TIMMERTON COMPANY INC v. EQUITY TRUSTEE LTD AND ANOTHER

TIMMERTON COMPANY INC v. EQUITY TRUSTEE LTD AND ANOTHER

The Court held the plaintiff's pleaded case alleges knowing receipt (second category constructive trust) rather than a prior lawful assumption of fiduciary obligations; such recipients are non‑fiduciaries for the purposes of section 20(1)(b) and the plaintiff's claims are therefore time‑barred; consequently the...

Source-derived case information.

Citation
TIMMERTON COMPANY INC v. EQUITY TRUSTEE LTD AND ANOTHER
Parties
Plaintiff (respondent): TIMMERTON COMPANY INC; 1st Defendant (appellant): EQUITY TRUSTEE LIMITED (in its capacity as Trustee of The Hugh Surplus Trust); 2nd Defendant (appellant): HUGH SURPLUS LIMITED
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
21 November 2014
Case Number
CACV53/2014
Procedural Posture
Civil Appeal (court of Appeal) / Judgment on Appeal From HCA 2167 of 2012
Outcome
Appeal allowed; order granting leave to serve writ outside jurisdiction set aside; plaintiff's claim held time‑barred under Limitation Ordinance s20(2).
Legal Topics
Constructive Trust, Knowing Receipt, Limitation Period, Fiduciary Duty, Service Out of Jurisdiction
Source Language
en
Trusts Limitation Equity Civil Procedure Constructive Trust Knowing Receipt Limitation Period Fiduciary Duty +1 more

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Parties

TIMMERTON COMPANY INC

Plaintiff (respondent)

EQUITY TRUSTEE LIMITED (in its capacity as Trustee of The Hugh Surplus Trust)

1st Defendant (appellant)

HUGH SURPLUS LIMITED

2nd Defendant (appellant)

Procedural Posture

Civil Appeal (court of Appeal) / Judgment on Appeal From HCA 2167 of 2012

Legal Issues

  1. 1 Whether the defendants are 'trustees' within the meaning of section 20(1)(b) Limitation Ordinance such that the plaintiff's claim is not time‑barred
  2. 2 Whether the alleged constructive trust is of the first category (de facto/trustee de son tort) or the second category (knowing receipt/dishonest assister) for limitation purposes
  3. 3 Whether there is a serious issue to be tried to permit service out of jurisdiction

Ratio Decidendi

The Court held the plaintiff's pleaded case alleges knowing receipt (second category constructive trust) rather than a prior lawful assumption of fiduciary obligations; such recipients are non‑fiduciaries for the purposes of section 20(1)(b) and the plaintiff's claims are therefore time‑barred; consequently the order permitting service out of jurisdiction was set aside.

Court Disposition

Appeal allowed; order granting leave to serve writ outside jurisdiction set aside; plaintiff's claim held time‑barred under Limitation Ordinance s20(2).

Orders

  • Set aside the order of Master K Lo dated 28 January 2013 granting leave to issue and serve the concurrent amended writ of summons on the defendants outside jurisdiction
  • Order nisi that the plaintiff pays the defendants' costs of this appeal and below, to be taxed if not agreed