ZHANG YUXIAN suing as the sole administratrix of the estate of the late LEE KAM MING v. MOK SUI LING

ZHANG YUXIAN suing as the sole administratrix of the estate of the late LEE KAM MING v. MOK SUI LING

No trespass claim lay because there was neither actual entry nor a formal demand for possession by Mok; Mok, being a credible witness, discharged the evidential burden that she contributed to the purchase and upkeep and is the beneficial owner of the registered 50% share; the alleged oral agreement to surrender her share did not exist; accordingly Zhang's claims fail and Mok's counterclaim for sale succeeds with Mok entitled to half the net sale proceeds and reimbursement of HK$76,727.90.

Citation
ZHANG YUXIAN suing as the sole administratrix of the estate of the late LEE KAM MING v. MOK SUI LING
Parties
Plaintiff (dccj 1079/2014); Defendant (counterclaim) (dccj 3898/2014): Mok Sui Ling; Defendant (dccj 1079/2014); Plaintiff (dccj 3898/2014): Zhang Yuxian; Deceased; Former Co Owner: Lee Kam Ming (deceased)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
15 April 2016
Case Number
DCCJ3898/2014
Procedural Posture
Civil: Trespass; Proprietary Declaration and Counterclaim for Sale / Judgment
Outcome
Plaintiff's claims dismissed (both actions); Mok's counterclaim allowed: order for sale and distribution in equal shares; mesne profits claim dismissed.
Legal Topics
Trespass, Mesne Profits, Resulting Trust, Oral Agreement, Order for Sale, Hearsay and Witness Credibility
Source Language
EN
Property Law Trusts and Equity Land Law Evidence Civil Procedure Trespass Mesne Profits Resulting Trust +3 more

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Parties

Mok Sui Ling

Plaintiff (dccj 1079/2014); Defendant (counterclaim) (dccj 3898/2014)

Zhang Yuxian

Defendant (dccj 1079/2014); Plaintiff (dccj 3898/2014)

Lee Kam Ming (deceased)

Deceased; Former Co Owner

Procedural Posture

Civil: Trespass; Proprietary Declaration and Counterclaim for Sale / Judgment

Legal Issues

  1. 1 Whether an action for trespass arose based on Mok's title and communications
  2. 2 If trespass arose, period and amount of mesne profits payable by Zhang
  3. 3 Whether Mok holds her registered half share on resulting trust for the Deceased

Ratio Decidendi

No trespass claim lay because there was neither actual entry nor a formal demand for possession by Mok; Mok, being a credible witness, discharged the evidential burden that she contributed to the purchase and upkeep and is the beneficial owner of the registered 50% share; the alleged oral agreement to surrender her share did not exist; accordingly Zhang's claims fail and Mok's counterclaim for sale succeeds with Mok entitled to half the net sale proceeds and reimbursement of HK$76,727.90.

Court Disposition

Plaintiff's claims dismissed (both actions); Mok's counterclaim allowed: order for sale and distribution in equal shares; mesne profits claim dismissed.

Orders

  • DCCJ 1079/2014: plaintiff's (Mok) claim dismissed
  • DCCJ 3898/2014: plaintiff's (Zhang) claim dismissed