmation exhibiting a declaration dated 5 February 1997 made by him and the registration memorial thereof and (b) file an affidavit or affirmation confirming that the copy division of property exhibited as "HFL-2" to the affirmation of the Plaintiff filed herein was obtained from the District Land Registry without any additions or alterations on his or his lawyer's part, within 7 days from the date hereof.

10. The purpose of the second undertaking is to eliminate any doubt that the Chinese names appearing on the copy division of property were added by the Plaintiff or those representing him after the same was obtained from the Land Registry. The Chinese name "邱福來" appearing on the division of property is the only documentary evidence before me to link the Chinese name of the beneficiary in question to the Plaintiff who, according to his declarations, bears the same Chinese name.

11. Before parting with this case, I would note this: the originating summons was taken out by the Plaintiff using the expedited form, i.e. Form 10, rather than the usual form, Form 8. An expedited form can only be used when allowed by law or the rules (O.7 r.2(1)). So far as I can see, there is no provision authorising the use of an expedited form in this type of proceedings. Mr Lam informs me that the form was used because of the age of the Plaintiff and perhaps his health condition. That is understandable, but is not justification for the use of the expedited form.

12. However, non-compliance with the rules and irregularities should not defeat an action (O.2 r.1). So I am prepared to make the order indicated above, notwithstanding the use of the wrong form in the present case.

13. Mr Lam does not ask for costs against anybody. So I make no order as to costs.