RE PACIFIC GOOD INVESTMENT LTD

HCMP 366/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 366 OF 2014

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J U D G M E N T

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The Application

1. By an ex parte Originating Summons dated 14 February 2014, the applicant applies for orders for the vesting of all the legal and other estate in the Subject Interests in the applicant, insofar as such estate may still be vested in the former trustees.

2. The Subject Interests include:

(1) the 1^st Interest, namely, ½ share in Lot Number 753 in DD132;

(2) the 2^nd  Interest, namely, ½ share in Lots Numbers 756, 770, 772 and 779 in DD132; and

(3) the 3^rd Interest, namely, ⅓ share in Lots Numbers 774, 775 and 776 in DD132.

Background to the Application

3. The applicant is the owner of the entire interests in all the eight lots of land - the Subject Lots, which are situated in Siu Tong, Tuen Mun.

4. In the devolution of title of the Subject Lots, the Subject Interests were at some stage owned beneficially by a “Tse Tso Yau” and held through trustees.  In particular:

(1) the 1^st Interest was held by “Tse Tso Yau with Tse Tung Yau as trustee”;

(2) the 2^nd Interest was also held by “Tse Tso Yau with Tse Tung Yau as trustee”; and

(3) the 3^rd Interest was held by “Tse Tso Yau with Tse Tang Shi as trustee”.

5. The Division of Property dated 27 April 1961, through which the Subject Interests devolved, was signed by Tse Tso Yau (the beneficiary of the Subject Interests), but was not signed by his former trustees, Tse Tung Yau or Tse Tang Shi.

6. Further, there is no document showing that the legal or other estate in the Subject Interests which, at the time of the Division of Property, may have remained vested in the former trustees, have been specifically vested or revested back in Tse Tso Yau.

7. There is a pending application for surrender of the Subject Lots (together with other lots) to the government in exchange for the grant of a new lot.  In dealing with the surrender and exchange, the government has raised a requisition on title in respect of the Subject Interests and has insisted on the requisition.  In order to put the matter beyond doubt or dispute, the applicant by these proceedings applies for the vesting orders.

8. In essence, the requisition is raised on the following basis:

(1) The title documents (namely, the Conveyance on Sale in 1948 and the Succession to Tse Kwok Yiu’s Property in 1940) showed that the Subject Interests were at some stage held by certain persons (namely, Tse Tung Yau and Tse Tang Shi) as “trustees” for Tse Tso Yau.

(2) However, in the title document for the subsequent devolution of title in the Subject Lots (namely, the Division of Property), though Tse Tso Yau (the beneficiary) did sign on it, the two “trustees” (namely, Tse Tung Yau and Tse Tang Shi) did not and there is otherwise no title document to show that the legal estate in the Subject Interests had been revested in Tse Tso Yau.

Vesting Order

9. The Subject Lots are in the New Territories.  The appointment of trustees were made at the time of the Conveyance on Sale (in 1948) and the Succession to Tse Kwok Yiu’s Property (in 1940).  The appointment was apparently made pursuant to the then section 22 (which has become section 18) of the New Territories Ordinance, Cap 97.

10. Section 45(e) of the Trustee Ordinance, Cap 29, provides that “where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land”, the court may make such vesting order, vesting the interest in any such person as the court may direct.

11. It is trite law that a sole beneficiary of full age and capacity is entitled at his own wish to terminate the trust and to demand the trustee to transfer to or vest in him the legal estate in the trust property.

12. From the evidence filed by the applicant in these proceedings, I am satisfied that:

(1) Tse Tso Yau was the sole beneficiary of the Subject Interests, and had reached majority by 1960, before the Division of Property.

(2) Tse Tung Yau (the trustee in respect of the 1^st Interest and the 2^nd Interest) had died in 1956.

(3) Tse Tang Shi (the trustee for the 3^rd Interest) has died some 20‑odd years ago, and in any event her trusteeship had been cancelled in 1960.

(4) After Tse Tso Yau had reached majority, he did agree to the way the property (which included the Subject Interests) was to be dealt with as per the Division of Property, subsequent to which the applicant has since become the owner of the Subject Lots, including the Subject Interests.

(5) No grant of probate or letters of administration in respect of the estate of Tse Tung Yau or the estate of Tse Tang Shi has been made.

13. In such circumstances, I agree that vesting orders ought to be made to vest in the current owner, namely the applicant, whatever interest as may still be held by the “trustees”.

Application made ex parte

14. It is clear from the authorities that in cases similar to the present case, where the trustees had passed away with no probate or letters of administration having been granted in respect of their estates, the application can be made by way of ex parte Originating Summons [see: Re Li Kow Tsai alias Li Ming, HCMP 73/2001 (Judgment dated 12.09.2001), paragraph 5, and Re Wu Kwok Keung, HCMP 1383/2011 (Judgment dated 10.08.2011), paragraphs 7 and 9].

Conclusion

15. For the reasons stated above, I make an order in terms of paragraphs 1 to 3 of the ex parte Originating Summons herein.  There will be no order as to the costs of the application.

16. Lastly, I thank Mr Lee Tung‑ming for his helpful assistance in this matter.