KWOK MEI HA MAY v. CHIU YUNG

KWOK MEI HA MAY v. CHIU YUNG

Defendant failed to discharge the legal burden to prove the pleaded verbal agreement and consequent CICTs; contemporaneous documentary evidence (notably the power of attorney), the context of the small house scheme, lack of particulars about premium and timing, and credibility findings made the Defendant's account inherently improbable; consequently the Plaintiff, holding paper title, is entitled to possession and the Defendant's proprietary counterclaim fails.

Citation
[2020] HKCFI 2405
Parties
Plaintiff: Plaintiff; Defendant: Defendant; Registered Owner/seller: Ho; Attorney/nominee/developer: Tang; Deceased Third Party: Charles (Tang Chik Kit)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 September 2020
Case Number
HCA3079/2015
Procedural Posture
Possession of Residential Property; Mesne Profits; Counterclaim for Declaration and Transfer Based on Constructive Trust / Judgment After Trial (trial Held 28 30 July 2020; Judgment 14 September 2020)
Outcome
Judgment for the Plaintiff for possession of the Property; Defendant's counterclaim dismissed.
Legal Topics
Common Intention Constructive Trust, Bona Fide Purchaser for Value Without Notice, Constructive Notice/occupation, Small House (ding) Scheme, Hearsay and Evidential Weight, Costs and Mesne Profits
Source Language
EN
Property Law Equity and Trusts Land Registration Civil Procedure Common Intention Constructive Trust Bona Fide Purchaser for Value Without Notice Constructive Notice/occupation Small House (ding) Scheme +2 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Ho

Registered Owner/seller

Tang

Attorney/nominee/developer

Charles (Tang Chik Kit)

Deceased Third Party

Procedural Posture

Possession of Residential Property; Mesne Profits; Counterclaim for Declaration and Transfer Based on Constructive Trust / Judgment After Trial (trial Held 28 30 July 2020; Judgment 14 September 2020)

Legal Issues

  1. 1 Whether there was a verbal agreement between Ho and Charles regarding transfer of the Property
  2. 2 Whether Charles acquired a beneficial interest in the Property (Charles/CICT)
  3. 3 Whether Charles could and did create a beneficial interest in favour of the Defendant (Chiu/CICT)

Ratio Decidendi

Defendant failed to discharge the legal burden to prove the pleaded verbal agreement and consequent CICTs; contemporaneous documentary evidence (notably the power of attorney), the context of the small house scheme, lack of particulars about premium and timing, and credibility findings made the Defendant's account inherently improbable; consequently the Plaintiff, holding paper title, is entitled to possession and the Defendant's proprietary counterclaim fails.

Court Disposition

Judgment for the Plaintiff for possession of the Property; Defendant's counterclaim dismissed.

Orders

  • Possession order to be agreed between the parties
  • Liberty to apply and invitation for written submissions on mesne profits or directions within 14 days