Hong Kong Case Law: Decisions & Judgments

Topic

Rule against perpetuities

Legal area

Court

28 Aug 2024

LCTD v. CKMC

Citation

[2024] HKFC 156
Court

Family Court
Case number

FCMC6340/2018

On the balance of probabilities the Interveners failed to prove the existence of express trusts over the CEC and CL shares because critical evidence from the settlor was absent, testimony was inconsistent and largely self‑serving, there was no contemporaneous documentary evidence, and the arrangements were more consistent with an informal family distribution than legally enforceable trusts; accordingly the Points of Claim are dismissed and no declaration of beneficial ownership is granted to the Interveners.
3 May 2024

NORMAN GUY DONALD AND ANOTHER v. LEE MICHAEL CHAK CHUEN in his capacity as executor of the estate of LI PAK IU AND OTHERS

Citation

[2024] HKCA 403
Court

Court of Appeal
Case number

CACV203/2022

Clause 5(2)(f) is, on its language and context, a single gift for Ching Sheung which is void for perpetuity; because the gift was void ab initio there was no subject matter out of which the Trustees could exercise the proviso to benefit any son, and therefore the appeal fails; alternatively, the proviso would amount to a trust power (not a mere power) and the appeal would still fail; leave to appeal to the Court of Final Appeal is refused as the questions are not of great general or public importance nor reasonably arguable.
11 Sept 2023

NORMAN GUY DONALD AND ANOTHER v. LEE MICHAEL CHAK CHUEN in his capacity as executor of the estate of LI PAK IU AND OTHERS

Citation

[2023] HKCA 1032
Court

Court of Appeal
Case number

CACV203/2022

Clause 5(2)(f) must be read as a whole: the primary gift for Ching Sheung was void ab initio for perpetuity reasons and the proviso depended on that gift so there was no property for the proviso to operate on; therefore the proviso cannot stand independently and the appeal is dismissed; costs orders against the 5th defendant are upheld.
21 Apr 2022

NORMAN GUY DONALD AND ANOTHER v. LEE MICHAEL CHAK CHUEN in his capacity as executor of the estate of LI PAK IU AND OTHERS

Citation

[2022] HKCFI 1106
Court

Court of First Instance
Case number

HCMP610/2021

The proviso in clause 5(2)(f) is inter-related with the primary (ancestor worship) gift and cannot be severed; in any event the proviso, if severable, conferred only a mere power which has lapsed by unreasonable delay; accordingly the whole clause 5(2)(f) is void for infringing the rule against perpetuities and the one-sixth share falls to be distributed among the residuary beneficiaries under clauses 5(2)(a)-(e).
1 Nov 2012

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS

Citation

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS
Court

Court of Appeal
Case number

CACV237/2010

The bankruptcy order was upheld because the debt from the Court of Appeal costs order was valid and properly the subject of a statutory demand; the Appellant's allegations of fraud/perversion lacked evidential foundation and were irrelevant to the costs order which resulted from his own requests for indulgence and defective pleadings; the CPO does not negate the rule against perpetuities nor rescue the Appellant's unpleaded claims; the stay was refused because the appeal was without merit.
1 Nov 2012

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS

Citation

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS
Court

Court of Appeal
Case number

CACV128/2010

The bankruptcy order was upheld because the debt of $72,500 arising from the Court of Appeal costs order was properly the subject of a statutory demand and petition; the Appellant's allegations of fraud/perversion lacked evidential basis and were irrelevant to the costs order; the Appellant persistently failed to plead his substantive claims (including those premised on the CPO) and thus could not rely on them to defeat the petition; attempts to re-litigate struck-out claims amounted to abuse of process; consequently the appeals and application for a stay were without merit and dismissed.
10 Mar 2010

LEE TAK YEE v. LEE TAK YAN AND OTHERS

Citation

LEE TAK YEE v. LEE TAK YAN AND OTHERS
Court

Court of First Instance
Case number

HCA766/2008

The Statement of Claim was struck out because it failed to plead or prove essential elements of an express, constructive or resulting trust or of a contract (no declaration, vesting, acceptance by trustees, or contractual assent by defendants); the pleaded trust was void or unenforceable (perpetuity and uncertainty) and inconsistent with the express terms of the Global Settlement Agreement (estoppel by deed); many defendants were improperly joined or had no knowledge and plaintiff could not identify alleged breaches — accordingly the claim was unsustainable and an abuse of process.
25 Jan 2008

TANG CHE TAI AND OTHERS v. TANG ON KWAI AND OTHERS

Citation

TANG CHE TAI AND OTHERS v. TANG ON KWAI AND OTHERS
Court

Court of Appeal
Case number

CACV137/2007

The court dismissed the defendants' appeal and held the 1982 decision was not binding on the membership of the Tong: it was not enforceable in perpetuity under Chinese law and custom (and was found to have been procured by duress on the facts), distributions of assets devoted to ancestral worship cannot be made absent unanimous consent of adult members (or conforming representation rules), and the 2002 pai-ji distribution was unlawful; accordingly an injunction restraining further distributions was granted while permitting limited customary payments.
19 Sept 2007

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS

Citation

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS
Court

Court of Appeal
Case number

CACV161/2006

The claim as pleaded disclosed no reasonable cause of action: the pleaded characteristics were those of traditional tongs which Hong Kong law does not recognize for the asserted proprietary and partnership rights (except limited application for New Territories land), and the pleaded partnership by birth without contractual foundation is not a partnership recognised by Hong Kong law; the Plaintiff had not pleaded reliance on the Chinese Partnerships Ordinance, so the proper course was to adjourn the appeal and permit re‑amendment rather than allow the defective pleadings to stand.
10 Mar 2006

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS

Citation

CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS
Court

Court of First Instance
Case number

HCA4101/2001

The statement of claim was struck out because it is founded on membership of a Tong and an inherited partnership model which, as pleaded, create inalienable and indefinite interests offending the rule against perpetuities and are not enforceable by Hong Kong courts in relation to property on Hong Kong Island (and are not saved by the New Territories Ordinance); the partnership alleged is not a recognised contractual partnership under Hong Kong/English law and would be contrary to public policy; amendment could not cure these fundamental defects.