LEUNG MAN WAI AND ANOTHER v. STATE CHINA FINANCE LTD

LEUNG MAN WAI AND ANOTHER v. STATE CHINA FINANCE LTD

The court held there are serious questions to be tried on both the alleged clog on the equity of redemption and the claimed resulting trust; the factual conflicts cannot be resolved at interlocutory stage and the balance of convenience and adequacy of damages supported granting a conditional interlocutory injunction. Accordingly completion was restrained pending trial subject to payment into court and undertakings.

Citation
LEUNG MAN WAI AND ANOTHER v. STATE CHINA FINANCE LTD
Parties
Plaintiff/defendant: State China Finance Limited; Defendant/1st Plaintiff: Leung Man Wai; 2nd Plaintiff: Sin Sau Ching
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
2 July 2010
Case Number
DCCJ2213/2010
Procedural Posture
Interlocutory Applications Concerning Charging Order, Possession and Sale of Residential Property; Trust Claim / Interlocutory Hearing on Applications for Interlocutory Injunctions
Outcome
Interlocutory injunctions granted restraining State China from completing the sale subject to conditions; costs ordered nisi in the cause with certificate for counsel
Legal Topics
Charging Order, Equity of Redemption, Resulting Trust, Interlocutory Injunction, Possession and Order for Sale, Undertaking as to Damages, Land Registration Priority
Source Language
EN
Property Law Equity and Trusts Civil Procedure Mortgage and Charging Orders Contract (sale) Charging Order Equity of Redemption Resulting Trust +4 more

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Parties

State China Finance Limited

Plaintiff/defendant

Leung Man Wai

Defendant/1st Plaintiff

Sin Sau Ching

2nd Plaintiff

Procedural Posture

Interlocutory Applications Concerning Charging Order, Possession and Sale of Residential Property; Trust Claim / Interlocutory Hearing on Applications for Interlocutory Injunctions

Legal Issues

  1. 1 Whether State China’s conduct amounted to a clog on the equity of redemption or otherwise improperly prevented redemption prior to sale
  2. 2 Whether Sin Sau Ching holds a beneficial interest in the Property by resulting trust such that the charging order was void
  3. 3 Whether interlocutory injunction restraining completion should be granted pending trial

Ratio Decidendi

The court held there are serious questions to be tried on both the alleged clog on the equity of redemption and the claimed resulting trust; the factual conflicts cannot be resolved at interlocutory stage and the balance of convenience and adequacy of damages supported granting a conditional interlocutory injunction. Accordingly completion was restrained pending trial subject to payment into court and undertakings.

Court Disposition

Interlocutory injunctions granted restraining State China from completing the sale subject to conditions; costs ordered nisi in the cause with certificate for counsel

Orders

  • Abridgment of time for service and leave to rely on affirmations in DCMP 1985/2009 granted in DCCJ 2213/2010
  • Upon undertaking to pay damages and on condition that Leung and Sin pay HK$457000 into court by noon 6 July 2010, State China is restrained from completing the sale and purchase agreement dated 3 May 2010 until trial of DCCJ 2213/2010 or further order (liberty to apply)