Chung Chi Cheung v. Chung Kwan Wa

HCMP 1478/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1478 OF 2016

______________________

______________________

______________________

________________

J U D G M E N T

________________

1.This is an application under the Partition Ordinance (Cap 352) for an order for partition of Lot No 156 in Demarcation District No 18, Ping Long, Tai Po, New Territories (which I will refer to as “the Land”) into Section A and the remaining portion.

2.The application is made by the plaintiff who succeeded to his father’s estate in 1995.  The parties concerned are indigenous villagers, the defendant being the plaintiff’s granduncle.

3.The plaintiff has not met the defendant personally, but is aware that the defendant did not have any children.  None of the male members of the clan is able to shed any light on the whereabouts of the defendant.  Searches have been done at the Births and Deaths Registry and also the Probate Registry, but nothing has come to light.

4.On 8 July 2016, an order for substituted service of the present originating summons was made by way of advertisement in two Chinese papers and one English paper in Hong Kong for a consecutive period of three days.

5.The plaintiff has complied with the service requirements, but no one has come forward.  The defendant is absent today.

6.The land is triangular in shape and is vacant without any buildings on it and has remained so for over 20 years. There is a valuation report which shows that the land is zoned for Village Type Development, the zoning used being “V”.

7.The land has been valued at $2.45 million and the proposed partition, which is shown on a plan attached to the valuation, values Section A at $1.28 million and the remaining portion at $1.17 million.  The difference is therefore fairly minimal, something in the region of $55,000.

8.The plaintiff is unable to build a small house on the land because he is a tenant in common with the defendant.  The plaintiff, who lives about 10 minutes away from the land, wishes to give it to his son, who turns 18 in May 2017, and if the land were partitioned and he were the sole owner, he or his son would be able to apply to build a small house. The plaintiff has indicated that he will be giving financial assistance to his son for that purpose, so that he could have a place of his own for the future.

9.The principles that are usually applied in such applications are clearly set out in Wong Chun Kei v Poon Vai Ching [2007] 1 HKLRD 825.  The relevant paragraphs are 16 to 19 of that judgment. 

10.Essentially, first, a co-owner has a basic right to rid himself of the shackles of co-ownership and, if he has no other recourse, ask for an order for partition or sale.  Second, 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 or co-owners) that such an order will not be beneficial to all the co-owners or that it will result in very great hardship to one owner.  Third, 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.

11.Applying those principles, it would appear that, unless there is an order for partition, the plaintiff will not be able to exercise his basic right to free himself from the shackles of co-ownership. The land will have to remain vacant and that will not be in anyone’s interest.

12.It has to be said that the proposed partition will result in two pieces of land of approximately equal size.  There are no problems of access and no question of an easement for rights of way to be granted.

13.An order for sale is not a result that achieves the plaintiff’s objective of having a house built, as the proceeds would not enable him to acquire and build a house of the kind that he would be able to if there were a partition order.

14.I am satisfied in this case that a partition order should be made, subject to just one matter.  The Director of Lands is required to be served with notice of the application and accompanying papers, as stipulated in the rules of the ordinance.  He was served only on 19 October.  Obviously, he has not had time to even advise the court or the parties of his stance in the matter. 

15.In order not to prejudice any potential objection that the Director of Lands may have to the partition of this land, I will make an order in terms, but the order is not to take effect if, within 28 days of    the date of the order, there is any objection from the Director.  In such an eventuality, the matter should be restored for further directions.

Mr Peter Yu, instructed by Dickman L T Chan & Co, for the plaintiff

The defendant was not represented and did not appear