RE CHANG SZE LING

RE CHANG SZE LING

The court found that the property was purchased and held as legal and beneficial joint tenancy prior to bankruptcy; bankruptcy severed the joint tenancy so the trustees and Mr Cheung are tenants in common in equal shares; Mr Cheung did not demonstrate that very great hardship would result from a sale; accordingly an order for sale under Partition Ordinance s6 was granted with extended vacant possession period of 90 days and trustees' costs to be paid from the bankruptcy estate.

Citation
RE CHANG SZE LING
Parties
Applicant/trustees in Bankruptcy: Joint and Several Trustees of the property of the Bankrupt; Respondent/co Owner: Cheung Wan; Bankrupt/deceased: Chang Sze Ling (deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 March 2016
Case Number
HCB4104/2004
Procedural Posture
Bankruptcy Proceedings With Application for Order for Sale Under Partition Ordinance / Application Heard; Decision Delivered
Outcome
Order for sale granted
Legal Topics
Order for Sale Under Partition Ordinance S6, Severance of Joint Tenancy by Bankruptcy, Beneficial Ownership Presumptions (resulting Trust Vs Joint Tenancy Vs Advancement), Hardship Exception to Sale
Source Language
EN
Bankruptcy Law Property Law Trusts Partition/co Ownership Civil Procedure Order for Sale Under Partition Ordinance S6 Severance of Joint Tenancy by Bankruptcy Beneficial Ownership Presumptions (resulting Trust Vs Joint Tenancy Vs Advancement) +1 more

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Parties

Joint and Several Trustees of the property of the Bankrupt

Applicant/trustees in Bankruptcy

Cheung Wan

Respondent/co Owner

Chang Sze Ling (deceased)

Bankrupt/deceased

Procedural Posture

Bankruptcy Proceedings With Application for Order for Sale Under Partition Ordinance / Application Heard; Decision Delivered

Legal Issues

  1. 1 Whether the respondent was sole beneficial owner despite joint legal title
  2. 2 Whether the trustees are entitled to an order for sale under Partition Ordinance s6 despite respondent's hardship claim
  3. 3 Effect of bankruptcy on joint tenancy and vesting of beneficial interest in trustees

Ratio Decidendi

The court found that the property was purchased and held as legal and beneficial joint tenancy prior to bankruptcy; bankruptcy severed the joint tenancy so the trustees and Mr Cheung are tenants in common in equal shares; Mr Cheung did not demonstrate that very great hardship would result from a sale; accordingly an order for sale under Partition Ordinance s6 was granted with extended vacant possession period of 90 days and trustees' costs to be paid from the bankruptcy estate.

Court Disposition

Order for sale granted

Orders

  • Order for sale of the property in terms of paragraphs 1 to 8 of the trustees' draft order (as adopted by the court) with the period for delivery up vacant possession extended to 90 days
  • Liberty to apply