WONG KWOK KI STEPHEN as the joint and several trustee of the property of WONG KIN KEUNG AND ANOTHER v. WONG KIN KEUNG AND ANOTHER

WONG KWOK KI STEPHEN as the joint and several trustee of the property of WONG KIN KEUNG AND ANOTHER v. WONG KIN KEUNG AND ANOTHER

The plaintiffs, as trustees whose legal interest is vested in them, have the basic right to seek sale under the Partition Ordinance and the defendants' complaints about administration are irrelevant to the statutory test for sale; such complaints are properly pursued under the Bankruptcy Ordinance supervisory jurisdiction, therefore the underlined parts of the defence and counterclaim are irrelevant and must be struck out.

Citation
[2018] HKCFI 178
Parties
1st Plaintiff (joint and Several Trustee of the Property of WONG KIN Keung): WONG KWOK KI STEPHEN; 2nd Plaintiff (joint and Several Trustee of the Property of WONG KIN Keung): KWAN MEI SEE MACY; 1st Defendant: WONG KIN KEUNG; 2nd Defendant: CHOW CHUI WA CLAUDIA
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 January 2018
Case Number
HCA594/2017
Procedural Posture
Civil Action for Partition and Sale (partition Ordinance) Involving Trustees of Bankrupt's Property / Interlocutory Application to Strike Out Parts of Defence and Counterclaim
Outcome
Master ordered that the underlined paragraphs and words of the Defence and Counterclaim be struck out as irrelevant; costs reserved for submission.
Legal Topics
Partition Ordinance Section 2(c), Order for Sale, Irrelevant Pleadings/strike Out, Supervisory Jurisdiction of Bankruptcy Trustees (ss83, 97), Administration of Bankrupt's Estate
Source Language
EN
Property Law Bankruptcy Law Trusts and Trustees Civil Procedure Partition Ordinance Section 2(c) Order for Sale Irrelevant Pleadings/strike Out Supervisory Jurisdiction of Bankruptcy Trustees (ss83,97) +1 more

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Parties

WONG KWOK KI STEPHEN

1st Plaintiff (joint and Several Trustee of the Property of WONG KIN Keung)

KWAN MEI SEE MACY

2nd Plaintiff (joint and Several Trustee of the Property of WONG KIN Keung)

WONG KIN KEUNG

1st Defendant

CHOW CHUI WA CLAUDIA

2nd Defendant

Procedural Posture

Civil Action for Partition and Sale (partition Ordinance) Involving Trustees of Bankrupt's Property / Interlocutory Application to Strike Out Parts of Defence and Counterclaim

Legal Issues

  1. 1 Whether parts of the defence and counterclaim are irrelevant and liable to be struck out
  2. 2 Whether the court should refuse an order for sale under section 2(c) of the Partition Ordinance on grounds of benefit or very great hardship
  3. 3 Whether complaints about trustees' administration are relevant to a partition/sale application and whether they must be pursued by bankruptcy supervisory procedures

Ratio Decidendi

The plaintiffs, as trustees whose legal interest is vested in them, have the basic right to seek sale under the Partition Ordinance and the defendants' complaints about administration are irrelevant to the statutory test for sale; such complaints are properly pursued under the Bankruptcy Ordinance supervisory jurisdiction, therefore the underlined parts of the defence and counterclaim are irrelevant and must be struck out.

Court Disposition

Master ordered that the underlined paragraphs and words of the Defence and Counterclaim be struck out as irrelevant; costs reserved for submission.

Orders

  • Paragraphs and words of the Defence and Counterclaim as underlined in the copy annexed to the plaintiffs' summons dated 21 September 2017 are struck out
  • Hearing to be listed for submissions on costs