WONG HO WING v. WONG HO KWAN

WONG HO WING v. WONG HO KWAN

On the found facts the younger brother promised to transfer his one-third interest in consideration of being made joint tenant of the Kowloon flat; equity imposes a constructive trust because it would be unconscionable for the younger brother to retain the interest; s.5 CPO does not defeat constructive trusts; therefore the one-third interest is held on constructive trust for the elder brother and must be assigned to him.

Citation
WONG HO WING v. WONG HO KWAN
Parties
Plaintiff (younger Brother): WONG HO WING; Defendant (elder Brother): WONG HO KWAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 December 2002
Case Number
HCA4823/2001
Procedural Posture
Civil Action Proprietary/trust Dispute / Judgment (court of First Instance)
Outcome
Plaintiff's claim dismissed; Defendant's counterclaim allowed; declaration that the one-third interest is held on constructive trust for the defendant and must be assigned to him
Legal Topics
Constructive Trust, Assignment of Land, Mesne Profits, S.5 Conveyancing and Property Ordinance, Costs
Source Language
EN
Trusts Property Law Equity Conveyancing Constructive Trust Assignment of Land Mesne Profits S.5 Conveyancing and Property Ordinance +1 more

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Parties

WONG HO WING

Plaintiff (younger Brother)

WONG HO KWAN

Defendant (elder Brother)

Procedural Posture

Civil Action Proprietary/trust Dispute / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether a constructive trust arose over the one-third interest in the New Territories flat
  2. 2 Whether the younger brother must assign his registered one-third interest to the elder brother
  3. 3 Whether s.5 of the Conveyancing and Property Ordinance prevents recognition of a constructive trust

Ratio Decidendi

On the found facts the younger brother promised to transfer his one-third interest in consideration of being made joint tenant of the Kowloon flat; equity imposes a constructive trust because it would be unconscionable for the younger brother to retain the interest; s.5 CPO does not defeat constructive trusts; therefore the one-third interest is held on constructive trust for the elder brother and must be assigned to him.

Court Disposition

Plaintiff's claim dismissed; Defendant's counterclaim allowed; declaration that the one-third interest is held on constructive trust for the defendant and must be assigned to him

Orders

  • Declare that the one-third interest in Flat B New Territories flat standing in the plaintiff's name is held on trust for the defendant
  • Order that the plaintiff assign that one-third interest to the defendant