THE TRUSTEE OF THE ESTATE OF CHOW YUET LAM, DECEASED (A BANKRUPT) v. CHAU KAM FUNG

HCB 513/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY NO. 513 OF 1990

____________

RE: CHOW YUET LAM, TRADING AS WAH MEI WEAVING FACTORY

____________

____________

______________

J U D G M E N T

______________

1. In this matter, a petition was presented by the Director of Legal Aid on behalf of the petitioning creditors for wages owing. The petition was presented on 27th July 1990 and a Receiving Order made on 26th September that year.

2. On 7th November 1990, the bankrupt was adjudicated as such. Unfortunately in 1994, he suffered a stroke and thereafter proved unable to assist the Official Receiver. On 30th January 1998, the bankrupt died. On 10th October, Master Bennett gave leave to the Official Receiver and trustee to bring proceedings for the sale of the bankrupt's parking space. I understand that this is the tail end of various proceedings and actions taken by the Official Receiver to get in and realise the bankrupt's assets.

3. The property in question appears to have been conveyed to the bankrupt and to a Madam Chau Kam Fung as joint tenants including the car parking space in question. Madam Chau cannot be found. Substituted service was ordered and she has not appeared today despite the advertisement of these proceedings.

4. The questions for me are whether I should make relevant declarations and orders to enable this remaining part of the bankrupt's estate to be realised. I am satisfied that as a matter of law upon the bankrupt being adjudicated bankrupt, a severance took place whereby a joint tenancy was converted into a tenancy in common by operation of law: In re Dennis [1993] Ch 72 at 74. In the absence of evidence to contrary, I would assume that the interest in the car parking space was to be held in equal shares between Madam Chow and the Bankrupt. It follows that after severance, his half share in the car parking space vested in the Official Receiver as trustee. The Official Receiver now desires to sell the parking space so that half of the proceeds can be got in for the Bankrupt's estate.

5. I am satisfied that this is a proper case for me to make the declarations sought and to make all necessary orders to achieve the final resolution of this matter.

6. I have asked Mr Fitzpatrick, who appears for the Official Receiver, to draw up and submit to the Court a draft minute containing appropriate orders to reflect this judgment. I also have it in mind that the balance of the proceeds may be ordered to be paid into court under section 62 of the Trustee Ordinance with liberty to any person claiming that sum to apply to the court and otherwise to remain in court until further order, with the Registrar of the High Court and the Official Receiver having liberty to apply.