CHEUNG AU YUEN ROSALIND AND ANOTHER v. WONG KAN KIU AND ANOTHER

CHEUNG AU YUEN ROSALIND AND ANOTHER v. WONG KAN KIU AND ANOTHER

The court preferred the plaintiffs' evidence, found no contemporaneous company record or acknowledgement supporting the claimant's assertion that the HK$3,000,000 was a company distribution, and held the payment was a personal loan by Cheung repayable on demand; the counterclaim for an account of rents failed...

Source-derived case information.

Citation
CHEUNG AU YUEN ROSALIND AND ANOTHER v. WONG KAN KIU AND ANOTHER
Parties
Plaintiffs (executors of the Estate of Cheung Ka Kui Kenneth): Cheung Au Yuen Rosalind & Cheung Wing Hong Shannon; 1st Defendant (in Her Personal Capacity): Wong Kan Kiu; 2nd Defendant (in Her Capacity as Administratrix of the Estate of Chow You): Wong Kan Kiu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 August 2015
Case Number
HCA850/2011
Procedural Posture
High Court Action (loan Repayment and Account Between Estates) / Final Judgment (court of First Instance)
Outcome
Judgment entered for the plaintiffs against Wong Kan Kiu in her capacity as administratrix of the estate of Chow; claim against Wong Kan Kiu in her personal capacity dismissed; counterclaim dismissed.
Legal Topics
Loan Repayment, Dividend Distribution, Presumption of Loan (seldon V Davidson), Co Ownership and Account of Rents, Admissibility of Contemporaneous Evidence, Fiduciary/agency Duties Between Co Owners
Source Language
en
Equity Trusts Contract Probate Civil Remedies Loan Repayment Dividend Distribution Presumption of Loan (seldon V Davidson) +3 more

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Summary, issues, holding and outcome

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Parties

Cheung Au Yuen Rosalind & Cheung Wing Hong Shannon

Plaintiffs (executors of the Estate of Cheung Ka Kui Kenneth)

Wong Kan Kiu

1st Defendant (in Her Personal Capacity)

Wong Kan Kiu

2nd Defendant (in Her Capacity as Administratrix of the Estate of Chow You)

Procedural Posture

High Court Action (loan Repayment and Account Between Estates) / Final Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the HK$3,000,000 paid on 15 June 2006 was a loan or a distribution/dividend
  2. 2 Whether the administratrix or the individual defendant is liable for repayment
  3. 3 Whether the co-owner (or his estate) was under a duty to account for rental income from co-owned properties and whether the counterclaim succeeds

Ratio Decidendi

The court preferred the plaintiffs' evidence, found no contemporaneous company record or acknowledgement supporting the claimant's assertion that the HK$3,000,000 was a company distribution, and held the payment was a personal loan by Cheung repayable on demand; the counterclaim for an account of rents failed because mere co-ownership did not establish a fiduciary duty to account under the pleaded facts.

Court Disposition

Judgment entered for the plaintiffs against Wong Kan Kiu in her capacity as administratrix of the estate of Chow; claim against Wong Kan Kiu in her personal capacity dismissed; counterclaim dismissed.

Orders

  • Judgment for repayment of HK$3,000,000 against Wong Kan Kiu in her capacity as administratrix of the estate of Chow with interest from date of writ until today at the HKBC best lending rate plus 1% and thereafter at the judgment rate until payment
  • Claim against Wong Kan Kiu in her personal capacity dismissed