TONG KA NIN v. TAM CHUN WAH AND ANOTHER

TONG KA NIN v. TAM CHUN WAH AND ANOTHER

The court upheld the Master: the plaintiff adduced sufficient, uncontradicted contemporaneous payment records and affirmations to prove a post-acquisition common intention constructive trust; applying Chan Chui Mee the parties intended shares to be quantified later so the plaintiff's additional mortgage payments enlarged an indeterminate beneficial interest rather than effected dispositions; CPO s.5(2) preserves constructive trusts from the writing requirement; the 2nd defendant produced no positive contradictory evidence and fresh evidence was not admitted on appeal under Ladd v Marshall; appeal dismissed and Master's 73%:27% apportionment upheld.

Citation
TONG KA NIN v. TAM CHUN WAH AND ANOTHER
Parties
Plaintiff: Tong Ka Nin; 1st Defendant: Tam Chun Wah (Bankrupt); 2nd Defendant: Loyal Luck Trading Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 March 2012
Case Number
HCMP912/2011
Procedural Posture
HCMP 912/2011 Miscellaneous Proceedings; Appeal Against Master's Decision on Beneficial Interests/charging Order / Appeal Decision (court of First Instance)
Outcome
Appeal dismissed; Master's decision of 20 January 2012 upheld.
Legal Topics
Post Acquisition Common Intention Constructive Trust, Beneficial Ownership Apportionment, Charging Order Priority, Conveyancing and Property Ordinance Ss.5 & 6, Admissibility of Fresh Evidence on Appeal (ladd V Marshall)
Source Language
EN
Property Law Trusts Bankruptcy Civil Procedure Conveyancing Post Acquisition Common Intention Constructive Trust Beneficial Ownership Apportionment Charging Order Priority +2 more

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Parties

Tong Ka Nin

Plaintiff

Tam Chun Wah (Bankrupt)

1st Defendant

Loyal Luck Trading Limited

2nd Defendant

Procedural Posture

HCMP 912/2011 Miscellaneous Proceedings; Appeal Against Master's Decision on Beneficial Interests/charging Order / Appeal Decision (court of First Instance)

Legal Issues

  1. 1 Whether the plaintiff proved a post-acquisition common intention constructive trust
  2. 2 Whether evidence was sufficiently compelling to infer a change in beneficial shares after acquisition
  3. 3 Whether the Agreement is unenforceable for lack of writing under CPO ss.5 and 6

Ratio Decidendi

The court upheld the Master: the plaintiff adduced sufficient, uncontradicted contemporaneous payment records and affirmations to prove a post-acquisition common intention constructive trust; applying Chan Chui Mee the parties intended shares to be quantified later so the plaintiff's additional mortgage payments enlarged an indeterminate beneficial interest rather than effected dispositions; CPO s.5(2) preserves constructive trusts from the writing requirement; the 2nd defendant produced no positive contradictory evidence and fresh evidence was not admitted on appeal under Ladd v Marshall; appeal dismissed and Master's 73%:27% apportionment upheld.

Court Disposition

Appeal dismissed; Master's decision of 20 January 2012 upheld.

Orders

  • Appeal dismissed
  • Master's apportionment of beneficial interests upheld: Plaintiff 73% : 1st Defendant 27%