Weekly review: 13th – 17th August 2012

Charging orders

When determining whether or not to make charging orders absolute. The court ‘has both the right and the duty to take into account all the circumstances of a particular case (whether they arose before or after the making of the order nisi) and it should exercise its discretion so as to do equity, so far as possible, to all the parties involved, ie the judgment creditor, the judgment debtor and / or other unsecured creditors.’  (Chan Miu Cheung v Prague Enterprises Ltd ).

Common intention constructive trust

There can be no successful claim for an interest under a common intention constructive trust where, to succeed, the claimant would need to rely on an agreement entered into for an unlawful purpose (Barrett v Barrett).

Deed of mutual covenant: construction: interpretation: owners’ meetings

A DMC is to be construed so as to give commercial sense to its terms. For a meeting of owners to exercise a discretion conferred on it by the DMC, the relevant question must be before the meeting and it must be clear that they are attempting to exercise the discretion. (郭錦燊v 澤安閣業主立案法團).

Joint tenancies: Housing Act 1985 (England)

Where a joint tenant of a secure tenancy dies, it is the surviving joint tenant who has the right to the secure tenancy. A secure tenancy can effectively be terminated during a period when the surviving joint tenant fails to meet the criteria to be a secure tenant. This is so even though there is a third party (eg a daughter living at the property) to whom the secure tenancy could be transmitted (Solihull MBC v Hickin).

Resulting trust

A claimant can rely on the presumption of a resulting trust even where the transfer was made for an unlawful purpose if there is no need to plead or rely on the unlawful purpose (Yue Shiu Ngam v Zen She Lin).


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