HUI KIT KEUNG AND ANOTHER v. HSUI KWOK KEUNG AND ANOTHER

HUI KIT KEUNG AND ANOTHER v. HSUI KWOK KEUNG AND ANOTHER

The summons was dismissed because the application was procedurally improper (an inter-partes summons in a writ action rather than originating proceedings under Order 85 r 2), the relief sought would divest a non-party of property without joinder, the relief was outside the scope of the pleadings, and no expedient justification existed to require a court vesting order when parties could effect assignments themselves; s45(g) was not properly engaged to justify the vesting order sought.

Citation
[2018] HKCFI 1782
Parties
Plaintiff Executor and Trustee of the Will: 1st Plaintiff; Plaintiff Executor and Trustee of the Will: 2nd Plaintiff; Defendant Registered Owner: 1st Defendant; Defendant Registered Owner: 2nd Defendant; Non Party (registered Owner): Madam Hui
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 July 2018
Case Number
HCA808/2015
Procedural Posture
Administration/trusts (claim for Declaration of Resulting/constructive Trust and Transfer of Land) / Chambers Hearing on Inter Partes Summons Under Section 45 Trustee Ordinance and Order 85 R 2 — Summons Dismissed
Outcome
Summons dated 17 July 2018 dismissed; no order as to costs
Legal Topics
Vesting Order, Trustee Ordinance S45(g), Order 85 Rule 2 Rules of the High Court, Joinder of Parties, Procedural Competence of Remedies, Conveyancing Requisitions
Source Language
EN
Trusts Probate Property Law Civil Procedure Vesting Order Trustee Ordinance S45(g) Order 85 Rule 2 Rules of the High Court Joinder of Parties +2 more

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Parties

1st Plaintiff

Plaintiff Executor and Trustee of the Will

2nd Plaintiff

Plaintiff Executor and Trustee of the Will

1st Defendant

Defendant Registered Owner

2nd Defendant

Defendant Registered Owner

Madam Hui

Non Party (registered Owner)

Procedural Posture

Administration/trusts (claim for Declaration of Resulting/constructive Trust and Transfer of Land) / Chambers Hearing on Inter Partes Summons Under Section 45 Trustee Ordinance and Order 85 R 2 — Summons Dismissed

Legal Issues

  1. 1 Whether the inter-partes summons under Order 85 r 2 was the proper procedure for seeking a vesting order
  2. 2 Whether the court may grant a vesting order affecting the proprietary interest of a non-party (Madam Hui) without joinder
  3. 3 Whether the relief sought was within the scope of the writ and statement of claim

Ratio Decidendi

The summons was dismissed because the application was procedurally improper (an inter-partes summons in a writ action rather than originating proceedings under Order 85 r 2), the relief sought would divest a non-party of property without joinder, the relief was outside the scope of the pleadings, and no expedient justification existed to require a court vesting order when parties could effect assignments themselves; s45(g) was not properly engaged to justify the vesting order sought.

Court Disposition

Summons dated 17 July 2018 dismissed; no order as to costs

Orders

  • Summons dated 17 July 2018 dismissed.
  • No order as to costs.