LI SZE FAT v. CHENG KA LEUNG TOMMY AND ANOTHER

LI SZE FAT v. CHENG KA LEUNG TOMMY AND ANOTHER

The Formal Sale and Purchase Agreement, registered on 4 April 1997 and relating back to 13 March 1997, created a registrable equitable lien for the Purchaser which took priority over the 2nd Defendant's express declaration of trust because the trust document was not registered until 4 September 1998; by reducing the unwritten equity to a written, registrable trust the 2nd Defendant subjected herself to the Land Registration Ordinance and could not defeat the earlier registered lien.

Citation
LI SZE FAT v. CHENG KA LEUNG TOMMY AND ANOTHER
Parties
Plaintiff: Li Sze Fat; 1st Defendant: Cheng Ka Leung Tommy; 2nd Defendant: Cheung Kin Ho
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 April 2000
Case Number
HCA14280/1998
Procedural Posture
Order 86 Summary Judgment (civil) / Appeal From Master's Order (rehearing in Chambers)
Outcome
Both appeals dismissed
Legal Topics
Purchaser's Lien, Declaration of Trust, Resulting Trust, Registration Priority, Housing Ordinance Premium
Source Language
EN
Property Law Equity Land Registration Contract Law Housing Law Purchaser's Lien Declaration of Trust Resulting Trust +2 more

Case Brief

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Parties

Li Sze Fat

Plaintiff

Cheng Ka Leung Tommy

1st Defendant

Cheung Kin Ho

2nd Defendant

Procedural Posture

Order 86 Summary Judgment (civil) / Appeal From Master's Order (rehearing in Chambers)

Legal Issues

  1. 1 Whether the Purchaser's equitable lien (from payment of deposits) registered under the Land Registration Ordinance predates and takes priority over the 2nd Defendant's declared trust interest which was registered later
  2. 2 Whether the trust document transformed an unwritten resulting trust into an express written trust and thus became registrable and subject to registration priority rules
  3. 3 Whether the 1st Defendant had any defence based on alleged breaches by the Purchaser (failure to pay premium; unlawful sub-sale)

Ratio Decidendi

The Formal Sale and Purchase Agreement, registered on 4 April 1997 and relating back to 13 March 1997, created a registrable equitable lien for the Purchaser which took priority over the 2nd Defendant's express declaration of trust because the trust document was not registered until 4 September 1998; by reducing the unwritten equity to a written, registrable trust the 2nd Defendant subjected herself to the Land Registration Ordinance and could not defeat the earlier registered lien.

Court Disposition

Both appeals dismissed

Orders

  • Appeals dismissed
  • Order nisi that the defendants (appellants) pay the costs of the appeal to the Plaintiff