RE LO YAU SHING

RE LO YAU SHING

Balancing the objective facts, including the respondent co-owner's advanced age, serious medical conditions, dependence on the property as primary residence and lack of means to obtain alternative accommodation, the court found that sale would cause very great hardship and that the circumstances were exceptional; accordingly the court exercised its discretion to refuse the trustees' application for an order for sale.

Citation
[2018] HKCFI 1574
Parties
Applicant/trustee: Joint and Several Trustees of the property of the Bankrupt; Bankrupt: Lo Yau Shing; Co Owner/respondent: Lo Kwong Wa
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 July 2018
Case Number
HCB4968/2007
Procedural Posture
Bankruptcy Application for Order for Sale Under the Bankruptcy Ordinance and Partition Ordinance / Decision on Application (judgment)
Outcome
Trustees' application for an order for sale dismissed
Legal Topics
Order for Sale, Severance of Joint Tenancy, Trustee Powers, Exceptional Circumstances/very Great Hardship, Balancing Creditors' and Coowner's Interests, Public Housing/subsistence Issues
Source Language
EN
Bankruptcy Property Law Equity and Trusts Civil Procedure Order for Sale Severance of Joint Tenancy Trustee Powers Exceptional Circumstances/very Great Hardship +2 more

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Parties

Joint and Several Trustees of the property of the Bankrupt

Applicant/trustee

Lo Yau Shing

Bankrupt

Lo Kwong Wa

Co Owner/respondent

Procedural Posture

Bankruptcy Application for Order for Sale Under the Bankruptcy Ordinance and Partition Ordinance / Decision on Application (judgment)

Legal Issues

  1. 1 Whether the court should order sale of a co-owned property vested in the trustees following bankruptcy under s60 BO and s6 PO
  2. 2 Whether the respondent co-owner has shown very great hardship or exceptional circumstances sufficient to resist a sale order
  3. 3 How to balance the interests of creditors (via the trustees) against the vulnerable co-owner

Ratio Decidendi

Balancing the objective facts, including the respondent co-owner's advanced age, serious medical conditions, dependence on the property as primary residence and lack of means to obtain alternative accommodation, the court found that sale would cause very great hardship and that the circumstances were exceptional; accordingly the court exercised its discretion to refuse the trustees' application for an order for sale.

Court Disposition

Trustees' application for an order for sale dismissed

Orders

  • Application by the Joint and Several Trustees for an order for sale dismissed
  • Order nisi that each party shall bear its own costs