TAM CHIU KAM and Another v. CHUI YAN TAI

TAM CHIU KAM and Another v. CHUI YAN TAI

The court found that the presumption of advancement applied to the one third share in the flat and that the defendant failed to rebut it; the estate of Shum Tak Hing is beneficially entitled to the registered one third share. The car park, on the available evidence and inferences as to intention and conduct, was also held to be the deceased's sole property. The court found that a $50,000 advance in late 1992 was a loan payable to the defendant and ordered repayment, with execution stayed pending final orders as to the flat. The court declined to order immediate dispossession of the defendant from the flat and directed further submissions on appropriate orders and costs.

Citation
TAM CHIU KAM and Another v. CHUI YAN TAI
Parties
Plaintiff (administrator of the Estate of Shum Tak Hing, Deceased): TAM CHIU KAM; Plaintiff (administrator of the Estate of Shum Tak Hing, Deceased): TAM LAP SHUN; Defendant (and Counterclaimant as Administratrix of the Estate of Shum Woon Cheung, Deceased): CHUI YAN TAI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 April 1997
Case Number
HCMP3470/1995
Procedural Posture
Partition Proceedings Under the Partition Ordinance (chapter 352), High Court, Hong Kong / Judgment After Trial (hearing 14, 17, 18 & 19 March 1997; Judgment 3 April 1997)
Outcome
Plaintiffs succeed in principal claims: the estate of Shum Tak Hing is declared beneficially entitled to the one third share in the flat and to the car park; defendant succeeds on counterclaim only for repayment of $50,000 with stay of execution pending further orders; parties to be heard on ancillary orders and costs.
Legal Topics
Partition, Presumption of Advancement, Resulting Trust, Constructive Trust, Loan Repayment, Order for Sale, Possession
Source Language
EN
Property Law Trusts and Equity Succession Civil Procedure Family Law Partition Presumption of Advancement Resulting Trust +4 more

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Parties

TAM CHIU KAM

Plaintiff (administrator of the Estate of Shum Tak Hing, Deceased)

TAM LAP SHUN

Plaintiff (administrator of the Estate of Shum Tak Hing, Deceased)

CHUI YAN TAI

Defendant (and Counterclaimant as Administratrix of the Estate of Shum Woon Cheung, Deceased)

Procedural Posture

Partition Proceedings Under the Partition Ordinance (chapter 352), High Court, Hong Kong / Judgment After Trial (hearing 14, 17, 18 & 19 March 1997; Judgment 3 April 1997)

Legal Issues

  1. 1 Whether the one third share in the flat registered in the name of the deceased (Shum Tak Hing) was held beneficially by him or on trust for the father or defendant
  2. 2 Whether the car park space registered in the deceased's name was beneficially his or held on trust for the defendant or her husband
  3. 3 Whether a loan of $50,000 was made by the defendant to the deceased and is repayable by his estate

Ratio Decidendi

The court found that the presumption of advancement applied to the one third share in the flat and that the defendant failed to rebut it; the estate of Shum Tak Hing is beneficially entitled to the registered one third share. The car park, on the available evidence and inferences as to intention and conduct, was also held to be the deceased's sole property. The court found that a $50,000 advance in late 1992 was a loan payable to the defendant and ordered repayment, with execution stayed pending final orders as to the flat. The court declined to order immediate dispossession of the defendant from the flat and directed further submissions on appropriate orders and costs.

Court Disposition

Plaintiffs succeed in principal claims: the estate of Shum Tak Hing is declared beneficially entitled to the one third share in the flat and to the car park; defendant succeeds on counterclaim only for repayment of $50,000 with stay of execution pending further orders; parties to be heard on ancillary orders and costs.

Orders

  • Estate of Shum Tak Hing declared beneficially entitled to one third share in Flat A3, 20th Floor, King\'s Towers, North Point
  • Car park space declared to have been sole property of Shum Tak Hing