OFFICIAL RECEIVER, the Trustee of the Property of LEUNG MAN YUEN v. LEUNG MAN YUEN AND ANOTHER

OFFICIAL RECEIVER, the Trustee of the Property of LEUNG MAN YUEN v. LEUNG MAN YUEN AND ANOTHER

The trustee, having vested title to the bankrupt's undivided share, is a co-owner with Madam Lai; the evidence establishes no rebuttal of the presumption of equal beneficial ownership of the jointly purchased matrimonial home and no binding sale contract existed with the trustee; delay by the trustee, unexplained, did not produce sufficient prejudice or exceptional circumstances to refuse sale; therefore declaration of tenancy in common in equal shares is granted and an order for sale under the Partition Ordinance is made with vacant possession and ancillary directions.

Citation
OFFICIAL RECEIVER, the Trustee of the Property of LEUNG MAN YUEN v. LEUNG MAN YUEN AND ANOTHER
Parties
Applicant / Trustee: Official Receiver (Trustee of the Property of Leung Man Yuen); 1st Respondent (discharged Bankrupt): Leung Man Yuen; 2nd Respondent (co Owner / Occupier): Lai Fung Yee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 September 2016
Case Number
HCB582/1996
Procedural Posture
Bankruptcy Proceedings With Application Under the Partition Ordinance for Declaration and Sale of Co Owned Land / Decision (judgment Granting Declaration and Order for Sale)
Outcome
Declaration granted that the trustee and Madam Lai hold the Property as tenants in common in equal shares; order for sale under the Partition Ordinance granted
Legal Topics
Partition Ordinance Sale, Beneficial Ownership of Matrimonial Home, Effect of Bankruptcy and Discharge on Vested Property, Limitation / Lapse of Time, Contract Formation for Sale of Trustee's Interest
Source Language
EN
Bankruptcy Law Property Law Equity and Trusts Family Law Partition Ordinance Sale Beneficial Ownership of Matrimonial Home Effect of Bankruptcy and Discharge on Vested Property Limitation / Lapse of Time +1 more

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Parties

Official Receiver (Trustee of the Property of Leung Man Yuen)

Applicant / Trustee

Leung Man Yuen

1st Respondent (discharged Bankrupt)

Lai Fung Yee

2nd Respondent (co Owner / Occupier)

Procedural Posture

Bankruptcy Proceedings With Application Under the Partition Ordinance for Declaration and Sale of Co Owned Land / Decision (judgment Granting Declaration and Order for Sale)

Legal Issues

  1. 1 Whether trustee and 2nd respondent hold the Property as tenants in common in equal shares
  2. 2 Whether the court should order sale of the Property under the Partition Ordinance
  3. 3 Whether any limitation or lapse of time bars or should prevent the trustee's claim for sale

Ratio Decidendi

The trustee, having vested title to the bankrupt's undivided share, is a co-owner with Madam Lai; the evidence establishes no rebuttal of the presumption of equal beneficial ownership of the jointly purchased matrimonial home and no binding sale contract existed with the trustee; delay by the trustee, unexplained, did not produce sufficient prejudice or exceptional circumstances to refuse sale; therefore declaration of tenancy in common in equal shares is granted and an order for sale under the Partition Ordinance is made with vacant possession and ancillary directions.

Court Disposition

Declaration granted that the trustee and Madam Lai hold the Property as tenants in common in equal shares; order for sale under the Partition Ordinance granted

Orders

  • Declaration that the trustee and Madam Lai hold Flat 7, 3/F, Block A, Siu Lun Court as tenants in common in equal shares
  • Order that the Property be sold pursuant to the Partition Ordinance (Cap 352) with proceeds dealt with accordingly