Yeung Yiu Fai v. Tam Yun King

DCMP 1280/2015

MISCELLANEOUS PROCEEDINGS NO 1280 OF 2015

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JUDGMENT

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INTRODUCTION

1.The plaintiff (“Mr Yeung”) and the defendant (“Madam Tam”) were husband and wife.  They jointly own a property known as 4^th Floor, 11A Sheung Heung Road, Kowloon, Hong Kong (“the Property”) as joint tenants.  The saleable area of the Property is about 560 square feet.  The Property is in a building with an age of not less than 58 years.

2.In these proceedings, Mr Yeung seeks an order for sale of the Property and an order requiring Madam Tam to account for occupation rents and profits for occupying and using the Property.

3.Both Mr Yeung and Madam Tam have adduced evidence through affirmations.  They have also attended the trial to give evidence and have been cross-examined by the other side.

4.Mr Yeung has produced evidence to show that the annual ratable value of the Property is less than HK$240,000. Accordingly, I am satisfied that by virtue of s 9 of the Partition Ordinance (Cap 352) (“PO”), this court has jurisdiction to hear and determine Mr Yeung’s application.

BACKGROUND

5.I would first set out the background facts.  On matters in respect of which Mr Yeung and Madam Tam disagree with each other, I would set out the respective versions of the parties.

6.Mr Yeung and Madam Tam married to each other on 8 February 1984.  They have 3 children:-

(a) the eldest son was born on 9 February 1986 (“the Son”);

(b) the first daughter was born on 4 November 1990 (“the 1st Daughter”);

(c) the second daughter was born on 1 February 1995 (“the 2^nd Daughter”).

7.After the marriage, Mr Yeung was working as a butcher and Madam Tam was working as a sewer.

8.The couple purchased the Property on or about 24 August 1987.

9.Madam Tam said when purchasing the Property in 1987, she and Mr Yeung had made a promise to each other.  The version of the promise set out in Madam Tam’s affirmations is different from the version mentioned by Madam Tam in her oral evidence.  Madam Tam said the version in her oral evidence was the correct version.

10.According to Madam Tam, the promise made in 1987 is that if in future any of them has an affair and is unfaithful to the marriage vow, his or her interest in the Property should be passed to the children (“the alleged promise”).  Mr Yeung denied the existence of the alleged promise.

11.The purchase price of the Property was HK$290,000.  The couple managed to pay a down-payment of HK$190,000 and borrowed a loan secured by a mortgage of the Property to pay the remaining HK$100,000.

12.As to the down-payment of HK$190,000, the couple paid off the same by withdrawing HK$110,000 from their savings (as both Mr Yeung and Madam Tam were working, Mr Yeung’s contributions to these savings would not be insignificant), borrowing HK$50,000 from Madam Tam’s mother (which was jointly repaid by the couple later) and borrowing HK$30,000 from Mr Yeung’s mother.

13.As to the mortgage repayments made from 1987 to 1990, Mr Yeung said those repayments were made by him, for he paid money to Madam Tam each month for all the household expenses, which would include the mortgage repayment.  Madam Tam said that Mr Yeung’s monthly payments to her would not be sufficient to cover the mortgage repayments, and the mortgage repayments were all from her salaries.

14.Mr Yeung won HK$130,000 in a horse racing in 1990.  He used the money to pay off the outstanding balance of the mortgage loan, which was around HK$80,000 at that time.  Mr Yeung also used the money to repay the HK$30,000 owed to his mother.  The mortgage was discharged on or about 3 September 1990.

15.The relationship between the couple turned sour gradually.  In 1999, Madam Tam moved all Mr Yeung’s personal belongings to his parents’ home and required Mr Yeung to leave.  Mr Yeung alleged that the breakup of the relationship was caused by Madam Tam indulging herself in gambling.  Madam Tam on the other hand said that the relationship could not continue because Mr Yeung was having another woman.

16.The parties entered into a Deed of Separation on 15 January 1999 (“the DS”).  That deed was drafted by Madam Tam’s solicitors.  The DS provides, inter alia:-

“1. The Wife and the Husband shall continue to live separate and apart from and free from the marital control or authority of the other as if they had no relationship whatsoever with each other and may reside at such a place from time to time and in such manner and engage in such business as she or he may choose and neither of them shall molest annoy disturb or interfere with the other or her or his relations friends or acquaintances or in her or his profession or business.

2. The Wife and the Husband shall each at all times hereafter out of her or his own income and resources support and maintain herself or himself and shall at all times hereafter keep the other of them indemnified against all debts heretofore or hereafter contracted and incurred by her or him and against all actions proceedings claims demands costs damages losses and expenses in respect of and on account of any matter aforesaid and shall not at any time hereafter pledge the credit of the other of them.

……

5. The Wife shall have the custody and control of the said children. Reasonable access to the said children shall be allowed to the Husband.

6. The Husband shall pay the sum of $12,000 per month to the Wife being total maintenance for the welfare and benefit of the Wife and the children of the family.”

17.The DS does not touch upon the Property.  As to why the DS does not cover the Property, Mr Yeung and Madam Tam have given different explanations:-

(a) Mr Yeung said at the time of the DS, he did not request to deal with the Property because the 3 children were very young at that time, and Madam Tam and the children should have a place to live in at that time.

(b) Madam Tam said the following in paragraph 4 of her affirmation made on 18 December 2015:

“At the time of the divorce in 1999, the lawyer reminded me to take over the Property as a sole owner. As the custody of 3 children was delivered to me, it was risky that the Plaintiff might take any action towards the Property. However, I did not select and adopt that advice to deal with the Property because of the promise between me and the Plaintiff, to keep the Property for our children. Hence, I did not request to deal with the Property at the time of separation.”

18.After Mr Yeung moving out from the Property in 1999, Madam Tam and the 3 children continued to live in the Property.

19.The marriage was dissolved by a decree absolute on 19 May 2000.

20.Mr Yeung said after the divorce, he regularly paid maintenance to Madam Tam and the 3 children with occasional extra payments as gifts.  Mr Yeung said amongst the HK$12,000, HK$3,000 was for the maintenance of Madam Tam, and HK$3,000 was for each of the children until he or she reached the age of 18.  Mr Yeung said notwithstanding that the maintenance to each child should only be payable up to that child reaching the age of 18, he continued to pay no less than HK$12,000 per month to Madam Tam until February 2010.  After February 2014, he paid no less than HK$11,000 per month to Madam Tam until late 2014.  He stopped to pay maintenance in late 2014 because he could not continue to work as a result of his illness.  Mr Yeung said he would pay cash gifts directly to the children when they met, and he also paid HK$50,000 as a gift to the Son in 2014 when the Son got married in that year.

21.Madam Tam said Mr Yeung did not pay the maintenance regularly, and sometimes Mr Yeung just paid less than the amount stipulated in the DS.  Madam Tam agreed that Mr Yeung had paid HK$50,000 to the Son when the Son got married in 2014, but she however paid about HK$170,000 to fund the Son’s marriage.

22.In October 2014, Mr Yeung was diagnosed with cancer of right parotid gland.  On 1 December 2014, Mr Yeung received a surgery.

23.Mr Yeung said as a result of his illness, there were medical expenses and he could not continue to work.  He was in need of money.  He had repeatedly contacted Madam Tam to discuss with her the disposal of the Property.  Mr Yeung wanted to liquidate his interest in the Property to get money.  The discussion between the parties did not lead to any agreement.

24.Thereafter, Mr Yeung’s solicitors wrote to Madam Tam on 2 February 2015 and 25 March 2015 respectively, and in each letter the solicitors proposed sale of the Property in the market and dividing the proceeds between Mr Yeung and Madam Tam equally, alternatively sale of Mr Yeung’s 50% interest in the Property to Madam Yeung.  Madam Tam did not agree to any of these proposals. 

25.Madam Tam said over the years, all the building maintenance fees, building insurance, and all the government fees relating to the Property were paid by her.  In particular, she paid HK$220,000 to renovate the Property in 2006 as there was water seepage at that time.  Mr Yeung did not dispute that during Madam Tam and the children’s occupation of the Property, all the maintenance, insurance and government fees were paid by Madam Tam, but Mr Yeung said the renovation fee in 2006 was only about HK$100,000.

26.At present, there are 6 people (“Madam Tam’s family”) living in the Property, ie Madam Tam, the Son, his wife (“the Daughter-in-law”), his son (“the Grandson”), the 1^st Daughter and the 2^nd Daughter.  The Daughter-in-law is now pregnant and will give birth to the 2^nd child in August 2016.  According to Madam Tam, the financial situation of her family is as follows:

(a) Madam Tam is earning around HK$13,500 per month;

(b) the Son is earning around HK$16,000 per month;

(c) the Daughter-in-law is looking after the Grandson and does not have any income;

(d) the 1^st Daughter is earning around 13,200 per month; and

(e) the 2^nd Daughter is a full-time student pursuing for a bachelor degree in Hong Kong, and it is expected that the 2^nd Daughter would complete the degree course in late 2016.

27.The market value of the Property at present is around HK$3 million.

28.Mr Yeung said with 50% of the sale proceeds, and the fact that Madam Tam and 2 children were working and having incomes, Madam Tam and the children would be able to rent or buy a new unit to live therein after the sale of the Property.

29.Madam Tam on the other hand said losing the Property would cause tremendous hardship to her and the children:-

(a) 50% of the sale proceeds would definitely not be sufficient to buy a new unit accommodating Madam Tam’s family.  According to Madam Tam, to buy a unit with similar saleable area in the same district would cause around HK$12,500,000.

(b) To rent a unit for Madam Tam’s family would need HK$15,000 per month.  The income of the Son would only be sufficient to support himself, his wife and his son.  Putting Madam Tam’s income and the 1^st Daughter’s income together, after paying the rentals, the remaining balance would not be enough to support the whole family.

(c) Madam Tam would need to continuously support the 2^nd Daughter to complete the degree course by paying the tuition fees.

30.Madam Tam also said in the last 15 years, she had borrowed around HK$480,000 from her sisters to pay the fees relating to the Property and the tuition fees of the 3 children.  Further, she borrowed HK$150,000 from a bank in early 2015 to support the family, since Mr Yeung stopped to pay the maintenance fees in late 2014.  Madam Tam said allowing Mr Yeung to stop to pay the maintenance fees was already a big support to Mr Yeung in view of his illness.

THE ISSUES

31.The issues to be resolved are as follows:-

(a) what would be the respective beneficial interest of each party in the Property;

(b) whether there should be an order for sale of the Property; and

(c) whether Madam Tam is required to account to Mr Yeung for all rents and profits as a result of Madam Tam’s occupying and using the Property.

BENEFICIAL INTEREST

32.On the question of the beneficial ownership of the Property,

(a) Mr Yeung’s case is that although he has contributed the majority of the purchase price of the Property, as the Property was the matrimonial home of the couple, he would agree that he and Madam Tam would each has 50% beneficial interest of the Property.

(b) Madam Tam’s case is that she has 2/3 of the beneficial interest of the Property, while Mr Yeung has 1/3.

33.As to the respective contributions to the purchase price of the Property:-

(a) The parties agree with each other on all aspects, save and except who made the mortgage repayments from 1987 to 1990.

(b) I am of the view that even according to Madam Tam’s case, Mr Yeung had contributions in these repayments. Mr Yeung had paid for the family expenses during this period.  Without Mr Yeung taking up these expenses, Madam Tam herself would not be able to use her salaries to make the mortgage repayments.

(c) Further, even if giving all the credits of these repayments to Madam Tam, the total of these repayments would only be around HK$20,000.

34.It is clear that the majority of the purchase price was contributed by Mr Yeung.  This provides a solid basis in support of Mr Yeung’s case on the respective beneficial interests of the parties in the Property.

35.On the other hand, Madam Tam’s case lacks any sound basis.

36.I find that each of the party has 50% beneficial interest in the Property.

ORDER FOR SALE

The law

37.Section 6(1) of the PO provides:-

“In any proceedings under this Ordinance, where it appears to the Court that a partition of the property would not be beneficial to all the persons interested by reason of-

(a) the nature of the land to which the proceedings relate;

(b) the number of the persons interested or presumptively interested;

(c) the absence or disability of some of the persons interested; or

(d) any other circumstances,

the Court may make an order for the sale of the property.”

38.In Pun Jong Sau & Others v Poon Wing Kong & Others[1977-1979] HKC 210 at p. 218E-F, Trainor J reviewed the history of the law pertaining to partition in England and the development of the law in Hong Kong.  The learned judge came to the view that the primary intention of the PO was to enable an unwilling co-owner to rid himself of the shackles of co-ownership and to have either a physical division of the property into aliquot parts among the co-owners or a division of the proceeds of its sale.

39.In Wong Chun Kei v Poon Vai Ching [2007] 1 HKLRD 825 Recorder Fok SC (as he then was) after reviewing the authorities in this area set out the following guiding principles for the exercise of discretion by the court under the PO:-

(a) A co-owner has a basic right to rid himself of the shackles of co-ownership and, if he has no other remedy, ask for an order for partition or sale;

(b) When it is impracticable to make an order for partition, the court should make an order for sale unless it is persuaded (the burden being on the opposing co-owner(s)) that such an order will not be beneficial to all the co-owners or that it will result in very great hardship to one co-owner;

(c) Whether an order for sale is beneficial to all the co-owners is not determined by the dissent of the opposing co-owners or the assertion by them that it is not beneficial. It has to be determined by the court objectively.

40.In Re Lau Hiu Tuen (HCB 8430/2006, 20 August 2006), G. Lam J further explained the principles laid down in Wong Chun Kei at [21]-[22]:-

“21. What is meant by the phrase “such an order will not be beneficial to all the co-owners” in (b) above seems to me to be that the order will be beneficial to some only of the co-owners, not that the order will be beneficial to none of the co-owners.  Accordingly, an order for sale would not be refused unless all the co-owners would be benefitted by its refusal or, in other words, an order for sale would be detrimental to all the co-owners, or unless it will result in very great hardship to one co-owner. See also Beautiglory Investment Ltd v Tang Moon Sum & others, HCMP 531/1989, 10 December 2003, at §32.

22. The same approach was stated earlier in Fook Sun Enterprises Co Ltd v Cromwell Investment Co Ltd & Ors [1973-1976] HKC 335 at 337 H-I, where Briggs CJ said:-

“It was suggested that this was not a case for the court to make an order for sale under section 6 of the Ordinance: but that the proper course for the court to take was to make no order under section 2(c) of the Ordinance. I do not agree. I agree with Mr Litton’s interpretation of section 2(c) of the Ordinance. I think that a court would only make no order, neither an order for partition nor an order of sale, when the interests of all the parties would be better served by their continuing to remain co-owners, or where the facts show that to make such an order would result in very great hardship to one co-owner.””

41.The court will make an order for sale on the application of a co-owner unless it is satisfied that all the co-owners would be better served by the refusal of the order or that making an order would result in very great hardship to one co-owner: see Wong Chun Kei Johnny v Poon Vai Ching [2007] 1 HKLRD 825 at [16]-[19]; Fook Sun Enterprises Co Ltd v Cromwell Investment Co Ltd & Ors [1973-1976] HKC 335 at 337 H-I.

42.The court may grant an order for sale notwithstanding the dissent of any person interested.  See s 6(2) of the PO.

Impracticable for partition and order for sale would benefit Mr Yeung

43.Mr Yeung is a co-owner of the Property having 50% beneficial interest therein.  He wants to rid himself of the shackles of co-ownership.

44.The Property is a residential unit in a multi-storey building having a saleable area of about 560 square feet.  I am satisfied that it is impracticable to make an order for partition in these circumstances.

45.Mr Yeung is now suffering from cancer and cannot work.  He wants to sell the Property to get some money to pay his medical expenses and to support his living.  The sale of the Property would be beneficial to Mr Yeung.  It cannot be said that all the co-owners would be better served by the refusal of the order for sale.

46.Accordingly, in accordance with the principles set out above, I should make an order for sale unless Madam Tam can persuade me that the sale of the Property would result in very great hardship to her.

Whether Madam Tam has shown very great hardship?

47.I am not going to resolve all the differences between Mr Yeung and Madam Tam, for it would not be necessary for me to do so for the purpose of these proceedings.  I would however make a determination on the existence of the alleged promise, for it may have some relevance on the issue of hardship.  If the alleged promise was made in 1987, Madam Tam may argue that she arranged her financial matters at all times since the separation by relying upon the promise, and it would be unfair to her and would cause her hardship if Mr Yeung tries to go back on his words.

48.On the existence of the alleged promise, I accept Mr Yeung’s evidence and do not accept Madam Tam’s evidence:-

(a) Madam Tam said that the cause of the separation was Mr Yeung having another woman.  This would have triggered the performance of the alleged promise and Mr Yeung would have to pass his interest in the Property to the children.  In these circumstances, there is no reason for Madam Tam not dealing with the Property in the DS, particularly her lawyer did remind her to pay attention to the Property at the time of the DS.  The only explanation is that such promise has never been made.

(b) If Madam Tam’s case is true, Mr Yeung would have an obligation to pass his interest to the children at the time of the separation.  However, the DS expressly provides that as from the date of the deed, Mr Yeung and Madam Tam would continue to live separately as if they had no relationship whatsoever with each other, and each of them should out of his or her resources support and maintain himself or herself.  So in accordance with the DS, apart from paying the maintenance stipulated in the DS, Mr Yeung would owe no obligation to Madam Tam and the children.  I do not think the terms of the DS (prepared by Madam Tam’s solicitors) are consistent with the existence of the alleged promise. 

(c) There is no evidence showing that over the years, Madam Tam has ever requested Mr Yeung to transfer his interest in the Property to the children.  The absence of such requests can only be explained by the fact that the promise alleged by Madam Tam does not exist.

49.Madam Tam said to purchase a unit with similar saleable area in the same district would need about HK$12,5000,000.  In saying this, Madam Tam was referring to the asking price of a unit with a magnificent view in a new development.  I do not think this can be used as a reference of the market price of a unit similar to the Property, which is a unit in a building with an age of not less than 58 years.

50.Having said that, I can readily accept that if there is an order for sale, 50% of the net proceeds would not be sufficient to purchase a similar unit in the same district.  However, Madam Tam may use the sale proceeds to rent a similar unit.

51.The market value of the Property is around HK$3 million.  50% of the net sale proceeds would not be a small sum, and would definitely be over HK$1 million.

52.According to Madam Tam, to rent a similar unit would need about HK$15,000 per month.  So even without any contribution from anyone in Madam Tam’s family, by solely using the 50% of the net sale proceeds, Madam Tam would be able to rent a similar unit for more than 5 years in future.

53.Madam Tam said that she would need to repay some loans.  There is no evidence showing that the sale of the Property would trigger early repayment of or a higher interest rate on any of these loans.

54.Madam Tam, the Son, and the 1^st Daughter are working and having incomes.  Although Madam Tam’s family will have a new member in the August 2016, it is expected that the 2^nd Daughter would finish her degree course in late 2016 and would start her career thereafter.  With all these incomes and with the 50% of the net sale proceeds, I do not think the sale of the Property would result in very great hardship to Madam Tam’s family. 

55.I can well understand that Madam Tam and the children want to stay in the Property, and requiring them to leave and to find a new place to live in would cause inconvenience and difficulties to them.  However, as I am not satisfied that Madam Tam has made out a case of very great hardship, in accordance with the established principles, I have to make an order for sale.

OCCUPATION RENTS AND PROFITS

No profit

56.As to Mr Yeung’s claim for an account of occupation rents and profits, I can say at the outset that I am not with Mr Yeung on the claim for an account of profits.

57.Mr Yeung’s own evidence is that after his moving out from the Property, Madam Tam and the 3 children have been living in the Property at all times.  In other words, Madam Tam has never let the Property to anyone else and has never used the Property to make any profit.  Accordingly, Mr Yeung’s claim for an account of profits must fail.

No occupation rent

58.The remaining question is whether Madam Tam is liable to account to Mr Yeung for any occupation rent.

59.In relation to this, the learned authors of Snell’s Equity (33^rd Ed) said:-

“20-085 (a) Occupation rent

Whereas the common law took the position that one co-owner would not be liable to pay rent to another absent ouster or some form of agreement, the approach of the Court of Chancery was more flexible. The position adopted in modern cases is that rent may be charged against an occupying co-owner where this is necessary to do broad justice between the parties. It is still the position that co-owner cannot, by leaving voluntarily, make the other liable for rent. But apart from cases where a co-owner is able to occupy but has chosen not to, an occupation rent will usually be charged, subject to any contrary common intention or arrangement between the parties. In the case of broken cohabiting relationships, the question may therefore depend on whether the claiming party left voluntarily and whether they would be welcome back.

……

20-089 (e) Period of accounting

Whether the accounting extends back over the entire period of co-ownership depends on the intentions of the parties. Ordinarily the court may infer from the fact of a cohabiting relationship that during the period of cohabitation it was the common intention of the parties that neither should thereafter have to account to the other in respect of expenditure incurred on the property during that period for their joint benefit. Exceptional circumstances may arise, for instance, where there was during the period of cohabitation a breach of an arrangement or common understanding relating to the payment of outgoings.” (Emphasis added)

60.In Re Barcham, sub nom French v Barcham [2009] 1 WLR 1124, Blackburne J explained the principle in the context of bankruptcy at [35]:-

“When a trustee in bankruptcy has been appointed of the estate of a co-owner so that that co-owner’s interest vests in the trustee, but the other co-owner remains in occupation of the property, application of the principle will ordinarily, if not invariably, result in the occupying co-owner having to account to the trustee of the beneficial interest to which the bankrupt co-owner was formally entitled for an occupation rent. This is because it is not reasonable to expect even if it were otherwise practicable for him to do so the trustee in bankruptcy to exercise the right of occupation attaching to the interest in the property that vested in him on his appointment as trustee of the bankrupt co-owner. If it could be shown that the occupying co-owner was given by the trustee to understand that no occupation rent would be charged or was unaware of, and had no reasonable means of discovering, the other co-owner’s bankruptcy, the court might take the view that it would not be just to require the occupying co-owner to pay an occupation rent. But short of such circumstances it is difficult to see why the occupying co-owner should not be charged an occupation rent.” (Emphasis added)

61.I would decline to make an order for account of occupation rent:-

(a) Mr Yeung’s case is that at the time of the separation, he allowed Madam Tam and the children to live in the Property because at that time the children were very young.  Mr Yeung did not demand Madam Tam to pay any occupation rent.

(b) By allowing Madam Tam and the children to live in the Property without demanding for any occupation rent, Mr Yeung has given an impression to Madam Tam that no occupation rent would be charged.

(c) Over the years, Mr Yeung has not demanded for any occupation rent.  Even in the demand letters wrote by Mr Yeung’s solicitors on 2 February 2015 and 25 March 2015 respectively, there is no mention of any occupation rent.

(d) The demand for occupation rents only appears for the first time in the Originating Summons herein.

(e) Having given Madam Tam an impression that no occupation rent would be charged and having not demanded for the same at all times before the commencement of these proceedings, I am of the view that it would not just to require Madam Tam to pay occupation rent in these circumstances.

Maintenance and repairing expenses

62.For the sake of completeness, I also set out my view on whether Mr Yeung has to account to Madam Tam for the maintenance and repairing expenses concerning the Property paid by Madam Tam over the years.  I would answer the question in the negative.

63.The general rule is set out in Snell’s Equity (33^rd Ed), para.20-087(c):-

“In general one co-owner cannot execute improvements or repairs and then charge another with a share of the cost. This is subject to an exception where expenditure increases the value of the property. Where this is so, the spending party may upon sales often recover the lesser of a proportion of their expenditure and a proportion of the attributable increase in value. These principles are, however, always subject to any contrary common intention of the parties.”

64.There is no evidence showing that the maintenance or repairing works done by Madam Tam has increased the value of the Property.  Accordingly, in accordance with the general rule, I do not think Mr Yeung has to share the costs of these works.

65.Further, as Madam Tam has been living in the Property and is not required to pay any occupation rent, in my view it would be just and fair for those maintenance and repairing expenses to be borne by Madam Tam.

CONCLUSION

66.For the reasons above, I would make an order for sale of the Property but refuse to order an account of any occupation rent or profit.

67.While the Property has to be sold, it would be in the mutual interest of the parties if the expenses of the sale can be minimized and the best selling price in the market can be achieved.  I therefore would direct the parties to agree on the manner of the sale for the purpose of achieving these objectives within 28 days.  In the absence of an agreement between the parties, the Property would be sold by public auction.

68.After deducting the expenses of the sale, the net proceeds should be divided equally between Mr Yeung and Madam Tam.

69.I would also give the parties liberty to apply.  If the parties encounter any difficulties in performing my order, they may apply for directions in due course.

70.As to costs, I am of the view that costs should follow the event.  While Mr Yeung succeeds in getting the order for sale, he fails in obtaining the order for account of occupation rents and profits.  Having said that, most of the time in these proceedings is spent on the order for sale.  Taking all these into account, I would make a costs order nisi that Mr Yeung would have 2/3 of the costs of these proceedings.  This order nisi would become absolute unless either party makes an application to vary the same within 14 days.

71.With the aforesaid in mind, I make the following order:-

(a) there be an order for sale of the Property;

(b) the parties shall agree on the manner of the sale for the purpose of minimizing the expenses incurred and achieving the best selling price in the market within 28 days; in the absence of such agreement, the Property be sold by public auction;

(c) after deducting the expenses incurred in the sale, the net proceeds be divided equally between Mr Yeung and Madam Tam;

(d) liberty to apply;

(e) the application for an account of occupation rents and profits be dismissed;

(f) there be a costs order nisi that 2/3 of the costs of these proceedings be paid by the Madam Tam to Mr Yeung, to be taxed if not agreed; and

(g) Mr Yeung’s own costs be taxed in accordance with Legal Aid Regulations.

72.I further direct that this judgment be interpreted to Madam Tam by a court interpreter at the time of handing down of the same.

73.I thank parties for the valuable assistance rendered to this court.

Miss Ip Wah, of Tsui & Co, assigned by the Director of Legal Aid, for the plaintiff

The defendant appeared in person