SO KWONG YIN AND ANOTHER v. SO KONG PO, THE PERSON APPOINTED TO REPRESENT THE ESTATE OF SO FAT, DECEASED AND ANOTHER

SO KWONG YIN AND ANOTHER v. SO KONG PO, THE PERSON APPOINTED TO REPRESENT THE ESTATE OF SO FAT, DECEASED AND ANOTHER

The court found a fundamental common mistake existed: the deceased and plaintiffs wrongly believed the deed would have no adverse effect under the Land Grant (clause 5(i)(b)); that mistake was induced and exacerbated by negligent legal advice, made the deed's performance essentially and radically different from the parties' assumption, and therefore the court exercised its equitable discretion to rescind the deed, declare it void ab initio and treat the land as part of the deceased's estate.

Citation
[2023] HKDC 1698
Parties
1st Plaintiff: SO KWONG YIN（蘇光然）; 2nd Plaintiff: WAN YEE（溫義）; 1st Defendant: SO KONG PO（person appointed to represent the estate of SO FAT（蘇發）, deceased）; 2nd Defendant: DIRECTOR OF LANDS
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
30 November 2023
Case Number
DCMP663/2022
Procedural Posture
Originating Summons (miscellaneous Proceedings No. 663 of 2022) / Hearing and Judgment (call‑over Hearing; Final Relief Granted)
Outcome
Deed of gift set aside; deed declared null, void and inoperative ab initio; the Land forms part of the deceased's estate; final relief granted; no order as to costs.
Legal Topics
Rescission for Common Mistake, Deed of Gift, Land Grant Conditions (clause 5(i)(b)), Setting Aside Voluntary Disposition, Summary Disposal of Uncontested Proceedings
Source Language
EN
Property Law Equity Civil Procedure Administrative Law Rescission for Common Mistake Deed of Gift Land Grant Conditions (clause 5(i)(b)) Setting Aside Voluntary Disposition +1 more

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Parties

SO KWONG YIN（蘇光然）

1st Plaintiff

WAN YEE（溫義）

2nd Plaintiff

SO KONG PO（person appointed to represent the estate of SO FAT（蘇發）, deceased）

1st Defendant

DIRECTOR OF LANDS

2nd Defendant

Procedural Posture

Originating Summons (miscellaneous Proceedings No. 663 of 2022) / Hearing and Judgment (call‑over Hearing; Final Relief Granted)

Legal Issues

  1. 1 Whether the deed of gift should be set aside for a common mistake as to the effect of the land grant
  2. 2 Whether clause 5(i)(b) of the Land Grant made performance of the deed essentially and radically different from the parties' assumption
  3. 3 Whether the plaintiffs are entitled to a declaration that the deed is null and void ab initio and that the land forms part of the deceased's estate

Ratio Decidendi

The court found a fundamental common mistake existed: the deceased and plaintiffs wrongly believed the deed would have no adverse effect under the Land Grant (clause 5(i)(b)); that mistake was induced and exacerbated by negligent legal advice, made the deed's performance essentially and radically different from the parties' assumption, and therefore the court exercised its equitable discretion to rescind the deed, declare it void ab initio and treat the land as part of the deceased's estate.

Court Disposition

Deed of gift set aside; deed declared null, void and inoperative ab initio; the Land forms part of the deceased's estate; final relief granted; no order as to costs.

Orders

  • Set aside the Deed of gift dated 12 June 2000 (Memorial No. ST1161206) and the conveyance pursuant thereto
  • Declare that the Deed is null, void and inoperative ab initio and that the Land forms part of the deceased's estate