Read the full judgment text of CACV 000215/1998 on BabelCite. This Court of Appeal judgment was delivered on 31 March 1999 before Mortimer VP, Godfrey JA, Rogers JA.
Property law – sale of land – vendor's duty to show good title – chain of title revealing conveyance by two administrators to one of themselves for no apparent consideration – self-dealing rule – constructive notice – constructive trust – limitation – whether claims barred. Conveyancing – constructive notice – standard of inquiry required of purchaser – what reasonable conveyancing solicitor would have discovered. Probate and Administration Ordinance (Cap 10) s.55 and s.68(8) – self-dealing rule prohibits disposition by trustees to one of themselves unless sanctioned by court or concurred in by all persons beneficially interested of full age and free from disability – 1974 conveyance by intestate's husband and adult son (as administrators) to the husband for no apparent consideration, property being sole asset of estate and husband not entitled to whole interest on intestacy. First issue – whether anything in 1974 conveyance put subsequent purchaser on inquiry as to validity of appropriation: held, yes – conveyance disclosed grant of administration to husband and adult son, sole-asset status, no consideration, no purpose, and husband's interest could not exclude minor children; decision of first instance judge that this was merely 'a family matter' wrong. Second issue – whether section 68(8) of PAO deemed appropriation to be properly made in favour of subsequent purchasers: held, no – words 'in the course of administration and for the purposes thereof' could not be construed as purported exercise of statutory power of appropriation absent any recital of appropriation. Third issue – whether claims of intestate's children (other than adult son) barred by Limitation Ordinance: held, no (at least arguably) – subsequent purchasers arguably constructive trustees with constructive notice; standard of inquiry is that of a reasonable and prudent conveyancing solicitor; section 20(1)(b) of Limitation Ordinance may apply so that no limitation period bars the beneficiary's claim. Outcome: appeal allowed with order nisi that costs of appeal be paid by the defendant; judgment of Sears J. set aside.
Legal issues: Whether the 1974 conveyance puts a subsequent purchaser on inquiry as to validity of appropriation · Whether section 68(8) of the PAO protects subsequent purchasers · Whether claims by the intestate's children are barred by limitation
Outcome: Appeal allowed; judgment of Sears J. set aside.
Cited by 2 cases