黃曼琪 v. 洪秀錢(黃奕仁之遺產管理人)及另三人

HCMP 21/2015

香港特別行政區

高等法院原訟法庭

民事司法管轄權

高院雜項案件2015年第21號

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JUDGMENT
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1.This is the plaintiff’s application for an order of possession of the property known as Flat D on 1st Floor, Piedmont Garden, Nos 37, 37A, 39 and 39A Tin Hau Temple Road, Hong Kong (“Property”).  The plaintiff acts in the capacity of the sole executrix appointed by the late Madam Muk Kwai Sau (“Testator”) under her last will and testament dated 4 November 2004 (“Will”).  The grant of probate was obtained on 10 August 2010 and the Property was the only asset of the Testator.

2.The plaintiff seeks an order that, within 45 days from the date of the order, the 2nd defendant and/or other person(s) who is/are now occupying the Property is/are to deliver vacant possession of the Property to her.  Apart from the 2nd defendant, none of the other defendants is disagreeing with this application.  However, the 2nd defendant has not appeared today.

3.Upon obtaining vacant possession of the Property, the plaintiff intends to carry out simple repairs to the Property and then sell it to the highest bidder within 6 months from the date of vacant possession.  The proceeds of the sale will then be distributed to the beneficiaries of the Will after deducting all the expenses incurred on the repair and sale of the Property, as well as the legal costs incurred in the negotiations with the 2nd defendant for vacant possession of the Property (excluding the costs of these proceedings).

4.There are 5 beneficiaries under the Will, namely, the parties in these proceedings who are the children of the Testator (the 1st defendant is the wife of the eldest son of the Testator and representing his estate). 

5.There can be no question that the plaintiff is entitled to bring these proceedings to recover the Property from the 2nd defendant in order to administer the estate of the Testator. 

6.I regret to say that I can see no defence to these proceedings.  The Property has been occupied by the 2nd defendant and his family of 4 (himself, his wife and 2 sons) for many years.  The evidence filed by the 2nd defendant does not suggest that he has any right to occupy the Property indefinitely.  Indeed, he has previously agreed to move out of the Property so as to allow it to be sold and the proceeds of sale be distributed to the beneficiaries.  That agreement was encapsulated in a confirmation letter dated 15 June 2013 (“1st Agreement”). Pursuant to that agreement, the 2nd defendant was paid HK$150,000 by the 1st defendant as advanced payment of his share in the proceeds of sale, which was increased to more than 20%. 

7.However, the 2nd defendant then reneged on the 1st Agreement and refused to allow the viewing of the Property by potential buyers. 

8.By another confirmation letter dated 22 May 2014, the 2nd defendant acknowledged the receipt of the HK$150,000 and promised again to deliver possession of the Property.  Again, the 2nd defendant failed to live up to his promise. 

9.In these circumstances, it is ironic for the 2nd defendant to complain in his affirmation that these matters should have been resolved by the family in an amicable manner. 

10.For completeness, I should say that I see no substance in the half-hearted suggestion made by the 2nd defendant that the Testator might have lacked testamentary capacity in respect of the Will.

11.For these reasons, I give judgment for the plaintiff in the terms of the Originating Summons dated 6 January 2015 as amended.  The amendment is to reflect the fact that the plaintiff has agreed to bear the costs of these proceedings herself.  It is an admirable act of generosity on her part.

Mr Patrick SL Wong, instructed by Chiu, Szeto & Cheng, for the plaintiff

The 1^st defendant appeared in person

The 2^nd defendant was not represented and did not appear

The 3^rd defendant appeared in person

The 4^th defendant appeared in person