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 refused to grant a charge or order to sell because section 20A HCO confines charging orders to interests beneficially owned by the judgment debtor or narrowly defined trustee situations and the Two Properties are held for a public charity, not beneficially by D1; Newco is not the alter ego of D1; Re Snowden/Re Henderson do not justify charging or sale of charitable trust property; the court will not exercise inherent jurisdiction to override the statutory scheme, particularly where plaintiffs had not exhausted available remedies and equity principles (clean hands) disfavor relief.

Citation
[2021] HKCFI 257
Parties
Plaintiffs: MA WAH YAN and WONG CHI LEUNG, the Administrators of the estate of BAI YU SHU (白玉書) alias TO LUN alias PRIEST TO-LUN alias SHIN TO LUN alias SIK TO LUN alias SIH TO LUN, deceased; 1st Defendant; Also Plaintiff in Related Counterclaim: DHARMA REALM BUDDHIST ASSOCIATION, INC. (法界佛教總會); 2nd Defendant (unknown Occupiers): All occupiers of the property known as Flat A9 on 5th Floor, Mirador Mansion, No.58 Nathan Road, Kowloon (Defendants whose names are unknown to the Plaintiffs); 3rd Defendant (unknown Occupiers): All occupiers of the property known as 11th Floor, No.31 Wong Nai Chung Road, Hong Kong (Defendants whose names are unknown to the Plaintiffs); 4th Defendant (unknown Occupiers): All occupiers of the property known as Lot No.25 in Demarcation District No.307, Lantau Island, New Territories (Defendants whose names are unknown to the Plaintiffs); 5th Defendant (unknown Occupiers): All occupiers of the property known as Section A of Mang Cheung Po Lot No.5, Mang Cheung Po, Lantau Island, New Territories (Defendants whose names are unknown to the Plaintiffs); 6th Defendant: YIP WAN TUNG (葉運通); 7th Defendant: KOO PAK CHAU (顧柏秋); 8th Defendant: LEE CHAM (李湛); 2nd Defendant (by Counterclaim) and Intervener on Charity Matters: THE SECRETARY FOR JUSTICE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 January 2021
Case Number
HCA1190/2007
Procedural Posture
Enforcement of Judgment Debts and Proprietary Enforcement Against Property Held on Charitable Trust / Decision on Enforcement (chambers Judgment)
Outcome
Amended summons dismissed
Legal Topics
Charging Order, Order to Sell, Ex Gratia Payments From Charity, Inherent Jurisdiction, High Court Ordinance S20 A/s20 B, Rules of the High Court Order 45
Source Language
EN
Charity Law Civil Procedure Trusts and Equity Enforcement of Judgments Administrative/ Public Law (secretary for Justice Involvement) Charging Order Order to Sell Ex Gratia Payments From Charity +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 12 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

MA WAH YAN and WONG CHI LEUNG, the Administrators of the estate of BAI YU SHU (白玉書) alias TO LUN alias PRIEST TO-LUN alias SHIN TO LUN alias SIK TO LUN alias SIH TO LUN, deceased

Plaintiffs

DHARMA REALM BUDDHIST ASSOCIATION, INC. (法界佛教總會)

1st Defendant; Also Plaintiff in Related Counterclaim

All occupiers of the property known as Flat A9 on 5th Floor, Mirador Mansion, No.58 Nathan Road, Kowloon (Defendants whose names are unknown to the Plaintiffs)

2nd Defendant (unknown Occupiers)

All occupiers of the property known as 11th Floor, No.31 Wong Nai Chung Road, Hong Kong (Defendants whose names are unknown to the Plaintiffs)

3rd Defendant (unknown Occupiers)

All occupiers of the property known as Lot No.25 in Demarcation District No.307, Lantau Island, New Territories (Defendants whose names are unknown to the Plaintiffs)

4th Defendant (unknown Occupiers)

All occupiers of the property known as Section A of Mang Cheung Po Lot No.5, Mang Cheung Po, Lantau Island, New Territories (Defendants whose names are unknown to the Plaintiffs)

5th Defendant (unknown Occupiers)

YIP WAN TUNG (葉運通)

6th Defendant

KOO PAK CHAU (顧柏秋)

7th Defendant

LEE CHAM (李湛)

8th Defendant

THE SECRETARY FOR JUSTICE

2nd Defendant (by Counterclaim) and Intervener on Charity Matters

Procedural Posture

Enforcement of Judgment Debts and Proprietary Enforcement Against Property Held on Charitable Trust / Decision on Enforcement (chambers Judgment)

Legal Issues

  1. 1 Whether a charging order or sale can be imposed on property held on a public charity to satisfy judgment debts
  2. 2 Whether section 20A of the High Court Ordinance permits charging property held on charitable trusts where the judgment debtor is not the beneficial owner
  3. 3 Whether the Court may use Order 45 r1/r9 or inherent jurisdiction to circumvent statutory limits and impose a charge or sale on trust property

Ratio Decidendi

The court refused to grant a charge or order to sell because section 20A HCO confines charging orders to interests beneficially owned by the judgment debtor or narrowly defined trustee situations and the Two Properties are held for a public charity, not beneficially by D1; Newco is not the alter ego of D1; Re Snowden/Re Henderson do not justify charging or sale of charitable trust property; the court will not exercise inherent jurisdiction to override the statutory scheme, particularly where plaintiffs had not exhausted available remedies and equity principles (clean hands) disfavor relief.

Court Disposition

Amended summons dismissed

Orders

  • Amended summons dismissed (no order to charge or sell the Two Properties)
  • Costs of D1 to follow the event and be borne by the Plaintiffs, to be taxed if not agreed