MATHAN KANER AND ANOTHER v. JOHN MICHAEL JERWOOD AND OTHERS

MATHAN KANER AND ANOTHER v. JOHN MICHAEL JERWOOD AND OTHERS

On the balance of probabilities the plaintiff agreed to and disposed of his beneficial interest by December 1981; part performance (including a HK$400,000 payment on account and conduct consistent with the sale) cured the lack of writing required by LARCO s6 and the transaction was not void; the sale was at arm's length and for the plaintiff's advantage and, in any event, the plaintiff was estopped from asserting any beneficial interest after December 1981.

Citation
MATHAN KANER AND ANOTHER v. JOHN MICHAEL JERWOOD AND OTHERS
Parties
1st Plaintiff: Mathan Kaner; 2nd Plaintiff: Jewelry Fashions and Pearls Inc. (trading as Jewelry Fashions Inc.); 1st Defendant: John Michael Jerwood; 2nd Defendant: White Birch Establishment; 3rd Defendant: Pearl Trade Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 March 1985
Case Number
HCA15052/1983
Procedural Posture
Equity/trusts Action Concerning Disposition of Beneficial Interest in Company Shares; Breach of Trust and Accounting / High Court Judgment Delivered
Outcome
2nd Plaintiff's claim dismissed; 1st Plaintiff's claim against 3rd Defendant dismissed; 1st Plaintiff's claim against 1st and 2nd Defendants succeeds in part; counterclaim for 2nd Defendant succeeded.
Legal Topics
Disposition of Equitable Interest, Part Performance, Statute of Frauds (formality Requirements), Trustee Purchasing Beneficiary's Interest, Account and Inquiry, Estoppel by Representation
Source Language
EN
Trusts Equity Property Law Contract Law Estoppel Disposition of Equitable Interest Part Performance Statute of Frauds (formality Requirements) +3 more

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Parties

Mathan Kaner

1st Plaintiff

Jewelry Fashions and Pearls Inc. (trading as Jewelry Fashions Inc.)

2nd Plaintiff

John Michael Jerwood

1st Defendant

White Birch Establishment

2nd Defendant

Pearl Trade Company Limited

3rd Defendant

Procedural Posture

Equity/trusts Action Concerning Disposition of Beneficial Interest in Company Shares; Breach of Trust and Accounting / High Court Judgment Delivered

Legal Issues

  1. 1 Whether the plaintiff disposed of his beneficial interest in the shares to the defendant
  2. 2 What were the terms of any agreement to transfer the beneficial interest
  3. 3 When did any transfer/assignment/disposition take place

Ratio Decidendi

On the balance of probabilities the plaintiff agreed to and disposed of his beneficial interest by December 1981; part performance (including a HK$400,000 payment on account and conduct consistent with the sale) cured the lack of writing required by LARCO s6 and the transaction was not void; the sale was at arm's length and for the plaintiff's advantage and, in any event, the plaintiff was estopped from asserting any beneficial interest after December 1981.

Court Disposition

2nd Plaintiff's claim dismissed; 1st Plaintiff's claim against 3rd Defendant dismissed; 1st Plaintiff's claim against 1st and 2nd Defendants succeeds in part; counterclaim for 2nd Defendant succeeded.

Orders

  • Declaration that the 2nd Defendant became trustee of the trust shares with the 1st Defendant in favour of the 1st Plaintiff from 28 September 1976 until December 1981
  • Order for inquiry as to what trust property was received or possessed by the 1st and 2nd Defendants and disposition thereof