eceiver refusing to be made a party to the Confirmatory Assent.
Whether Assent in Writing is Necessary to Vest Legal Title in the Property
Mr Leung, counsel for the Plaintiff, finds support in the proposition that, despite the provisions of section 66(3) of the Probate and Administration Ordinance, a written assent to effect the passing of legal estate was not strictly necessary in the aforesaid passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, citing Re Hodge, Hodge v Griffiths [1940] 1 Ch 260 and Re Cockburns Will Trusts [1957] Ch 438. The learned authors were also conscious of the fact that this view had been held incorrect in Re Kings Will Trust, Assheton v Boyne [1964] Ch 542, a decision where the relevant authorities were not all cited. The learned authors also have this to say about the future approach on this issue:-
In future a representative will never safely be able to terminate his character of representative in his own favour otherwise than by a written assent and if the chain of representation has been broken without assent being made, it will be necessary, although the administration is at an end, to obtain a grant of administration of unadministered assets (de bonis non) to put the title in order.
Section 66(3) of the Probate and Administration Ordinance provides that:-
An assent to the vesting of a legal estate shall be in writing, signed by the personal representative, and shall name the person in whose favour it is given, and shall operate to vest in that person the legal estate to which it relates; and an assent not in writing or not in favour of a named person shall not be effectual to pass the legal estate.
The above provision was considered in Kleinwort Benson (Hong Kong) Trustees v Wong Foon Hang & Ors. In that case, there was the issue of whether the plaintiff had completed the administration of the testators estate and become a trustee holding the estate for the beneficiaries under the terms of a will trust. Rhind J held that as a matter of law, the plaintiff could not have become a trustee of a piece of land of the testators estate under a will trust because it had never made a written assent to itself in respect of that land.
In coming to the conclusion that a written assent was required in the situation, Rhind J pointed out that the proposition that a written assent is not necessary to bring about the situation of someone who has held land as a personal representative being able to show good legal title to it as trustee was rejected in Re Kings Will Trusts. An opportunity arose for challenging Re Kings Will Trusts in the English Court of Appeal in Re Edwards Will Trusts [1964] Ch 542. It was not taken up and the Court of Appeal proceeded on the assumption that Re Kings Will Trusts had been correctly decided. The reasoning of Pennycuick J in Re Kings Will Trusts that there had to be a divesting of title from the personal representative in that capacity and a revesting in the same person but in the different capacity of trustee cannot be faulted. He therefore came to the conclusion that on both a literal and purposive interpretation of section 66(3) of the Probate and Administration Ordinance, a written assent is required.
In light of the above, Kleinwort Benson (Hong Kong) Trustees v Wong Foon Hang & Ors is clear authority that a written assent is required to effect the passing of legal estate even if the personal representative and the beneficiary are the same person. I am compelled to follow this decision. Accordingly, for issue (1), I hold that a written assent was required to vest the legal title of the Property in Ms Cheung.
It is common ground that the 1996 Assent was void, and it failed to vest the legal title in Ms Cheung. It would follow that the 1999 Mortgage was invalid, and that Hang Seng Bank was not entitled to convey the Property to the Plaintiff by the 2006 ASP and 2006 Assignment, subject to the effect of the Confirmatory Assent and Confirmatory Mortgage.
It is common ground that by virtue of the doctrine of estoppel by deed, if the Confirmatory Assent was a fresh assent, the transfers of the Property from Mr Kwok to Ms Cheung, and subsequently from Hang Seng Bank to the Plaintiff would be valid, subject to the Official Receiver being made a party thereto. There remain to be decided issues (2) and (3).
Whether the Confirmatory Assent is a Fresh Assent
It is the Plaintiffs case that the Confirmatory Assent was a fresh assent and was not intended to retrospectively give effect to the 1996 Assent.
Ms Ng, for the Defendants, argued that the Confirmatory Assent could not be so construed. She relied on point 9 of the recital of the Confirmatory Assent, which stated as follows:-
In order to remove the doubt on the validity of the Assent (note: the 1996 Assent) and to rectify the irregularity as mentioned hereinabove, the parties hereto have agreed to execute this Deed in the manner hereinafter appearing.
Ms Ng also placed reliance on point 11 of the recital of the Confirmatory Mortgage and Assignment, which stated that:-
In order to remove the doubt as to the validity of the Assent (note: the 1996 Assent), the Mortgagor applied to the Housing Authority to rectify the Assent and by a letter dated 14th September 2009, the Housing Authority confirmed that it had no objection to a Confirmatory Assent being executed. The Confirmatory Assent was executed on and dated 18th December 2009 and registered in the Land Registry by Memorial No. 10011102790053.
It was submitted on behalf of the Defendants that against the above recitals, the Confirmatory Assent should be interpreted as an instrument that was intended to rectify the 1996 Assent. I find myself unable to agree to such an interpretation.
In my view the clear words in the operative part of the Confirmatory Assent was not displaced by any reasonable interpretation of the part of the recital set out above.
It is clear from the operative part of the Confirmatory Assent that it is a fresh assent. Clause (1), an operative clause, provides that:-
In consideration of the premises, the Administratrix as personal representative and in the course of administration of the estate of the Deceased HEREBY ASSENTS to the vesting in and CONFIRMS and ASSIGNS unto the Beneficiary the Property TO HOLD the same unto the Beneficiary
In other words, the parties intended the Confirmatory Assent to vest the legal title of the Property in Ms Cheung as of the date of the instrument. It was therefore intended to be a fresh assent, although the intention of the parties in the previous assent, namely to assign the Property to Ms Cheung, was confirmed.
Further, the background giving rise to the Confirmatory Assent must be taken into account to ascertain the intention of the parties.
Having noted that no premium was paid by Ms Cheung by the time the 1996 Assent was executed, TP on behalf of the Plaintiff wrote a letter dated 30 January 2007 to the Housing Authority to seek its views on the validity of the 1996 Assent. TP wrote a further letter dated 18 April 2007 to the Housing Authority to seek its consent in respect of the 1996 Assent.
The Housing Authority responded to TP by letter dated 18May2007, in which it stated that as a general policy, it would not grant retrospective consent in respect of an executed assent. Nevertheless, for the sake of rectification, fresh application may be submitted for its consideration for granting a fresh consent for the execution of a fresh assent. The rectification referred to in the context of the letter had to mean rectification of the defect in title arising from an invalid assent.
Having reviewed the correspondence between TP and the Housing Authority between 24 June 2009 to 20 October 2009, as recited above, and the Confirmatory Assent executed thereafter, I am satisfied that the instrument was in fact a fresh Assent as was required to pass legal title, although not retrospectively. This was despite the title of the instrument being a Deed of Confirmatory Assent. The purpose of the instrument was to rectify the defect in title arising from the 1996 Assent, not the 1996 Assent itself.
In the circumstances, I hold that the Confirmatory Assent was a fresh assent and was not intended to rectify the 1996 Assent.
Whether the Plaintiff has a Good Title despite the Official Receiver Refusing to be a Party to the Confirmatory Assent
Ms Ng argued that since the right of Ms Cheung to require MrKwoks estate to be duly administered, being a chose in action, was vested in the Official Receiver, there was some residual right remaining with the Official Receiver despite Ms Cheung having been discharged from the bankruptcy order. It was submitted that there might be potential third party claims against the Official Receiver. Unless the Official Receiver were made a party to the Confirmatory Assent, the title is still at risk.
In this regard, I agree with the submission of Mr Leung for the Plaintiff that if the Confirmatory Assent is valid, the administration of MrKwoks estate is complete upon the vesting of the legal and beneficiary title of the Property in Hang Seng Bank, and there would be nothing left in the estate for the Official Receiver to administer. The chose in action therefore vanishes.
Further, there is no dispute that Ms Cheung is the sole administratrix and beneficiary of Mr Kwoks estate. Any potential claim from any third party is far-fetched to say the least.
I therefore hold that it is not necessary for the Official Receiver to be a party to the Confirmatory Assent and the Confirmatory Mortgage and Assignment.
Conclusion
I rule issue (1) against the Plaintiff, and issues (2) and (3) in favour of the Plaintiff. Given the parties agreement as to the effect of a valid fresh assent, I hold that by virtue of the doctrine of estoppel by deed, upon execution of the Confirmatory Assent, Ms Cheung would be estopped from denying that she had the legal title to the Property at the time she executed the 1999 Mortgage. Likewise, by purporting to grant the legal estate of the Property to the Plaintiff, Hang Seng Bank was estopped from denying that it had validly granted legal estate of the Property to the Plaintiff once the Confirmatory Assent was executed.
The parties have indicated to me that they have agreed that there be no order as to costs whichever way my decision goes.
I accordingly grant the following orders:-
A declaration that the requisitions of the Defendants in respect of the title to the Property comprised in the Agreement for Sale and Purchase dated 2 September 2010 raised in the letter by the Defendants Solicitors dated 16 September 2010 have been satisfactorily answered;
A declaration that a good title to the Property has been shown in accordance with the Agreement for Sale and Purchase; and
No order as to cost.
It remains for me to thank both counsel for their helpful research and submissions.
(Winnie Tam SC)
Deputy High Court Judge
MrDesmond Leung, instructed by Messrs Tam & Partners, for the Plaintiff
Ms Queenie Ng, instructed by Messrs Au, Thong & Tsang, for the Defendants
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