HUI SHUI KAY v. HON TO AND ANOTHER

HUI SHUI KAY v. HON TO AND ANOTHER

The Declaration of Trust dated 7 March 2002 was genuine and established that beneficial ownership vested in the plaintiff prior to the bankruptcy; the trustees' asserted settlement was a counter-offer and did not constitute agreement; because the trustees have no claim to the property they were obliged to vacate the registration of the bankruptcy order and the court ordered relief in favour of the plaintiff; costs were awarded to the plaintiff on an indemnity basis assessed at HKD 200,000 to be borne by the estate in the first instance with a hearing for trustees to show cause why they should not personally bear costs.

Citation
HUI SHUI KAY v. HON TO AND ANOTHER
Parties
Plaintiff: HUI SHUI KAY; 1st Defendant (bankrupt): HON TO; 2nd Defendant (joint and Several Trustees): FRED LEE and CHOW WAI LAN CHRISTINE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 October 2017
Case Number
HCMP3399/2016
Procedural Posture
Bankruptcy/property Miscellaneous Proceedings (hcmp 3399/2016) / Judgment (26 October 2017)
Outcome
Declaration of trust granted in favour of the plaintiff; order nisi made to vacate registration and for re-transfer; costs awarded to plaintiff on indemnity basis assessed at HKD 200,000 to be borne by the estate in the first instance; trustees ordered to show cause why they should not personally bear costs; further...
Legal Topics
Declaration of Trust, Resulting Trust, Constructive Trust, Registration of Bankruptcy Order, Vacating Registration, Costs Indemnity, Trustees' Duties
Source Language
EN
Bankruptcy Trusts Property Law Civil Procedure Declaration of Trust Resulting Trust Constructive Trust Registration of Bankruptcy Order +3 more

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Parties

HUI SHUI KAY

Plaintiff

HON TO

1st Defendant (bankrupt)

FRED LEE and CHOW WAI LAN CHRISTINE

2nd Defendant (joint and Several Trustees)

Procedural Posture

Bankruptcy/property Miscellaneous Proceedings (hcmp 3399/2016) / Judgment (26 October 2017)

Legal Issues

  1. 1 Whether the Declaration of Trust dated 7 March 2002 validly vested beneficial ownership in the plaintiff prior to the bankruptcy
  2. 2 Whether the trustees had validly reached a prior settlement with the plaintiff
  3. 3 Whether a registration of a bankruptcy order made under the Bankruptcy Rules can or must be vacated where the trustee has no claim to the property

Ratio Decidendi

The Declaration of Trust dated 7 March 2002 was genuine and established that beneficial ownership vested in the plaintiff prior to the bankruptcy; the trustees' asserted settlement was a counter-offer and did not constitute agreement; because the trustees have no claim to the property they were obliged to vacate the registration of the bankruptcy order and the court ordered relief in favour of the plaintiff; costs were awarded to the plaintiff on an indemnity basis assessed at HKD 200,000 to be borne by the estate in the first instance with a hearing for trustees to show cause why they should not personally bear costs.

Court Disposition

Declaration of trust granted in favour of the plaintiff; order nisi made to vacate registration and for re-transfer; costs awarded to plaintiff on indemnity basis assessed at HKD 200,000 to be borne by the estate in the first instance; trustees ordered to show cause why they should not personally bear costs; further...

Orders

  • Declaration that the 1st defendant held the property on trust for the plaintiff (referencing Declaration of Trust dated 7 March 2002)
  • Order to vacate registration of the bankruptcy order and memorandum to court of resolution at the Land Registry against the Property