SHUI YEE LTD. v. ROCKWIN ENTERPRISES LTD. AND OTHERS

SHUI YEE LTD. v. ROCKWIN ENTERPRISES LTD. AND OTHERS

Where there is a genuine dispute about the validity of an assignment that could render the disposition avoidable under s.60 CPO and thereby affect beneficial ownership of property subject to a charging order nisi, the court must not summarily discharge the charging order nisi but should adjourn the application to make it absolute pending determination of the s.60 challenge; accordingly the Master's discharge was set aside and the application adjourned.

Citation
SHUI YEE LTD. v. ROCKWIN ENTERPRISES LTD. AND OTHERS
Parties
Plaintiff (judgment Creditor): Shui Yee Ltd; 1st Defendant (judgment Debtor): Rockwin Enterprises Ltd; 2nd Defendant (judgment Debtor): Hui Chi Wai; 3rd Defendant (judgment Debtor): Straight Forward Development Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 December 2000
Case Number
HCA527/1995
Procedural Posture
Appeal Against Master's Order Discharging Charging Order Nisi / Decision on Appeal in Court of First Instance
Outcome
Appeal allowed; order of the Master discharging the Charging Order Nisi set aside; application to make Charging Order Nisi absolute adjourned pending determination of plaintiff's s.60 Conveyancing and Property Ordinance application.
Legal Topics
Charging Order Nisi/absolute, Section 60 Conveyancing and Property Ordinance (fraudulent Dispositions), Validity of Assignment, Adjournment Pending Determination, Costs
Source Language
EN
Property Law Equity Civil Procedure Creditors' Remedies Charging Order Nisi/absolute Section 60 Conveyancing and Property Ordinance (fraudulent Dispositions) Validity of Assignment Adjournment Pending Determination +1 more

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Parties

Shui Yee Ltd

Plaintiff (judgment Creditor)

Rockwin Enterprises Ltd

1st Defendant (judgment Debtor)

Hui Chi Wai

2nd Defendant (judgment Debtor)

Straight Forward Development Ltd

3rd Defendant (judgment Debtor)

Procedural Posture

Appeal Against Master's Order Discharging Charging Order Nisi / Decision on Appeal in Court of First Instance

Legal Issues

  1. 1 Whether the Charging Order Nisi should be discharged or made absolute pending determination of the s.60 application
  2. 2 Whether the assignment of 11 undivided shares to the director was genuine or a fraudulent disposition voidable under s.60 CPO
  3. 3 Whether the court should adjourn application to make charging order absolute and order a trial on beneficial ownership

Ratio Decidendi

Where there is a genuine dispute about the validity of an assignment that could render the disposition avoidable under s.60 CPO and thereby affect beneficial ownership of property subject to a charging order nisi, the court must not summarily discharge the charging order nisi but should adjourn the application to make it absolute pending determination of the s.60 challenge; accordingly the Master's discharge was set aside and the application adjourned.

Court Disposition

Appeal allowed; order of the Master discharging the Charging Order Nisi set aside; application to make Charging Order Nisi absolute adjourned pending determination of plaintiff's s.60 Conveyancing and Property Ordinance application.

Orders

  • Order of Master dated 13 November 2000 discharging the Charging Order Nisi set aside
  • Application to make the Charging Order Nisi absolute adjourned pending determination of the plaintiff's s.60 application under the Conveyancing and Property Ordinance Cap.219