IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
ACTION NO. 4886 OF 1969
|MAK KIN KEE
|MAK PUN TAI
Coram: Morley-John, D.J.
Date of Judgment: 10 April 1970
1. This case is concerned with the property known as Flat D, Gillies Manson 27-37 Gillies Avenue, Kowloon. This property which I shall refer to hereafter as "the flat" was originally purchased in 1964, by one Mak Joy, the father of the plaintiff and the defendant. Mak Joy died intestate on the 11th June 1966 leaving as sole issue the plaintiff and the defendant. The defendant had been married long ago by Chinese Law and Custom, and according to such law and custom, upon her marriage she ceased to be a member of her own family and entered the family of her husband, and also under such law and custom she would not benefit from her father's estate upon an intestacy. After the death of Mak Joy letters of administration of his estate were granted to the plaintiff as only next of kin on 29th December 1967, and the flat then became vested in the plaintiff as administrator. By an assent dated 17th September 1968 executed by the plaintiff as sole surviving son and sole beneficiary and registered in the Land Office by Memorial No. 642990 the flat became vested in the plaintiff in his personal capacity.
2. The defendant who prior to her father's death had been living in the flat continued to live there, and rented out various cubicles to subtenants.
3. The plaintiff in his Statement of Claim has pleaded that since the death of his father he orally granted to the defendant a licence or permission to reside at the flat on condition that she would collect and account to the plaintiff the rents and profits of the other parts of the flat from the tenants. That the defendant has failed to account to him the said rents and profits and has failed to pay to him the amount she had collected from 1st January 1968 to 1st July 1969, amounting in all to $5890 which sum he claims together with an injunction to restrain the defendant from using the flat, and he also claims damages.
4. The defendant in her Statement of Defence denied that she resided in the flat by way of licence but she admitted that she collected the rents and profits of the other parts of the flat from the tenants and that she did account for the same to the plaintiff. The defendant annexed to her Statement of Defence an account of the monies received and paid by her to the plaintiff in connection with the flat, which accounts show a credit balance of $254.90 in favour of the plaintiff.
5. The defendant also pleaded that her late father had bought the flat for the joint benefit of the plaintiff and the defendant and that during his life time he had orally entrusted the plaintiff with the duty of dealing with the flat in accordance with her father's wishes after his death; that her father stated that after his death the flat would belong to both the plaintiff and the defendant in equal shares and expressly or impliedly expressed his desire that after his death the flat should be transferred by the administrator of his estate in equal shares to the defendant and the plaintiff and that the plaintiff should for this purpose regard himself as a trustee of the defendant's share in the premises when he became administrator. The defendant pleaded that the plaintiff became a trustee of the flat on the death of her late father under an implied of express trust by the father during his life time to arise on his death. That it was because the defendant owns a half share in the flat and that she believed that such half share would eventually be transferred to her that she resides in the flat. Alternatively the defendant pleaded that she occupied the flat by virtue of a service tenancy originally granted to her by her late father, and either expressly or impliedly acknowledged and continued by the plaintiff as administrator of her late father.
6. The defendant also counterclaimed that the Court declare that the trust referred to exists and that she is entitled to a half share in the flat and further that the flat be transferred in accordance with the terms of the trust to the plaintiff and defendant in equal shares. Alternatively that the Court find that the defendant is in occupation of the flat by virtue of a service tenancy which has not been properly terminated by the plaintiff, and that she is therefore entitled to possession of the flat until such tenancy is terminated. The defendant also claimed damages.