KWAN HUNG SHING AS EXECUTOR OF THE ESTATE OF HO SHUK MING, DECEASED v. FONG KWOK SHAN, CHRISTINE AND OTHERS

KWAN HUNG SHING AS EXECUTOR OF THE ESTATE OF HO SHUK MING, DECEASED v. FONG KWOK SHAN, CHRISTINE AND OTHERS

The court held the presumption of resulting trust arose because the Deceased received no consideration for the assignments to the 2nd–20th defendants and that presumption was not rebutted by reliance on the illegal scheme; accordingly the 2nd–20th defendants hold the respective properties on trust for the plaintiff. The 1st defendant remained in wrongful possession after termination/demand and was liable in trespass; mesne profits of HK$823,530 were awarded and interest ordered. The 1st/15th defendants' counterclaim for unjust enrichment failed. Relief against the 21st defendant was unnecessary and dismissed; the building licences/permission letters are matters for the Director and are...

Citation
[2019] HKCFI 1687
Parties
Plaintiff (executor): Kwan Hung Shing (executor of the estate of the deceased); 1st Defendant: 1st defendant; 2nd Defendant: 2nd defendant; 3rd Defendant: 3rd defendant; 4th Defendant: 4th defendant; 5th Defendant: 5th defendant; 6th Defendant: 6th defendant; 7th Defendant: 7th defendant; 8th Defendant: 8th defendant; 9th Defendant: 9th defendant; 10th Defendant: 10th defendant; 11th Defendant: 11th defendant; 12th Defendant: 12th defendant; 13th Defendant: 13th defendant; 14th Defendant: 14th defendant; 15th Defendant: 15th defendant; 16th Defendant: 16th defendant; 17th Defendant: 17th defendant; 18th Defendant: 18th defendant; 19th Defendant: 19th defendant; 20th Defendant: 20th defendant; 21st Defendant: 21st defendant (Director of Lands / Government)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 July 2019
Case Number
HCA265/2012
Procedural Posture
Civil Land/property/trust/tort / Trial Judgment (court of First Instance)
Outcome
Judgment for the plaintiff against the 1st to 20th defendants; declarations of resulting trust granted; mesne profits awarded against the 1st defendant; counterclaim by 1st and 15th defendants dismissed; plaintiff's claim against 21st defendant dismissed; costs ordered as stated
Legal Topics
Resulting Trust, Trespass, Mesne Profits, Illegality, Small House Policy, Misrepresentation, Estoppel, Unjust Enrichment, Declaratory Relief, Tracing
Source Language
EN
Land Law Equity Trust Tort Contract Administrative Law Resulting Trust Trespass +8 more

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Parties

Kwan Hung Shing (executor of the estate of the deceased)

Plaintiff (executor)

1st defendant

1st Defendant

2nd defendant

2nd Defendant

3rd defendant

3rd Defendant

4th defendant

4th Defendant

5th defendant

5th Defendant

6th defendant

6th Defendant

7th defendant

7th Defendant

8th defendant

8th Defendant

9th defendant

9th Defendant

10th defendant

10th Defendant

11th defendant

11th Defendant

12th defendant

12th Defendant

13th defendant

13th Defendant

14th defendant

14th Defendant

15th defendant

15th Defendant

16th defendant

16th Defendant

17th defendant

17th Defendant

18th defendant

18th Defendant

19th defendant

19th Defendant

20th defendant

20th Defendant

21st defendant (Director of Lands / Government)

21st Defendant

Procedural Posture

Civil Land/property/trust/tort / Trial Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the development agreements and related transactions were illegal under the New Territories Small House Policy and consequently void
  2. 2 Whether the assignments gave rise to a presumption of resulting trust in favour of the plaintiff and whether defendants could rebut that presumption
  3. 3 Whether the 1st defendant was wrongfully in possession (trespass) and liable for mesne profits

Ratio Decidendi

The court held the presumption of resulting trust arose because the Deceased received no consideration for the assignments to the 2nd–20th defendants and that presumption was not rebutted by reliance on the illegal scheme; accordingly the 2nd–20th defendants hold the respective properties on trust for the plaintiff. The 1st defendant remained in wrongful possession after termination/demand and was liable in trespass; mesne profits of HK$823,530 were awarded and interest ordered. The 1st/15th defendants' counterclaim for unjust enrichment failed. Relief against the 21st defendant was unnecessary and dismissed; the building licences/permission letters are matters for the Director and are...

Court Disposition

Judgment for the plaintiff against the 1st to 20th defendants; declarations of resulting trust granted; mesne profits awarded against the 1st defendant; counterclaim by 1st and 15th defendants dismissed; plaintiff's claim against 21st defendant dismissed; costs ordered as stated

Orders

  • Declarations that the 2nd to 20th defendants held and hold the respective Properties on trust for the plaintiff
  • Order that the 2nd to 20th defendants convey and deliver vacant possession of the respective Properties to the plaintiff (per paragraphs specified in judgment)