CHAN LAN v. SHING KEI AND ANOTHER

CHAN LAN v. SHING KEI AND ANOTHER

There was no binding sale agreement because the parties were not ad idem as to when and how completion and payment would occur (the Plaintiff demanded a cashier's order/solicitor's cheque paid at signing; the Defendants intended the usual two-stage conveyancing completion). The 2nd Defendant did not make a gift of the 30% down payment; on the evidence there was a common understanding and/or resulting trust entitling the 2nd Defendant to 30% beneficial interest, with the Plaintiff and 1st Defendant owning the remaining 70% as to 35% each. Consequentially the Plaintiff's partition claim and the Defendants' claim for specific performance were dismissed, and an account and inquiry was...

Citation
CHAN LAN v. SHING KEI AND ANOTHER
Parties
Plaintiff: Chan Lan; 1st Defendant: Shing Kei; 2nd Defendant: Shing Ying Chieh
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 April 2008
Case Number
HCA1206/2006
Procedural Posture
Partition and Trust Dispute (property) / Final Judgment (court of First Instance)
Outcome
Plaintiff's claim dismissed; Defendants' specific performance claim dismissed; Declaration that beneficial ownership is Plaintiff 35%, 1st Defendant 35%, 2nd Defendant 30%; direction for account and repayment; costs awarded to Defendants (order nisi).
Legal Topics
Resulting Trust, Express/common Intention Trust, Specific Performance, Partition Under Statute, Statute of Frauds (s.3 Cpo), Part Performance, Presumption of Advancement, Costs
Source Language
EN
Property Law Trusts and Equity Contract Law Conveyancing Civil Procedure Resulting Trust Express/common Intention Trust Specific Performance +5 more

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Parties

Chan Lan

Plaintiff

Shing Kei

1st Defendant

Shing Ying Chieh

2nd Defendant

Procedural Posture

Partition and Trust Dispute (property) / Final Judgment (court of First Instance)

Legal Issues

  1. 1 Whether there was a binding and enforceable agreement for the sale of the Plaintiff's interest for HKD 438,000
  2. 2 Whether the 2nd Defendant made an express gift of the 30% down payment
  3. 3 Whether the 2nd Defendant has a beneficial interest in the Property by way of express trust or resulting trust

Ratio Decidendi

There was no binding sale agreement because the parties were not ad idem as to when and how completion and payment would occur (the Plaintiff demanded a cashier's order/solicitor's cheque paid at signing; the Defendants intended the usual two-stage conveyancing completion). The 2nd Defendant did not make a gift of the 30% down payment; on the evidence there was a common understanding and/or resulting trust entitling the 2nd Defendant to 30% beneficial interest, with the Plaintiff and 1st Defendant owning the remaining 70% as to 35% each. Consequentially the Plaintiff's partition claim and the Defendants' claim for specific performance were dismissed, and an account and inquiry was...

Court Disposition

Plaintiff's claim dismissed; Defendants' specific performance claim dismissed; Declaration that beneficial ownership is Plaintiff 35%, 1st Defendant 35%, 2nd Defendant 30%; direction for account and repayment; costs awarded to Defendants (order nisi).

Orders

  • Dismissal of the Plaintiff\'s applications under the Partition Ordinance
  • Dismissal of the Defendants\' claim for specific performance of the alleged sale