MAK KIN KEE v. MAK PUN TAI

MAK KIN KEE v. MAK PUN TAI

The alleged oral declaration of trust was void under Statute of Frauds s.7, there was no probative evidence of a service tenancy, and the plaintiff was therefore sole beneficial owner; on the disputed accounting the judge made an arbitrary assessment (half of the rents in the accounts for the period) due to evidentiary uncertainty and awarded sums accordingly, plus injunction and costs.

Citation
MAK KIN KEE v. MAK PUN TAI
Parties
Plaintiff: MAK KIN KEE; Defendant: MAK PUN TAI
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
10 April 1970
Case Number
DCCJ4886/1969
Procedural Posture
Civil Property Action / District Court Judgment
Outcome
Judgment for plaintiff; defendant's counterclaim dismissed; injunction granted; costs to plaintiff; stay of execution one month; parties to calculate sums or Registrar to calculate if no agreement.
Legal Topics
Declaration of Trust, Statute of Frauds S.7, Service Tenancy, Rents and Profits, Accounting, Possession
Source Language
EN
Property Trusts Landlord and Tenant Probate/administration Injunctions Declaration of Trust Statute of Frauds S.7 Service Tenancy +3 more

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Parties

MAK KIN KEE

Plaintiff

MAK PUN TAI

Defendant

Procedural Posture

Civil Property Action / District Court Judgment

Legal Issues

  1. 1 Whether an oral declaration of trust over the flat took effect
  2. 2 Whether the defendant occupied under a service tenancy
  3. 3 Whether the defendant must account and pay rents and profits to the plaintiff

Ratio Decidendi

The alleged oral declaration of trust was void under Statute of Frauds s.7, there was no probative evidence of a service tenancy, and the plaintiff was therefore sole beneficial owner; on the disputed accounting the judge made an arbitrary assessment (half of the rents in the accounts for the period) due to evidentiary uncertainty and awarded sums accordingly, plus injunction and costs.

Court Disposition

Judgment for plaintiff; defendant's counterclaim dismissed; injunction granted; costs to plaintiff; stay of execution one month; parties to calculate sums or Registrar to calculate if no agreement.

Orders

  • Judgment for plaintiff for amounts to be calculated by parties representing the sums awarded (if no agreement Registrar to calculate)
  • Injunction restraining defendant from using the flat (as claimed)