MA WAH YAN AND ANOTHER DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS

MA WAH YAN AND ANOTHER DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS

The court dismissed the application for orders to charge or sell properties subject to a public charity because s.20A HCO precludes imposing a charging order where the judgment debtor does not hold the beneficial interest; Newco is not the alter ego of D1; Re Snowden principles do not justify charging or sale of charitable trust property in these circumstances; inherent jurisdiction cannot be exercised to override the statutory charging regime and, even if available, would not be exercised here because plaintiffs failed to exhaust statutory remedies and acted with unclean hands.

Citation
[2021] HKCFI 257
Parties
Plaintiffs (administrators of the Estate of Bai Yu Shu): Ma Wah Yan and Wong Chi Leung; 1st Defendant; Counterclaim Plaintiff: Dharma Realm Buddhist Association, Inc.; 2nd Defendant: All occupiers of Flat A9, 5th Floor Mirador Mansion No.58 Nathan Road Kowloon; 3rd Defendant: All occupiers of 11th Floor No.31 Wong Nai Chung Road Hong Kong; 4th Defendant: All occupiers of Lot No.25 Demarcation District No.307 Lantau Island New Territories; 5th Defendant: All occupiers of Section A Mang Cheung Po Lot No.5 Mang Cheung Po Lantau Island New Territories; 6th Defendant: Yip Wan Tung; 7th Defendant: Koo Pak Chau; 8th Defendant: Lee Cham; 2nd Defendant (by Counterclaim): The Secretary for Justice
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 January 2021
Case Number
HCA1193/2007
Procedural Posture
Enforcement of Judgment; Civil Enforcement Proceedings / Decision on Enforcement (judgment Dated 28 January 2021)
Outcome
Amended summons dismissed
Legal Topics
Charging Order, Order to Sell (sale of Trust Property), Ex Gratia Payment From Charity Funds, Inherent Jurisdiction, Charitable Trust Vesting, Mesne Profits, Fieri Facias and Execution, Garnishee Proceedings
Source Language
EN
Civil Procedure Charity Law Trusts and Equitable Remedies Enforcement of Judgments Public Law (secretary for Justice Involvement) Charging Order Order to Sell (sale of Trust Property) Ex Gratia Payment From Charity Funds +5 more

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Parties

Ma Wah Yan and Wong Chi Leung

Plaintiffs (administrators of the Estate of Bai Yu Shu)

Dharma Realm Buddhist Association, Inc.

1st Defendant; Counterclaim Plaintiff

All occupiers of Flat A9, 5th Floor Mirador Mansion No.58 Nathan Road Kowloon

2nd Defendant

All occupiers of 11th Floor No.31 Wong Nai Chung Road Hong Kong

3rd Defendant

All occupiers of Lot No.25 Demarcation District No.307 Lantau Island New Territories

4th Defendant

All occupiers of Section A Mang Cheung Po Lot No.5 Mang Cheung Po Lantau Island New Territories

5th Defendant

Yip Wan Tung

6th Defendant

Koo Pak Chau

7th Defendant

Lee Cham

8th Defendant

The Secretary for Justice

2nd Defendant (by Counterclaim)

Procedural Posture

Enforcement of Judgment; Civil Enforcement Proceedings / Decision on Enforcement (judgment Dated 28 January 2021)

Legal Issues

  1. 1 Whether a charging order or sale can be imposed on properties held for a public charity to satisfy judgment debts against the legal owner
  2. 2 Whether the court can order ex gratia payments from charitable trust property to satisfy judgment debts under Re Snowden/Re Henderson
  3. 3 Whether a newly incorporated trustee (Newco) is the alter ego of the judgment debtor to permit enforcement against it

Ratio Decidendi

The court dismissed the application for orders to charge or sell properties subject to a public charity because s.20A HCO precludes imposing a charging order where the judgment debtor does not hold the beneficial interest; Newco is not the alter ego of D1; Re Snowden principles do not justify charging or sale of charitable trust property in these circumstances; inherent jurisdiction cannot be exercised to override the statutory charging regime and, even if available, would not be exercised here because plaintiffs failed to exhaust statutory remedies and acted with unclean hands.

Court Disposition

Amended summons dismissed

Orders

  • Amended summons dismissed
  • Costs of 1st Defendant (Dharma Realm Buddhist Association, Inc.) to follow the event and be borne by the Plaintiffs, to be taxed if not agreed