MOK TIM CHEONG v. MOK TIM MING AND ANOTHER

MOK TIM CHEONG v. MOK TIM MING AND ANOTHER

The judge found on the evidence that there was a common intention that the house be shared between the plaintiff and the 1st defendant and that the 1st defendant contributed significantly and acted to his detriment (design, construction involvement, loans, renovations, rental management). That established a constructive trust in favour of the 1st defendant entitling him to beneficial interest and exclusive possession rights; proprietary estoppel by silence was an alternative basis. Accordingly declarations and transfer orders were granted in favour of the defendants.

Citation
[2020] HKDC 1043
Parties
Plaintiff: Mok Tim Cheong; 1st Defendant: Mok Tim Ming
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
16 November 2020
Case Number
DCCJ2036/2018
Procedural Posture
Land/property Dispute (constructive Trust) / Judgment
Outcome
Judgment for the defendants: constructive trust declared for the 1st defendant; declarations and transfer orders made in favour of the 1st defendant; costs to defendants
Legal Topics
Constructive Trust, Resulting Trust, Proprietary Estoppel, Adverse Possession, Small House Policy, Title Transfer
Source Language
EN
Property Law Trusts and Equity Land Law Family Arrangements Constructive Trust Resulting Trust Proprietary Estoppel Adverse Possession +2 more

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Parties

Mok Tim Cheong

Plaintiff

Mok Tim Ming

1st Defendant

Procedural Posture

Land/property Dispute (constructive Trust) / Judgment

Legal Issues

  1. 1 Whether a common intention constructive trust arose in favour of the 1st defendant
  2. 2 Whether a resulting trust arises from contributions to the purchase/construction
  3. 3 Whether proprietary estoppel by silence is established

Ratio Decidendi

The judge found on the evidence that there was a common intention that the house be shared between the plaintiff and the 1st defendant and that the 1st defendant contributed significantly and acted to his detriment (design, construction involvement, loans, renovations, rental management). That established a constructive trust in favour of the 1st defendant entitling him to beneficial interest and exclusive possession rights; proprietary estoppel by silence was an alternative basis. Accordingly declarations and transfer orders were granted in favour of the defendants.

Court Disposition

Judgment for the defendants: constructive trust declared for the 1st defendant; declarations and transfer orders made in favour of the 1st defendant; costs to defendants

Orders

  • Declaration that the plaintiff holds one equal undivided one-third share in the Lot together with the right of exclusive possession of the 2nd floor and the roof of the House on trust for the 1st defendant
  • Declaration that the 1st defendant is entitled to a lifetime irrevocable licence to use the ground floor of the House for ancestral worshipping and family gatherings for free