Weekly review: 4th – 8th June 2012

Chinese customary law

Where there is doubt as to the legal status of a wife under Chinese customary law and this is relevant for probate / succession purposes then solicitors applying for probate / letters of administration owe a duty to take proper instructions and obtain expert evidence if need be so that the wife’s legal status (and that of any other wives) can be correctly identified. It is not enough to transmit the layman’s view of the matter (Estate of Tse Chu).

Landlord and tenant / distress

Section 87 of the Landlord and Tenant (Consolidation) Ordinance gives bailiffs executing a warrant of distress the right to seize goods in the apparent possession of the tenant. If a third party claims to be the owner, they must establish their ownership on the balance of probabilities but still may not be able to recover the goods. The owner may then bring proceedings against the tenant in respect of his loss (Chung Ho Co Ltd v Net Power Holdings Ltd.

Proprietary estoppel

A licence to alter property is clearly not an assurance or representation for proprietary estoppel purposes (East Surplus Investments Ltd  v Tincho Industrial Co Ltd).

Resulting / common intention constructive trusts

Even if some of the evidence that could have been used to establish a resulting and / or common intention constructive trust cannot be relied on because it is part of a scheme that is potentially unlawful or contrary to public policy, it is still possible to rely on other factors (independent of the scheme) to establish the trust (such as contributions to purchase price leading to a presumed resulting trust or an inferred intention that there should be a common intention constructive trust )(Lau Kwai Kiu v Bian Xintian).

Trust: property disposed of in breach of trust

Where property is disposed of in breach of trust, the beneficiary can seek equity’s help to recover it until it comes into the hands of a bona fide purchaser for value without notice of the trust (Chan Ming Hung v Sum Choi Wan Chau).


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