CHEUNG SAI LON v. CHEUNG SAI HA AND ANOTHER

CHEUNG SAI LON v. CHEUNG SAI HA AND ANOTHER

On the pleaded facts the plaintiff has a strong and obvious proprietary case entitling him to a declaration that House 72 was held on trust for him and to vesting of title and delivery of possession; however the claimed monetary sums for unauthorised withdrawals, missing rental income and FF Proceeds were not claims for liquidated demands within O.19 r.2 and therefore default judgment for those sums was refused and those issues were ordered for trial and assessment with directions for disclosure and expert evidence.

Citation
[2020] HKCFI 2551
Parties
Plaintiff: Cheung Sai Lon; 1st Defendant: Cheung Sai Ha; 2nd Defendant: Cheung Sai Ha and Cheung Sai Kuen (as executrices of the estate of Cheung Hung Kwong, deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 October 2020
Case Number
HCA2218/2019
Procedural Posture
Civil Action (proprietary, Trust and Restitution Claims) / Default Judgment Application Under Order 19 R.7; Hearing of Summons and Directions for Trial of Remaining Issues
Outcome
Declaration granted that Deceased and 2nd defendant held House 72 on trust for plaintiff; trustees removed and legal and beneficial title vested in plaintiff; delivery of vacant possession and title documents ordered; mesne profits to be assessed; interlocutory injunction continued; monetary and tracing claims...
Legal Topics
Common Intention Constructive Trust, Resulting Trust, Joint Bank Account Presumptions, Knowing Receipt, Dishonest Assistance, Mesne Profits, Default Judgment (o.19 R.7), Tracing of Proceeds, Equitable Compensation
Source Language
EN
Equity Trusts Property Law Civil Procedure Unjust Enrichment Tracing Commercial Fraud Common Intention Constructive Trust +8 more

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Parties

Cheung Sai Lon

Plaintiff

Cheung Sai Ha

1st Defendant

Cheung Sai Ha and Cheung Sai Kuen (as executrices of the estate of Cheung Hung Kwong, deceased)

2nd Defendant

Procedural Posture

Civil Action (proprietary, Trust and Restitution Claims) / Default Judgment Application Under Order 19 R.7; Hearing of Summons and Directions for Trial of Remaining Issues

Legal Issues

  1. 1 Whether House No.72 is held on trust for the plaintiff (CICT or resulting trust)
  2. 2 Whether the sums claimed for unauthorised withdrawals and missing rental income constitute a liquidated demand permitting default judgment
  3. 3 Whether the proceeds of sale of FF Shops trace into the TSH Shop and give rise to a proprietary or monetary remedy against defendants

Ratio Decidendi

On the pleaded facts the plaintiff has a strong and obvious proprietary case entitling him to a declaration that House 72 was held on trust for him and to vesting of title and delivery of possession; however the claimed monetary sums for unauthorised withdrawals, missing rental income and FF Proceeds were not claims for liquidated demands within O.19 r.2 and therefore default judgment for those sums was refused and those issues were ordered for trial and assessment with directions for disclosure and expert evidence.

Court Disposition

Declaration granted that Deceased and 2nd defendant held House 72 on trust for plaintiff; trustees removed and legal and beneficial title vested in plaintiff; delivery of vacant possession and title documents ordered; mesne profits to be assessed; interlocutory injunction continued; monetary and tracing claims...

Orders

  • Declaration that Cheung Hung Kwong, deceased and the 2nd defendant were holding House No.72 Tai Shui Hang on trust for the sole benefit of the plaintiff and all traceable fruits and proceeds thereof
  • Order that the Deceased and the 2nd defendant be removed as trustee of House 72