JEREMY GAR YIN IP AND OTHERS v. SECRETARY FOR JUSTICE OF THE HKSAR

JEREMY GAR YIN IP AND OTHERS v. SECRETARY FOR JUSTICE OF THE HKSAR

Given the simple nature of the trust fund, the Applicants' willingness and fitness to act, and that the proposed Draft Deed preserves and better advances the charitable object, the court exercised its power under section 57A (and section 42 for trustee appointment) to discharge the custodian-trustee, appoint new trustees, vest the assets in them and approve the variation of the trust instrument, while relieving the outgoing trustee from personal liability except for fraud, dishonesty or wilful misconduct.

Citation
[2021] HKCFI 3215
Parties
Applicant/trustee: Jeremy Gar Yin Ip; Applicant/trustee: Timothy Rex Carrell; Applicant/trustee: Mark James Blackshaw; Applicant/statutory Body (esf/kgv): The English Schools Foundation (operating as King George V School); Applicant/custodian Trustee (trust Corporation): HSBC Executor & Trustee Company (UK) Limited; Respondent/parens Patriae: Secretary for Justice of the HKSAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 October 2021
Case Number
HCMP1156/2021
Procedural Posture
Charity Scheme Application (section 57 a Trustee Ordinance) / Decision in Chambers on Originating Summons
Outcome
Application granted in terms of the originating summons: custodian-trustee discharged; 1st-3rd applicants appointed trustees; trust instrument varied as per Draft Deed; assets vested in new trustees; no order as to costs; outgoing trustee relieved from personal liability except for fraud, dishonesty or wilful...
Legal Topics
Variation of Charitable Trusts, Discharge and Appointment of Trustees, Vesting Orders, Parens Patriae Participation, Charitable Object and Charitable Status
Source Language
EN
Trusts Charity Law Civil Procedure Administrative Law Variation of Charitable Trusts Discharge and Appointment of Trustees Vesting Orders Parens Patriae Participation +1 more

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Parties

Jeremy Gar Yin Ip

Applicant/trustee

Timothy Rex Carrell

Applicant/trustee

Mark James Blackshaw

Applicant/trustee

The English Schools Foundation (operating as King George V School)

Applicant/statutory Body (esf/kgv)

HSBC Executor & Trustee Company (UK) Limited

Applicant/custodian Trustee (trust Corporation)

Secretary for Justice of the HKSAR

Respondent/parens Patriae

Procedural Posture

Charity Scheme Application (section 57 a Trustee Ordinance) / Decision in Chambers on Originating Summons

Legal Issues

  1. 1 Whether the court should discharge the corporate custodian-trustee and appoint volunteer trustees pursuant to section 42 Trustee Ordinance
  2. 2 Whether the trust instrument may be varied under section 57A Trustee Ordinance to broaden eligibility criteria without defeating the charitable object
  3. 3 Whether the limited and simple asset (bank account) renders professional trustees unnecessary

Ratio Decidendi

Given the simple nature of the trust fund, the Applicants' willingness and fitness to act, and that the proposed Draft Deed preserves and better advances the charitable object, the court exercised its power under section 57A (and section 42 for trustee appointment) to discharge the custodian-trustee, appoint new trustees, vest the assets in them and approve the variation of the trust instrument, while relieving the outgoing trustee from personal liability except for fraud, dishonesty or wilful misconduct.

Court Disposition

Application granted in terms of the originating summons: custodian-trustee discharged; 1st-3rd applicants appointed trustees; trust instrument varied as per Draft Deed; assets vested in new trustees; no order as to costs; outgoing trustee relieved from personal liability except for fraud, dishonesty or wilful...

Orders

  • Custodian-Trustee discharged forthwith as trustee of the Charity and relieved from any personal liability it may have incurred as trustee save for fraud, dishonesty and/or wilful misconduct
  • The 1st to 3rd Applicants are appointed as trustees of the Charity and all property comprised in the fund of the Charity are vested in those trustees