LAU KWAI KIU v. BIAN XINTIAN AND ANOTHER

LAU KWAI KIU v. BIAN XINTIAN AND ANOTHER

On the balance of probabilities the plaintiff paid HK$100,000 (established by inference from three bank drafts) and bore construction costs; those payments give rise to a resulting trust and, given the parties' common intention evidenced by the Letters of Confirmation, a constructive trust; enforcement of the agreement does not require a false declaration to the Lands Department for the 1985 application (Lands Department records confirm no declaration) and the arrangement is not contrary to public policy (mere technical breach of grant condition). Therefore the plaintiff is entitled to a declaration of beneficial interest and specific performance.

Citation
LAU KWAI KIU v. BIAN XINTIAN AND ANOTHER
Parties
Plaintiff: Ms Lau; Defendants: 1st and 2nd Defendants; Deceased/interested Party: Mr Lau (deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 November 2010
Case Number
HCMP344/2009
Procedural Posture
Civil Property Dispute (trusts/equity) / Judgment Delivered After Trial
Outcome
Judgment for the plaintiff: declaration of beneficial interest and order for specific performance; order nisi for costs to plaintiff; potential referral to Law Society regarding concealment reserved.
Legal Topics
Small House Policy, Constructive Trust, Resulting Trust, Illegality and Unenforceability, Specific Performance, Alienation Restrictions, False Representation to Government
Source Language
EN
Property Law Trusts and Equity Public Policy Administrative Law Small House Policy Constructive Trust Resulting Trust Illegality and Unenforceability +3 more

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Parties

Ms Lau

Plaintiff

1st and 2nd Defendants

Defendants

Mr Lau (deceased)

Deceased/interested Party

Procedural Posture

Civil Property Dispute (trusts/equity) / Judgment Delivered After Trial

Legal Issues

  1. 1 Whether there was an agreement between the grantee (Mr Lau) and the plaintiff to hold the property on trust and transfer beneficial interest to the plaintiff
  2. 2 Whether payment of sums and payment of construction costs gave rise to a resulting trust
  3. 3 Whether any agreement or resulting/constructive trust is unenforceable for illegality due to (a) false representation to the government in the land grant application or (b) being contrary to public policy

Ratio Decidendi

On the balance of probabilities the plaintiff paid HK$100,000 (established by inference from three bank drafts) and bore construction costs; those payments give rise to a resulting trust and, given the parties' common intention evidenced by the Letters of Confirmation, a constructive trust; enforcement of the agreement does not require a false declaration to the Lands Department for the 1985 application (Lands Department records confirm no declaration) and the arrangement is not contrary to public policy (mere technical breach of grant condition). Therefore the plaintiff is entitled to a declaration of beneficial interest and specific performance.

Court Disposition

Judgment for the plaintiff: declaration of beneficial interest and order for specific performance; order nisi for costs to plaintiff; potential referral to Law Society regarding concealment reserved.

Orders

  • Declaration that the plaintiff is the beneficial owner of the Property
  • Specific performance of the Agreement in favour of the plaintiff