CHAN CHI WAI also known as CHAN SAU PING AND ANOTHER v. CHAN SAU WAH AND OTHERS

CHAN CHI WAI also known as CHAN SAU PING AND ANOTHER v. CHAN SAU WAH AND OTHERS

For the purposes of sections 36(b) and 37(4) DCO 'the land' refers to the entire registered property (the whole building) where the interest claimed is a fractional undivided share; the annual value of the whole building (HK$315,000) exceeds the District Court's jurisdictional limit (HK$240,000), so the counterclaim is outside District Court jurisdiction and the whole proceedings are transferred to the Court of First Instance.

Citation
CHAN CHI WAI also known as CHAN SAU PING AND ANOTHER v. CHAN SAU WAH AND OTHERS
Parties
1st Plaintiff: CHAN CHI WAI aka CHAN SAU PING; 2nd Plaintiff: CHAN SAU WO aka CHAN SAU WOO; 1st Defendant: CHAN SAU WAH; 2nd Defendant: DAI WAIFEN; 3rd Defendant: CHAN SAU HING
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
3 August 2016
Case Number
DCCJ1503/2014
Procedural Posture
Civil (possession and Equitable Counterclaim Concerning Land and Trust) / Application to Transfer Proceedings to Court of First Instance Under Section 41(3) District Court Ordinance
Outcome
The whole proceedings are transferred to the Court of First Instance; costs to follow the event in favour of the defendants; order nisi for costs to defendants with certificate for counsel, to be taxed if not agreed.
Legal Topics
Transfer of Proceedings, Jurisdictional Monetary Limit, District Court Jurisdiction, Constructive Trust, Tenancy in Common, Possession, Mesne Profits
Source Language
EN
Civil Procedure Land Law Equity Trusts Jurisdiction Transfer of Proceedings Jurisdictional Monetary Limit District Court Jurisdiction +4 more

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Parties

CHAN CHI WAI aka CHAN SAU PING

1st Plaintiff

CHAN SAU WO aka CHAN SAU WOO

2nd Plaintiff

CHAN SAU WAH

1st Defendant

DAI WAIFEN

2nd Defendant

CHAN SAU HING

3rd Defendant

Procedural Posture

Civil (possession and Equitable Counterclaim Concerning Land and Trust) / Application to Transfer Proceedings to Court of First Instance Under Section 41(3) District Court Ordinance

Legal Issues

  1. 1 Whether 'the land' in sections 36(b) and 37(4) District Court Ordinance refers to the whole building or only the disputed fractional interest
  2. 2 Whether the counterclaim for a 2/5 equitable interest in the building exceeds the District Court's monetary jurisdiction
  3. 3 Whether the whole proceedings should be transferred to the Court of First Instance under s41(3) DCO

Ratio Decidendi

For the purposes of sections 36(b) and 37(4) DCO 'the land' refers to the entire registered property (the whole building) where the interest claimed is a fractional undivided share; the annual value of the whole building (HK$315,000) exceeds the District Court's jurisdictional limit (HK$240,000), so the counterclaim is outside District Court jurisdiction and the whole proceedings are transferred to the Court of First Instance.

Court Disposition

The whole proceedings are transferred to the Court of First Instance; costs to follow the event in favour of the defendants; order nisi for costs to defendants with certificate for counsel, to be taxed if not agreed.

Orders

  • Whole proceedings transferred to the Court of First Instance pursuant to section 41(3) District Court Ordinance
  • Costs of the application to be paid to the defendants with certificate for counsel, to be taxed if not agreed (order nisi)