YAN MEI and YAN DONG the Joint and Several Administrators of the Estate of FONG LAP CHUNG GEORGE, Deceased AND ANOTHER v. FONG LAP SHAN

YAN MEI and YAN DONG the Joint and Several Administrators of the Estate of FONG LAP CHUNG GEORGE, Deceased AND ANOTHER v. FONG LAP SHAN

The court granted interim payments in part because the claim for possession satisfied O 29 r 12(b)'s first precondition and a provisional view of the evidence supported that the plaintiffs would be liable for mortgage repayments and rates/Government rent during the action; accordingly the court ordered payment of the calculated shortfalls ($95,983 and $98,770) and periodic monthly payments ($45,000) and ongoing quarterly rates payments as just and necessary to prevent prejudice to the defendant pending final determination.

Citation
[2024] HKCFI 3464
Parties
1st Plaintiff; Joint and Several Administrator of the Estate of Fong Lap Chung George (deceased): Yan Mei; 2nd Plaintiff; Joint and Several Administrator of the Estate of Fong Lap Chung George (deceased): Yan Dong; Defendant; Registered Owner of House 10: Fong Lap Shan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 November 2024
Case Number
HCA1562/2022
Procedural Posture
Civil Action (consolidated HCA 1562/2022 and HCA 104/2023) – Interlocutory Application for Interim Payment Under O 29 R 12(b) RHC / Interlocutory (decision on Summons for Interim Payment)
Outcome
Interim payment application granted in part; costs order nisi that there shall be no order as to costs (subject to 14 day variation application provision)
Legal Topics
Interim Payment, Use and Occupation, Constructive Trust, Possession, Mesne Profits, Mortgage Repayments, Rates and Government Rent, Costs
Source Language
EN
Property Law Equity and Trusts Civil Procedure Landlord and Tenant Law Probate/intestacy Interim Payment Use and Occupation Constructive Trust +5 more

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Parties

Yan Mei

1st Plaintiff; Joint and Several Administrator of the Estate of Fong Lap Chung George (deceased)

Yan Dong

2nd Plaintiff; Joint and Several Administrator of the Estate of Fong Lap Chung George (deceased)

Fong Lap Shan

Defendant; Registered Owner of House 10

Procedural Posture

Civil Action (consolidated HCA 1562/2022 and HCA 104/2023) – Interlocutory Application for Interim Payment Under O 29 R 12(b) RHC / Interlocutory (decision on Summons for Interim Payment)

Legal Issues

  1. 1 Whether the pre‑conditions of O 29 r 12(b) RHC are satisfied for an interim payment by the plaintiffs to the defendant
  2. 2 Whether the plaintiffs are provisionally liable for mortgage repayments and rates and government rent in respect of House 10 notwithstanding the contested title/constructive trust claim
  3. 3 Quantum of any interim payment and whether periodic payments should be ordered

Ratio Decidendi

The court granted interim payments in part because the claim for possession satisfied O 29 r 12(b)'s first precondition and a provisional view of the evidence supported that the plaintiffs would be liable for mortgage repayments and rates/Government rent during the action; accordingly the court ordered payment of the calculated shortfalls ($95,983 and $98,770) and periodic monthly payments ($45,000) and ongoing quarterly rates payments as just and necessary to prevent prejudice to the defendant pending final determination.

Court Disposition

Interim payment application granted in part; costs order nisi that there shall be no order as to costs (subject to 14 day variation application provision)

Orders

  • 1. The 1st Plaintiff to pay the Defendant the sum of HKD 95,983 forthwith in respect of mortgage repayments for House 10 for period 1 February 2017 to 30 June 2024.
  • 2. The 1st Plaintiff to pay the Defendant HKD 45,000 monthly (3 days in advance of the first day of each month) from after 30 June 2024 until final judgment or further order to enable the Defendant to effect mortgage repayments of House 10.