ERIC EDWARD HOTUNG v. HO YUEN KI AND OTHERS

ERIC EDWARD HOTUNG v. HO YUEN KI AND OTHERS

Plaintiff failed to prove on the balance of probabilities, with the necessary cogency, that the Trusts were subject to an expressed power of revocation or the other alleged conditions; there was no resulting trust in the plaintiff's favour at the time of the transfers or allotments except for one pre-existing share held by the 1st defendant, so LARCO s6(1)(c) did not invalidate the declarations; claim dismissed except declaration that the 1st defendant holds one HEL share on trust for the plaintiff absolutely.

Citation
ERIC EDWARD HOTUNG v. HO YUEN KI AND OTHERS
Parties
Plaintiff: Eric Edward Hotung; 1st Defendant (trustee): Ho Yuen Ki; 2nd Defendant (beneficiary): Anthony Eric Ryan Hotung; 3rd Defendant (beneficiary): Sean Eric McLean Hotung; 4th Defendant (nominee Trustee): Hillhead Limited; 5th Defendant (beneficiary): Sheridan Patricia Hotung Shea; 6th Defendant (beneficiary; Defence Withdrawn): Gabrielle Marie Hotung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 March 2005
Case Number
HCA571/2003
Procedural Posture
Trusts and Proprietary Claims; Rectification and Mistake; Company/share Disputes / Judgment (court of First Instance)
Outcome
Claim dismissed except declaration that 1st defendant holds one HEL share on trust for the plaintiff absolutely.
Legal Topics
Rectification, Mistake, Resulting Trust, Revocability of Trusts, Formalities for Disposition (larco S6(1)(c)), Secret/nominee Trusts, Blank Instruments of Transfer
Source Language
EN
Trusts Equity Property Law Company Law Civil Procedure Evidence Rectification Mistake +5 more

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Parties

Eric Edward Hotung

Plaintiff

Ho Yuen Ki

1st Defendant (trustee)

Anthony Eric Ryan Hotung

2nd Defendant (beneficiary)

Sean Eric McLean Hotung

3rd Defendant (beneficiary)

Hillhead Limited

4th Defendant (nominee Trustee)

Sheridan Patricia Hotung Shea

5th Defendant (beneficiary)

Gabrielle Marie Hotung

6th Defendant (beneficiary; Defence Withdrawn)

Procedural Posture

Trusts and Proprietary Claims; Rectification and Mistake; Company/share Disputes / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the Trusts were subject to conditions (in particular a power of revocation) communicated to trustees
  2. 2 Whether the written declarations of trust should be rectified or set aside for mistake
  3. 3 Whether a resulting trust arose at the time of transfers/allotments triggering the writing requirement under LARCO s6(1)(c)

Ratio Decidendi

Plaintiff failed to prove on the balance of probabilities, with the necessary cogency, that the Trusts were subject to an expressed power of revocation or the other alleged conditions; there was no resulting trust in the plaintiff's favour at the time of the transfers or allotments except for one pre-existing share held by the 1st defendant, so LARCO s6(1)(c) did not invalidate the declarations; claim dismissed except declaration that the 1st defendant holds one HEL share on trust for the plaintiff absolutely.

Court Disposition

Claim dismissed except declaration that 1st defendant holds one HEL share on trust for the plaintiff absolutely.

Orders

  • Claim dismissed save for declaration re one HEL share held by 1st defendant for plaintiff
  • Parties to file written submissions on costs within 21 days of judgment