ERIC EDWARD HOTUNG v. HO YUEN KI AND OTHERS

ERIC EDWARD HOTUNG v. HO YUEN KI AND OTHERS

The plaintiff failed to prove on the balance of probabilities, with sufficient cogency, that he communicated and established an intention to reserve an enforceable power of revocation or the other pleaded conditions to the trustees or their solicitors; contemporaneous documentary and witness evidence did not support resulting trusts at the time of transfer/allotment (except one share held by the 1st defendant), so LARCO s6(1)(c) did not invalidate the transfers; accordingly the declarations of trust stand and the plaintiff's main claim is dismissed save for a declaration that the 1st defendant holds one share in HEL on trust for the plaintiff absolutely.

Citation
ERIC EDWARD HOTUNG v. HO YUEN KI AND OTHERS
Parties
Plaintiff: Eric Edward Hotung; 1st Defendant: Ho Yuen Ki; 2nd Defendant: Anthony Eric Ryan Hotung; 3rd Defendant: Sean Eric McLean Hotung; 4th Defendant: Hillhead Limited; 5th Defendant: Sheridan Patricia Hotung Shea; 6th Defendant: Gabrielle Marie Hotung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 March 2005
Case Number
HCMP4511/2002
Procedural Posture
Civil Trusts/rectification/mistake / Judgment (court of First Instance)
Outcome
Claim dismissed except declaration that 1st defendant holds one share in Hotung Enterprises Limited on trust for the plaintiff absolutely
Legal Topics
Revocation of Trust, Resulting Trust, Rectification for Mistake, Secret Trust, Disposition of Equitable Interest, Formalities (larco/section 53 Lpa)
Source Language
EN
Equity and Trusts Civil Procedure Property Law Company Law Revocation of Trust Resulting Trust Rectification for Mistake Secret Trust +2 more

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Parties

Eric Edward Hotung

Plaintiff

Ho Yuen Ki

1st Defendant

Anthony Eric Ryan Hotung

2nd Defendant

Sean Eric McLean Hotung

3rd Defendant

Hillhead Limited

4th Defendant

Sheridan Patricia Hotung Shea

5th Defendant

Gabrielle Marie Hotung

6th Defendant

Procedural Posture

Civil Trusts/rectification/mistake / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the settlor reserved an enforceable power of revocation when the trusts were constituted
  2. 2 Whether the declarations of trust should be set aside or rectified for mistake or failure to reflect the settlor's intention
  3. 3 Whether a resulting trust arose at the time of transfer/allotment such that section 6(1)(c) LARCO invalidated the disposition

Ratio Decidendi

The plaintiff failed to prove on the balance of probabilities, with sufficient cogency, that he communicated and established an intention to reserve an enforceable power of revocation or the other pleaded conditions to the trustees or their solicitors; contemporaneous documentary and witness evidence did not support resulting trusts at the time of transfer/allotment (except one share held by the 1st defendant), so LARCO s6(1)(c) did not invalidate the transfers; accordingly the declarations of trust stand and the plaintiff's main claim is dismissed save for a declaration that the 1st defendant holds one share in HEL on trust for the plaintiff absolutely.

Court Disposition

Claim dismissed except declaration that 1st defendant holds one share in Hotung Enterprises Limited on trust for the plaintiff absolutely

Orders

  • Declaration that Ho Yuen Ki holds one share in Hotung Enterprises Limited on trust for the plaintiff absolutely
  • Claim otherwise dismissed