Lo Fook-cheung v. Law Yun-yau

Case No.HCMP 371/1981

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000371/1981

Sale of land-Title-Death intestate before 7th October, 1971 which the date the Probate And Administration Ordinance, Cap.10 came into effect-Sale of immovables by sole administrator after 7th October, 1971-Whether sole administrator entitled to sell and give a good discharge for the purchase money-s.62(1) of Cap. 10 and s.15 of the Trustee Ordinance, Cap. 29.

IN THE HIGH COURT OF JUSTICE
	MISCELLANEOUS PROCEEDINGS NO. 371 OF 1981

	IN THE MATTER OF Subsection 4 of the Remaining Portion of Section A of Inland Lot No. 41
	and
	In the matter of an Assignment dated the 19th day of September, 1975 and registered in the said Land Office by Memorial No. 1207420
	and
	In the matter of an application for equitable remedies

BETWEEN
	LO Fook-cheung	Plaintiff
	and
	LAW Yun-yau	Defendant

Coram: Rhind, J. in Court

Date of Judgment: 10th June, 1981.

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JUDGMENT

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1. By an agreement in writing dated the 4th September, 1980, the Plaintiff agreed to sell to the Defendant a fractional share in the unexpired residue of Crown leases relating to various pieces of land including Subsection 4 of the Remaining Portion of Section A of Inland Lot No.41.

2. For the purpose of proving his title to the piece of land just particularised, the Plaintiff has sought to rely on an assignment dated the 19th September, 1975, registered in the Land Office by Memorial No. 1207420 and made between Leung Yuk-chim, as vendor, and Ho Wai Development Ltd., as purchaser. Under that assignment, Leung Yuk-chim purported to sell as administratrix of the estate of Madam Yau Chung-wah.

3. According to the recitals in that assignment, Yau Chung-wah had died on the 21st December, 1955 intestate, and letters of administration to her estate were granted to the vendor, Leung Yuk-chim, on the 19th August, 1961. It was further recited that the vendor had not given or made any assent or assignment in respect of the legal estate in or affecting the land, the subject matter of the present action, and it was further recited that the vendor as such administratrix as aforesaid and in due course of administration of the estate of Yau Chung-wah had agreed with Ho Wai Development Ltd., as purchaser, to sell that land for the price therein specified. The assignment then went on to declare that in consideration of the purchase price therein specified (the receipt of which the vendor acknowledged) the vendor as such administratrix as aforesaid and in due course of administration of the estate of the deceased thereby assigned the land to the purchaser. The assignment was duly executed by the vendor.

4. The content of that assignment has prompted the Defendant's solicitor to raise the following requisition by a letter dated the 15th October, 1980:-

	"......................................
	Upon perusal of the relevant title deed, we have observed that the Vendor Leung Yuk Chim in Assignment Memorial No. 1207420 dated 19th September, 1975, was selling in the capacity of the administratrix of the estate of Yau Chung Wah.
	In the recital of the said Assignment, it was stated that Letters of Administration of the estate of the said deceased were granted on the 19th day of August 1961. In the said sale, the administratrix was described as selling "in due course of administration of the estate." The said Assignment was executed by Madam Leung alone as Vendor and she alone signed against the receipt clause endorsed on the said Assignment.
	On account of the fact that there is rougly about 14 years between the grant of the Letters of Administration and the sale of the said premises and in the absence of any information concerning the size and complexity of the said estate and other circumstances, our impression is that the administratrix cannot possibly claim to be selling in the course of administration. As we all know, it is the duty of the personal representative to ensure that administration must be completed within a reasonable time, after which the personal representative becomes trustee of the estate and not administratrix.
	As we have not been given any information concerning the said estate and on account of the rather long period of administration, there is a likelihood that the capacity of Madam Leung might have changed from administratrix to that of a trustee and therefore affected by the Trustee Ordinance.
	Your attention is further drawn to Section 62(1) of the Probate and Administration Ordinance (1971) Cap. 10 and Section 15(2) of the Trustee Ordinance, Cap. 29. Section 62(1) provides that "On the death of a person intestate as to any property, such property shall be held by his personal representatives (a) as to the immovable property upon trust, subject to Section 54, to sell the same ............". By the provision of Section 15(2) of the Trustee Ordinance, there must be 2 persons to sign for the receipt of the purchase money, and a personal representative is within the meaning of "Trustee" in Section 15 of the Trustee Ordinance by reason of the definintion of "trustee" and "trustees for sale" in Section 2 of the Ordinance."

5. The present proceedings have been brought for a declaration as to whether the assignment dated the 19th September, 1975, passed a good title to the Plaintiff's predecessor in title, Ho Wai Development Ltd., and whether Leung Yuk-chim, as sole administratrix, was capable of giving a good discharge for the purchase money she received.

6. Bearing in mind that Madam Yau Chung-wah died before the 7th October, 1971, which was the date when the Probate and Administration Ordinance, Cap. 10, came into effect, I do not consider that Section 62(1) of that Ordinance affects the administration of her estate. I regard it as inconceivable that Section 62(1) was ever intended to operate in respect of the estates of persons dying before this legislation came into effect. In respect of persons dying intestate before the 7th October, 1971, their estates devolved upon their administrator or administrators without any trust for sale arising. A trust for sale is a statutory creation which only applies in respect of those persons dying intestate after the 7th October, 1971. Where no trust for sale arises, Section 15(2) of the Trustee Ordinance, Cap. 29, has no application, being limited to money arising under a trust for sale:-

"15(2) This section does not, except where the trustee is a trust corporation, enable a sole trustee to give a valid receipt for the proceeds of sale or other capital money arising under a trust for sale of land."

The death of Yau Chung-wah having occurred before the 7th October, 1971 means that the administration of her estate is to be governed by the common law, subject to any relevant statutory modifications. It has never been questioned that at common law a sole administrator was entitled to dispose of land and give a good discharge for the purchase money. For such a basic proposition, reference can be made to such standard works as Williams on Title 4th edition at pages 320 and 321 and also to Williams on Executors 12th edition at page 506.

7. The problem referred to in the Defendant's solicitor's letter of the fourteen year delay between the grant of the letters of administration and the sale of the premises is not one which gives the Court any cause for concern. If, as the Court considers more probable, Leung Yuk-chim was selling in her capacity as personal representative, she was able to give a good discharge by virtue of her common law powers. On the other hand, if, as the Defendant's solicitor seems to think, her capacity might have changed to that of a trustee, she would still have been able to give a good discharge. The power of a trustee to give a good discharge is to be found in Section 15(1) of the Trustee Ordinance. That provides as follows:-

"15(1) The receipt in writing of a trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to him under any trust or power shall be a sufficient discharge to the persons paying, transferring, or delivering the same and shall effectually exonerate him from seeing to the application or being answerable for any loss or misapplication thereof."

8. Thus, in whichever capacity she was acting in - personal representative or trustee - she would in either case have given a good discharge.

9. Purely as a matter of interest, I express the opinion that Leung Yuk-chim was still acting as a personal representative, rather than as trustee, at the time of the sale. I do not think that the Defendant was entitled to query whether Leung Yuk-chim had completed her administration. See Re Venn & Furze's Contract⁽¹⁾.

10. My conclusion, therefore, is that the assignment discloses that Leung Yuk-chim was able to convey a good title to Ho Wai Development Ltd., which got a good discharge for its money.

11. Whether a sole administrator could give a good discharge in respect of the sale of land comprised in the estate of someone dying after the 7th October, 1971 is a question which simply does not arise on the facts before me and I express no opinion on it.

	(J.J. Rhind)
	Judge of the High Court

Representation:

Mr. Edward Chan (Walter Woo & Co.,) for plaintiff

Miss H.C. Wong (Lau & Co.,) for defendant

(1) (1894) 2 Ch. 101