SO MAN AND ANOTHER v. NG KWOK CHING (also known as DICKSON NG, also known as NG KWOK CHING DICKSON and also known as DICKSON NG KWOK CHING) AND ANOTHER

SO MAN AND ANOTHER v. NG KWOK CHING (also known as DICKSON NG, also known as NG KWOK CHING DICKSON and also known as DICKSON NG KWOK CHING) AND ANOTHER

On the balance of probabilities the court accepted the plaintiffs' case: there was a common intention that Leo and So Man would beneficially own the Flat in equal shares, supported by contemporaneous declarations (1995/1996), the transfer of HK$2.4m by Leo, long exclusive occupation and payment of outgoings by Leo and So Man; accordingly a common intention constructive trust (and alternatively a resulting trust) was constituted so Dickson holds his legal title on trust for Leo and has no beneficial interest; therefore the charging order against Dickson's interest must be discharged and Chiu's application for sale fails for want of an interest to enforce and, in any event, for lack of...

Citation
[2024] HKCFI 687
Parties
1st Plaintiff (original Action); 2nd Defendant (counterclaim): So Man; 2nd Plaintiff (original Action); 3rd Defendant (counterclaim): Ng Kai Shing; 1st Defendant (original Action); 1st Defendant (counterclaim): Ng Kwok Ching (Dickson); 2nd Defendant (original Action); Plaintiff (counterclaim): Chiu Tin Yau Lesley
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 March 2024
Case Number
HCA624/2021
Procedural Posture
Consolidated Civil Actions: Proprietary/quiet Title Claim and Enforcement of Judgment (charging Order) / Judgment After Trial (court of First Instance)
Outcome
Plaintiffs' declaratory claims allowed; judgment creditor's counterclaim for sale dismissed; charging order discharged; transfer ordered.
Legal Topics
Common Intention Constructive Trust, Resulting Trust, Charging Order, Order for Sale, Partition Ordinance Locus and Procedure, Limitation of Recovery of Interest, Witness Credibility and Contemporaneous Evidence
Source Language
EN
Equity Property Law Trusts Enforcement of Judgment Limitation Law Civil Procedure Common Intention Constructive Trust Resulting Trust +5 more

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Parties

So Man

1st Plaintiff (original Action); 2nd Defendant (counterclaim)

Ng Kai Shing

2nd Plaintiff (original Action); 3rd Defendant (counterclaim)

Ng Kwok Ching (Dickson)

1st Defendant (original Action); 1st Defendant (counterclaim)

Chiu Tin Yau Lesley

2nd Defendant (original Action); Plaintiff (counterclaim)

Procedural Posture

Consolidated Civil Actions: Proprietary/quiet Title Claim and Enforcement of Judgment (charging Order) / Judgment After Trial (court of First Instance)

Legal Issues

  1. 1 Who are the beneficial owners of the Flat?
  2. 2 Whether a common intention constructive trust was established
  3. 3 Whether a resulting trust arose from payment of purchase money

Ratio Decidendi

On the balance of probabilities the court accepted the plaintiffs' case: there was a common intention that Leo and So Man would beneficially own the Flat in equal shares, supported by contemporaneous declarations (1995/1996), the transfer of HK$2.4m by Leo, long exclusive occupation and payment of outgoings by Leo and So Man; accordingly a common intention constructive trust (and alternatively a resulting trust) was constituted so Dickson holds his legal title on trust for Leo and has no beneficial interest; therefore the charging order against Dickson's interest must be discharged and Chiu's application for sale fails for want of an interest to enforce and, in any event, for lack of...

Court Disposition

Plaintiffs' declaratory claims allowed; judgment creditor's counterclaim for sale dismissed; charging order discharged; transfer ordered.

Orders

  • Declaration that Ng Kwok Ching (Dickson) has no beneficial interest in Flat B, 11th Floor, Verdun Villa, No.8 Ede Road, Kowloon Tong
  • Declaration that the Flat is held by Ng Kwok Ching on trust for Ng Kai Shing and by So Man as tenants in common in equal shares