RE CHOY YUK CHUN

RE CHOY YUK CHUN

Balancing creditors' interests and the co-owner's personal and family circumstances, the court found no exceptional circumstances nor very great hardship to preclude sale; accordingly an order nisi for sale was granted under the Partition Ordinance and Bankruptcy Ordinance, with net proceeds to be divided 50/50 and the bankruptcy estate to be satisfied from the bankrupt's share; trustees' application succeeded and their costs were to be paid from the estate (assessed HK$100,000).

Citation
RE CHOY YUK CHUN
Parties
Applicants (trustees): Joint and Several Trustees of the property of the Bankrupt; Bankrupt: Choy Yuk Chun; Respondent (co Owner): Lai Yun Sum; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 June 2016
Case Number
HCB5203/2008
Procedural Posture
Bankruptcy; Partition (order for Sale) / Application for Order for Sale Heard in Chambers; Order Nisi Granted
Outcome
Order nisi granted for sale of the property; net sale proceeds to be divided 50/50 between the respondent and the bankruptcy estate (subject to deductions and payment to creditors); trustees' application granted.
Legal Topics
Order for Sale, Severance of Joint Tenancy, Creditor Recovery, Hardship as a Defence to Sale, Beneficial Interests in Co Owned Property
Source Language
ET
Bankruptcy Property Law Partition Trusts Family/home Occupation Equity Order for Sale Severance of Joint Tenancy +3 more

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Parties

Joint and Several Trustees of the property of the Bankrupt

Applicants (trustees)

Choy Yuk Chun

Bankrupt

Lai Yun Sum

Respondent (co Owner)

Official Receiver

Official Receiver

Procedural Posture

Bankruptcy; Partition (order for Sale) / Application for Order for Sale Heard in Chambers; Order Nisi Granted

Legal Issues

  1. 1 Whether trustee in bankruptcy can obtain an order for sale of co-owned matrimonial/homeownership property under s60 BO and s6 PO
  2. 2 Whether joint tenancy was severed and the effect on beneficial interests
  3. 3 Whether the opposing co-owner (spouse) discharged the burden of proving exceptional circumstances or very great hardship to resist sale

Ratio Decidendi

Balancing creditors' interests and the co-owner's personal and family circumstances, the court found no exceptional circumstances nor very great hardship to preclude sale; accordingly an order nisi for sale was granted under the Partition Ordinance and Bankruptcy Ordinance, with net proceeds to be divided 50/50 and the bankruptcy estate to be satisfied from the bankrupt's share; trustees' application succeeded and their costs were to be paid from the estate (assessed HK$100,000).

Court Disposition

Order nisi granted for sale of the property; net sale proceeds to be divided 50/50 between the respondent and the bankruptcy estate (subject to deductions and payment to creditors); trustees' application granted.

Orders

  • Order nisi granted for sale of Flat 4, 9/F, Block D (Yiu Lun House), Siu Lun Court, No.3 Siu Hing Lane, Tuen Mun, New Territories in terms of paragraphs 1 to 7 of the trustees' revised draft (with textual amendment to paragraph 7)
  • Paragraph 8 of the revised draft deleted and replaced: net sale proceeds to be divided between the applicants and the respondent 50% of which shall as soon as practicable be paid to the respondent and the remaining balance shall form part of the bankruptcy estate