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Hongkong Bank Trustee Ltd v Ho Shai Lai And Others

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date27 December 1984
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP2879/1984
CourtHigh Court (Hong Kong)
HCMP002879/1984 HONGKONG BANK TRUSTEE LTD v. HO SHAI LAI AND OTHERS

HCMP002879/1984
IN THE HIGH COURT OF JUSTICE
MISCELLANEOUS PROCEEDINGS		 NO. 2879 OF 1984 &
NO. 2880 OF 1984

IN THE MATTER of the Trusts of the Will dated the 4th day of July, 1955, the first codicil thereto dated the 4th day of July, 1955, the second , third and fourth codicils thereto all dated the 20th day of July, 1955 of Sir Robert Ho Tung late of No. 8 Seymour Road, Victoria in the Colony of Hong Kong, Company Director, deceased

and

IN THE MATTERof the Trustee Ordinance,Cap. 29

and

IN THE MATTER of the Variation of Trusts Ordinance, Cap. 253

________________

BETWEEN:-

HONGKONG BANK TRUSTEE LIMITED

Plaintiff

AND
HO SHAI LAI, ROBERT HO TUNG NGAI and HO MIN KWAN

Defendants

__________________

Coram: The Honourable Mr. Justice Jones in Chambers

Dates of hearing: 5, 10 & 27 December 1984

Date of delivery of judgment: 27 December 1984

_________

JUDMENT

_________

1. I have before me two originating summonses, the first issued under the Trustee Ordinance and the second under the Variation of Trusts Ordinance by the plaintiff the executor and trustee of the will of Sir Robert Ho Tung deceased (the testator).

2. The testator died on the 26th April 1956 and probate of his will dated the 4th July 1955 and four codicils was granted to the plaintiff on the 26th May 1956. Pursuant to the terms of the will the plaintiff holds half of the residuary estate in trust to pay the income to the testator's second son Ho Shai Lai the first named defendant during his life and after his death upon trust as to capital and income for his child or children who being male attain the age of twenty one or being female attain that age or marry, and if more than one in equal shares absolutely. Ho Shai Lai is aged 78 and is married to Hesta Ho Hung Ki Fun who is 77. They have two children a son Robert Ho Hung Ngai and a daughter Ho Min Kwan both of whom are sui juris. They are the second and third named defendants.

3. The testator's elder son Ho Shai Kim is now dead and the other moiety of the residuary estate has already been distributed.. The testator's daughter Daisy who was entitled to certain benefits druing her life is also dead. The first and second named defendants live in Hong Kong whilst the third named defendant resides in the United States where she has lived for 10 years with her husband. She has 4 children all of whom live in the United States.

4. The main part of the trust property in Hong Kong consists of leasehold properties estimated to be worth approximately US$55,000,000. The remainder is principally invested in shares and securities abroad valued at about US$15,000,000.

5. The originating summons issued under section 56 of the Trustee Ordinance seeks an extension of the plaintiff's powers under the will whilst the originating summons under section 3(1)(c) of the Variation of Trusts Ordinance seeks the court's approval to an arrangement enlarging the powers of the plaintiff as trustee or other trustees for the time being of the issue on behalf of persons unborn. Both summonses seek orders appointing the second and third defendants to represent all persons unborn who might become beneficially entitled to an interest in the moiety. The defendants and all persons unborn have been separately represented in these proceedings

Section 56(1) of the Trustee Ordinance reads: -

"Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, expenditure, or other transaction, is in the opinion of the court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument, if any, or by law, the court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, if any, as the court may think fit and may direct in what manner any money authorize to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.".

Previous orders have been made by the court under this section to enable the plaintiff to exercise powers of developing, leasing, selling and exchanging the leasehold properties which were not included in the will. Section 3(1)(c) of the Variation of Trusts Ordinance provides:-

"

 (1) Where property is held on trusts arising, whether before or after the commencement of this Ordinance, under any will, settlement or other disposition, the court may if it thinks fit by order approve on behalf of -

(a)

(b)

(c)

(d)

 ...................................

....................................

any person unborn; .....

....................................
any arrangement (by whomsoever proposed, and whether or not there is any other person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trusts, or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts:

Provided that ............... the court shall not approve an arrangement on behalf of any person unless the carrying out thereof would be for the benefit of that person.

(2)

(3)

 ..........................

..........................
(4) Nothing in this section shall be taken to limit the powers conferred by section 12(2) of the Supreme Court Ordinance or by section 56 of the Trustee Ordinance.".

6. As the three defendants are all sui juris they could consent to the proposed scheme without the necessity of the court's approval. However, as there is a remote possibility that further remaindermen not yet born would be entitled to share in the moiety of Ho Shai Lai upon his death, and several beneficiaries referred to in the will have now disappeared and cannot be traced the approval of the court to the scheme is required. The possibility that a beneficiary might charge or alienate his interest which is prohibited by...

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