24 May 2024
The Default Judgment was regular; there was no material non-disclosure affecting process; the defendant failed to adduces potentially credible evidence showing a real prospect of success on a common intention constructive trust or equitable accounting claim; the Setting Aside Summons is dismissed and costs are awarded to the plaintiff on a nisi basis.
18 Apr 2024
The court found on the balance of probabilities that there was a common intention between Lee and Ivy that Vivien hold legal title as nominee and that Lee and Ivy were equal beneficial owners; Lee's direct contribution to half the downpayment and incidental payments and the parties' conduct justified a common intention constructive trust. Vivien's remortgage (BEA Mortgage) without consent constituted a breach of trust (with Ivy's instigation), equitable accounting and credits were appropriate, and an order for sale under the Partition Ordinance was granted; the defendants' counterclaim failed…
27 May 2021
The Court held that D3 succeeded on proprietary estoppel because sufficient assurance, reliance and detriment existed prior to the cut-off (death of the last promisor in 1999) and ordered transfer of the Plaintiff's 2/3 beneficial share in Lot 1101 DD221 to D3; conversely, the Court rejected any free-standing modern equitable jurisdiction to order occupation rent absent ouster, agreement or partition/analogous equitable accounting and dismissed the counterclaim for mesne profits and occupation rent by D1 and D2.
19 Dec 2016
The Court of Appeal upheld the trial judge's factual findings that the Letter of Ownership, signed by all directors, reflected the common intention and created an express trust or, alternatively, a common intention constructive trust in favour of the plaintiff from 8 November 2004; there was no pleaded or evidential basis to treat the mortgage advance or later payments as creating a beneficial interest for D2 or to disturb the judge's findings, and the appeal was therefore dismissed with costs.
7 Dec 2016
The Court was not satisfied that the beneficial ownership differed from the legal title on the facts and therefore declared the Property vested in equal shares between the Trustees and the Co-owner as tenants in common; however the Co-owner's discharge of mortgage payments since April 2008 is to be the subject of an equitable accounting and the Property ordered sold with net proceeds held pending that accounting.
30 Sept 2016
The court found that an express agreement/understanding existed that the registered transferees (Clara and Agnes) would hold the Kam Fai Properties as nominees for Father; Father altered his position in reliance and it would be unconscionable for the defendants to assert legal title, therefore a constructive trust arises and the defendants must account for the beneficial interest and proceeds.
9 Jun 2015
The court granted the trustee's application for an order for sale because the law permits sale without unanimous co-owner consent, the respondents did not establish that refusal would better serve all co-owners or that a sale would cause very great hardship, and issues of equitable accounting are to be resolved on distribution rather than by blocking sale.
29 Nov 2013
Defendants failed to discharge the burden of proving that the beneficial interests differed from their legal joint tenancy; contemporaneous documents (Memorandum of Nomination, Statement of Affairs, attendance notes) and conduct supported a shared intention or at least justified treating mortgage liability as equal contribution; therefore each defendant holds a 50% beneficial interest as tenants in common. Non est factum failed in respect of the Memorandum; evidence that payments were solely from Madam Lai was not accepted.
9 Jul 2013
The court found the original common intention of equal ownership changed after the breakup and that it was not possible to ascertain precise shares by direct evidence; applying Jones v Kernott the court imputed a fair division based on the whole course of dealings and quantified the parties' post-breakup contributions, concluding the net sale proceeds should be divided in the ratio 4:6 in favour of the defendant.
25 Aug 2010
Court accepted defendants' evidence that the HK$3,000,000 was a loan and the property was transferred to the 1st defendant as security, rejected the plaintiff's trust claim and claim against the 2nd defendant for knowing assistance, and ordered interest at bank best lending rate plus 2% from end of initial three-month period to 11 June 2008, with parties to calculate the sum and liberty to apply to ascertain interest.