THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF YIP YAM YU ALEX v. YIP YAM YU ALEX AND ANOTHER

THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF YIP YAM YU ALEX v. YIP YAM YU ALEX AND ANOTHER

The court found the Mother provided the overwhelming bulk of the purchase price and redeemed the mortgages with her funds; the evidence established a resulting trust (and alternative constructive trust) in the Mother's favour, the presumption of advancement did not apply or was rebutted, and therefore the Son’s registered half did not form part of the bankrupt estate; trustees' summons dismissed.

Citation
[2019] HKCFI 75
Parties
Applicants: THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF YIP YAM YU ALEX; 1st Respondent: YIP YAM YU ALEX; 2nd Respondent: KO SUK CHING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 January 2019
Case Number
HCB3926/2015
Procedural Posture
Bankruptcy Proceedings With Partition Application / Decision of the Court of First Instance
Outcome
Trustees' summons dismissed; Mother found to be beneficial owner of the interest registered in the Son's name; Son's half not vested in the bankrupt estate; costs directions made.
Legal Topics
Resulting Trust, Presumption of Advancement, Common Intention Constructive Trust, Partition and Sale, Severance of Joint Tenancy, Mortgage Security, Beneficial Ownership
Source Language
EN
Bankruptcy Trusts Property Equity Civil Procedure Resulting Trust Presumption of Advancement Common Intention Constructive Trust +4 more

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Parties

THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF YIP YAM YU ALEX

Applicants

YIP YAM YU ALEX

1st Respondent

KO SUK CHING

2nd Respondent

Procedural Posture

Bankruptcy Proceedings With Partition Application / Decision of the Court of First Instance

Legal Issues

  1. 1 Who provided the purchase money for the Property?
  2. 2 Whether the Mother intended to make a gift of 50% to the Son (presumption of advancement)
  3. 3 Whether the Son's registered half-share forms part of the bankrupt estate

Ratio Decidendi

The court found the Mother provided the overwhelming bulk of the purchase price and redeemed the mortgages with her funds; the evidence established a resulting trust (and alternative constructive trust) in the Mother's favour, the presumption of advancement did not apply or was rebutted, and therefore the Son’s registered half did not form part of the bankrupt estate; trustees' summons dismissed.

Court Disposition

Trustees' summons dismissed; Mother found to be beneficial owner of the interest registered in the Son's name; Son's half not vested in the bankrupt estate; costs directions made.

Orders

  • Dismissal of the Trustees' summons
  • Finding that the Mother is beneficial owner of the interest registered in the Son's name (resulting/constructive trust in Mother's favour)