TSANG WING KWAI AND ANOTHER v. The Personal Representative of the estate of CHAN CHUNG HAN, the Deceased

TSANG WING KWAI AND ANOTHER v. The Personal Representative of the estate of CHAN CHUNG HAN, the Deceased

The judge below erred in law by effectively requiring the appellant to prove the 'veracity' of a Declaration of Trust after accepting the deceased's signature; once the signature was accepted the estate bore the onus of proving a legal basis to deny effect (eg mistake or unconscionability) and the trial judge made no positive findings sufficient to defeat the trust document; because the Declaration of Trust and the validity of the 2012 allotment were interrelated and credibility findings could have been affected by the flawed approach, the appropriate remedy was to set aside the judgment below and order a re-trial before a different judge after mediation.

Citation
TSANG WING KWAI AND ANOTHER v. The Personal Representative of the estate of CHAN CHUNG HAN, the Deceased
Parties
1st Appellant (applicant): Tsang Wing Kwai; 2nd Appellant (applicant): Open Treasure Industries Limited; Respondent (personal Representative/executor of the Estate of Chan Chung Han): Tsang Wing Fai
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
9 May 2016
Case Number
CACV216/2015
Procedural Posture
Civil Appeal (court of Appeal) / Hearing and Reasons Delivered; Appeal Allowed; Remitted for Re Trial Before a Different Judge After Mediation
Outcome
Appeal allowed. Judgment of the Court of First Instance set aside. Re-trial of the entire originating summons ordered before a different judge after mediation. Costs of the appeal awarded to the appellants against the respondent.
Legal Topics
Declaration of Trust, Allotment of Shares, Nomineeship, Mistake in Voluntary Disposition, Originating Summons Procedure, Re Trial, Costs
Source Language
EN
Trusts Company Law Probate and Estate Administration Equity Civil Procedure Declaration of Trust Allotment of Shares Nomineeship +4 more

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Parties

Tsang Wing Kwai

1st Appellant (applicant)

Open Treasure Industries Limited

2nd Appellant (applicant)

Tsang Wing Fai

Respondent (personal Representative/executor of the Estate of Chan Chung Han)

Procedural Posture

Civil Appeal (court of Appeal) / Hearing and Reasons Delivered; Appeal Allowed; Remitted for Re Trial Before a Different Judge After Mediation

Legal Issues

  1. 1 Whether a Declaration of Trust signed by the deceased created an enforceable trust in favour of the appellant
  2. 2 Whether the allotment of 9,998 shares in January 2012 was validly made
  3. 3 Whether the deceased held one share on trust for the appellant

Ratio Decidendi

The judge below erred in law by effectively requiring the appellant to prove the 'veracity' of a Declaration of Trust after accepting the deceased's signature; once the signature was accepted the estate bore the onus of proving a legal basis to deny effect (eg mistake or unconscionability) and the trial judge made no positive findings sufficient to defeat the trust document; because the Declaration of Trust and the validity of the 2012 allotment were interrelated and credibility findings could have been affected by the flawed approach, the appropriate remedy was to set aside the judgment below and order a re-trial before a different judge after mediation.

Court Disposition

Appeal allowed. Judgment of the Court of First Instance set aside. Re-trial of the entire originating summons ordered before a different judge after mediation. Costs of the appeal awarded to the appellants against the respondent.

Orders

  • Allow appeal and set aside the judgment below
  • Order a full re-trial of the entire originating summons before a different judge