SO MAN AND ANOTHER v. NG KWOK CHING (also known as DICKSON NG, also known as NG KWOK CHING DICKSON and also known as DICKSON NG KWOK CHING) AND ANOTHER

SO MAN AND ANOTHER v. NG KWOK CHING (also known as DICKSON NG, also known as NG KWOK CHING DICKSON and also known as DICKSON NG KWOK CHING) AND ANOTHER

On the balance of probabilities the court found a common intention constructive trust (alternatively a resulting trust) in favour of Ng Kai Shing and So Man: key contemporaneous evidence (1996 handwritten declaration), the HK$2.4M bank transfer corresponding to half the purchase price and premium, the parties' separation before purchase and long occupation and payment of outgoings established that Dickson had no beneficial interest. Consequently Dickson holds his legal title on trust for Ng Kai Shing (and So Man are tenants in common in equal shares), the charging order is discharged and Chiu’s counterclaim for sale is dismissed; further, Chiu failed to plead or pursue Partition Ordinance...

Citation
[2024] HKCFI 687
Parties
Plaintiff (1st Plaintiff / Original Action): So Man; Plaintiff (2nd Plaintiff / Original Action): Ng Kai Shing; 1st Defendant / Judgment Debtor: Ng Kwok Ching (Dickson); Plaintiff (counterclaim) / Judgment Creditor: Chiu Tin Yau Lesley
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 March 2024
Case Number
HCMP674/2021
Procedural Posture
Civil Action and Enforcement of Charging Order (consolidated Actions) / Trial Judgment (decision After Trial)
Outcome
Claim for declaration granted in favour of So Man and Ng Kai Shing; Chiu’s counterclaim for sale dismissed; Charging Order discharged
Legal Topics
Common Intention Constructive Trust, Resulting Trust, Charging Order, Order for Sale, Partition, Limitation of Actions, Locus Standi of Equitable Chargee, Witness Credibility
Source Language
EN
Equity Trusts Property Law Civil Procedure Enforcement Limitation Law Common Intention Constructive Trust Resulting Trust +6 more

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Parties

So Man

Plaintiff (1st Plaintiff / Original Action)

Ng Kai Shing

Plaintiff (2nd Plaintiff / Original Action)

Ng Kwok Ching (Dickson)

1st Defendant / Judgment Debtor

Chiu Tin Yau Lesley

Plaintiff (counterclaim) / Judgment Creditor

Procedural Posture

Civil Action and Enforcement of Charging Order (consolidated Actions) / Trial Judgment (decision After Trial)

Legal Issues

  1. 1 Whether the Flat is beneficially owned by So Man and Ng Kai Shing or by So Man and Ng Kwok Ching
  2. 2 Whether a common intention constructive trust arose and/or a resulting trust in favour of Ng Kai Shing
  3. 3 Whether Ng Kai Shing paid HK$2.4 million towards purchase and the legal effect of that payment

Ratio Decidendi

On the balance of probabilities the court found a common intention constructive trust (alternatively a resulting trust) in favour of Ng Kai Shing and So Man: key contemporaneous evidence (1996 handwritten declaration), the HK$2.4M bank transfer corresponding to half the purchase price and premium, the parties' separation before purchase and long occupation and payment of outgoings established that Dickson had no beneficial interest. Consequently Dickson holds his legal title on trust for Ng Kai Shing (and So Man are tenants in common in equal shares), the charging order is discharged and Chiu’s counterclaim for sale is dismissed; further, Chiu failed to plead or pursue Partition Ordinance...

Court Disposition

Claim for declaration granted in favour of So Man and Ng Kai Shing; Chiu’s counterclaim for sale dismissed; Charging Order discharged

Orders

  • Declaration that Ng Kwok Ching (Dickson) has no beneficial interest in the Flat
  • Declaration that the Flat is held by Ng Kwok Ching on trust for Ng Kai Shing and by So Man as tenants in common in equal shares