IP (or YIP) CHEUNG (or CHIANG) KWOK (also known as DAVID IP or YIP) v. IP SIU BUN AND OTHERS

IP (or YIP) CHEUNG (or CHIANG) KWOK (also known as DAVID IP or YIP) v. IP SIU BUN AND OTHERS

The court held it had no jurisdiction in these proceedings to order a sale of the trust properties because the plaintiff was not a duly constituted personal representative and the representation order made for these proceedings did not confer locus standi to seek execution of the trusts or a sale under Order 85; Order 31 does not expand the court's power to order a sale where no jurisdiction otherwise exists. Costs were allocated: Sin Hua (4th defendant) must pay the plaintiff's party-and-party costs and the Attorney-General's party-and-party costs from its own funds; differences between party-and-party and common fund taxed costs of the plaintiff and common fund costs of the 1st and 2nd...

Citation
IP (or YIP) CHEUNG (or CHIANG) KWOK (also known as DAVID IP or YIP) v. IP SIU BUN AND OTHERS
Parties
Plaintiff (original Action): IP (or Yip) CHEUNG (or CHIANG); Co Plaintiff (original Action): KWOK (also known as DAVID IP or YIP); 1st Defendant: IP SIU BUN; 2nd Defendant: IP CHEUNG KIT YEE; 3rd Defendant (action Discontinued): IP SIU KONG (or KWONG); 4th Defendant; Counterclaim Plaintiff: SIN HUA BANK TRUSTEE LIMITED; 2nd Defendant (to Counterclaim): THE ATTORNEY GENERAL
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 October 1988
Case Number
HCA7440/1984
Procedural Posture
Trusts and Property Administration / Post Judgment Hearing Determining Sale Jurisdiction and Costs Allocation (judgment Delivered)
Outcome
Declaration that the properties (152, 154 and 156 Queen's Road Central) are held on trust for Ip Koo Chi or his estate; counterclaim dismissed; no order for sale made in these proceedings due to lack of jurisdiction; costs allocated as described below.
Legal Topics
Order for Sale of Trust Property, Locus Standi of Claimant/representative, Representation of Estate, Common Fund Costs, Taxation and Indemnity for Appeal Costs, Account and Inquiry
Source Language
EN
Trusts Property Civil Procedure Costs and Taxation Order for Sale of Trust Property Locus Standi of Claimant/representative Representation of Estate Common Fund Costs +2 more

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Parties

IP (or Yip) CHEUNG (or CHIANG)

Plaintiff (original Action)

KWOK (also known as DAVID IP or YIP)

Co Plaintiff (original Action)

IP SIU BUN

1st Defendant

IP CHEUNG KIT YEE

2nd Defendant

IP SIU KONG (or KWONG)

3rd Defendant (action Discontinued)

SIN HUA BANK TRUSTEE LIMITED

4th Defendant; Counterclaim Plaintiff

THE ATTORNEY GENERAL

2nd Defendant (to Counterclaim)

Procedural Posture

Trusts and Property Administration / Post Judgment Hearing Determining Sale Jurisdiction and Costs Allocation (judgment Delivered)

Legal Issues

  1. 1 Whether the court had jurisdiction in these proceedings to order a sale of trust property when the plaintiff was not a personal representative
  2. 2 Whether a representation order appointing the plaintiff to represent the settlor's estate conferred locus standi to seek execution of the trusts or an order for sale under Order 85 Rule 2(3)(c)
  3. 3 Whether Order 31 allowed the court to order a sale where it otherwise lacked power

Ratio Decidendi

The court held it had no jurisdiction in these proceedings to order a sale of the trust properties because the plaintiff was not a duly constituted personal representative and the representation order made for these proceedings did not confer locus standi to seek execution of the trusts or a sale under Order 85; Order 31 does not expand the court's power to order a sale where no jurisdiction otherwise exists. Costs were allocated: Sin Hua (4th defendant) must pay the plaintiff's party-and-party costs and the Attorney-General's party-and-party costs from its own funds; differences between party-and-party and common fund taxed costs of the plaintiff and common fund costs of the 1st and 2nd...

Court Disposition

Declaration that the properties (152, 154 and 156 Queen's Road Central) are held on trust for Ip Koo Chi or his estate; counterclaim dismissed; no order for sale made in these proceedings due to lack of jurisdiction; costs allocated as described below.

Orders

  • Declaration that numbers 152, 154 and 156 Queen's Road Central are and have been held on trust for Ip Koo Chi or his estate
  • Account and inquiry into rents and profits received by defendants and what has become of them