LAM YIM KAM JOHNSON v. LAM YIM HING DAVID

LAM YIM KAM JOHNSON v. LAM YIM HING DAVID

The consent order required accounts and payments relating solely to the income and expenses of the Wai Yip Street property; amounts expended on other properties, although paid from Wai Yip rental, were not expenses of the Wai Yip property and could not be included or deducted in the account under the consent order; accordingly the Defendant's deduction of $130,934 was not permissible and the Order was varied to require payment of $65,333.34.

Citation
LAM YIM KAM JOHNSON v. LAM YIM HING DAVID
Parties
Plaintiff/respondent: Lam Yim Kam Johnson; Defendant/appellant: Lam Yim Hing David
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 September 2002
Case Number
HCA642/2001
Procedural Posture
Civil Action (account/trust Dispute) / Appeal From Master's Consent Order (court of First Instance)
Outcome
Appeal allowed in part; Master Wong's order varied; consent order not set aside
Legal Topics
Consent Order Construction, Declaration of Trust, Accounting for Rents and Expenses, Order 43/form 30 Compliance, Costs
Source Language
EN
Trusts and Fiduciary Duties Property Law Civil Procedure Equity Accounting for Trusts Consent Order Construction Declaration of Trust Accounting for Rents and Expenses +2 more

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Parties

Lam Yim Kam Johnson

Plaintiff/respondent

Lam Yim Hing David

Defendant/appellant

Procedural Posture

Civil Action (account/trust Dispute) / Appeal From Master's Consent Order (court of First Instance)

Legal Issues

  1. 1 Whether the consent order required accounting only for income and expenses of the Wai Yip Street property or for broader inter se accounts
  2. 2 Whether sums expended on other properties but paid from Wai Yip rental could be deducted from amounts due under the consent order
  3. 3 Whether the consent order could be set aside for alleged imprecision or unfair procurement

Ratio Decidendi

The consent order required accounts and payments relating solely to the income and expenses of the Wai Yip Street property; amounts expended on other properties, although paid from Wai Yip rental, were not expenses of the Wai Yip property and could not be included or deducted in the account under the consent order; accordingly the Defendant's deduction of $130,934 was not permissible and the Order was varied to require payment of $65,333.34.

Court Disposition

Appeal allowed in part; Master Wong's order varied; consent order not set aside

Orders

  • Defendant to pay Plaintiff HKD 65,333.34 in lieu of paragraph (1) of Master Wong's order dated 7 May 2002
  • Costs: costs of and incidental to the Plaintiff's application by Summons dated 26 March 2001 up to 28 May 2002 (inclusive of costs of hearing before Master Wong on 7 May 2002) to be in favour of the Plaintiff; certificate for Counsel in respect of hearing before Master Wong