Chan Sing Fu v. Chan Hoi Shing and Others

HCMP 1713/2017

[2018] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1713 OF 2017

______________

______________

______________

______________

D E C I S I O N

______________

The application

1.On 4 August 2017, the plaintiff took out the present Originating Summons (the “OS”) against the three named defendants.  The plaintiff and the defendants are natural brothers (collectively “Brothers”).  The OS is supported by the plaintiff’s affirmation dated 10 July 2017.  The relief sought is an order for sale pursuant to section 6 of the Partition Ordinance, Cap 352, together with directions on the application of the proceeds. 

The facts

2.The landed property which the plaintiff is seeking to sell is Shop No 2 on the Ground Floor, Wing Wah Building, Nos 49 – 53 Fuk WingStreet, Kowloon (the “Property”).  It was acquired by the Brothers’ parentsin 1986.  In 1998 it was transferred to the Brothers by way of a gift.  It has since that time been held by them as tenants-in-common. 

3.The Property had been put to different uses after acquisition. However, since about 2008, it has been left vacant, and the Brothers could not reach agreement as to how to deal with it.  In the meantime, the plaintiff has developed certain illnesses.  I do not need to go into details of his illnesses beyond saying that documentary proof has been produced in that regard.  The plaintiff can no longer work.  He needs financial support for his medical and living expenses.  He has made requests to his brothers for sale of the Property so that he could use his share of the proceeds for those purposes.  Agreement however could not be reached amongst the Brothers, hence the OS.

The charging orders

4.The plaintiff in compliance with Order 28, rules 2 and 4 filed on 23 February 2018 a Notice of Appointment to Hear Originating Summons (“Notice of Appointment”).  The hearing first came before Deputy High Court Judge R Khaw SC on 11 April 2018.  During that hearing, concern was raised about four charging orders (dated 3 June 2013, 30 December 2013, 13 February 2015 and 11 May 2015, collectively the “Charging Orders”) which land search records showed the Property was subject to.  They were obtained by the Secretary for Justice.  So that the matter could be clarified and the stance of the Secretary for Justice ascertained, the learned Deputy Judge adjourned the hearing.

5.After that hearing, the plaintiff entered into correspondence with the Department of Justice.  The judgment debts which those Charging Orders sought to enforce were identified.  The plaintiff has since settled them.  The Charging Orders pose no further concern.

6.On 26 July 2018, the plaintiff filed a summons (the “Summons”) for an Order that the hearing of the Notice of Appointment be restored.  I grant the Order.  The plaintiff also seeks leave to file a further affirmation to place before the Court the correspondence he has had with the Department of Justice concerning the Charging Orders.  I grant the leave sought.

The OS

7.I now proceed to consider the OS.

8.I have considered the various affirmations of service that have been filed.  I am satisfied that the OS, the Notice of Appointment and the present Summons have all been validly served upon the defendants.  On 21 December 2017, the 2^nd and 3^rd defendants each filed an Acknowledgment of Service indicating that they do not intend to defend the action.  The 1^stdefendant has filed no Acknowledgment of Service.  He has in fact taken no part in the proceedings.

9.I have considered the plaintiff’s affirmation.  He states that given the size, layout and lack of sufficient toilet facilities of the Property, it is impossible and impractical to partition the Property.  In the absence of competing evidence, I accept his evidence in this regard.

10.I have considered the case of Tsang Wai Fan v Hui Siu Kwong (unreported, HCMP 1505/2014, 26 January 2016).  I have also considered the case of Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825, whereinMr Recorder Fok SC (as he then was) observed at paragraphs 18 and 19 that:

“ 18.  These passages from the cases cited above were relied upon by Mr Fung SC to support the following propositions, namely:

(a)   A co-owner has a basic right to rid himself of the shacklesof co-ownership and ask for an order for partition or sale.

(b)   When it is impracticable to make an order for partition, thecourt 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.

(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.

19.  Subject to adding the qualifications, ‘if he has no other remedy,’ before the words ‘ask for an order for partition or sale’ in proposition (1), and ‘or that it will result in very great hardshipto one co-owner’ to the end of proposition (2), I am satisfied thatthese propositions fairly and accurate state the law as regards thecourt’s jurisdiction when faced with an application for partition orsale under the Ordinance and I shall proceed in this judgment to apply those propositions in resolving the plaintiffs’ application.”

11.In the present case, and as I have observed above, it is impracticable to make an order for partition.  The plaintiff has explained why the order for sale is sought.  The 1^st defendant has filed no evidence.  The 2^nd and 3^rddefendants do not intend to defend the action.  They have taken no step in any attempt to show that the order for sale sought will not be beneficial to all the co-owners, or that very great hardship to any co-owner will result.  Any concern which the Charging Orders had given rise to has been addressed.  In the circumstances, I am of the view that the plaintiff has the right to ask for the order for sale.

Disposal

12.For the reasons set out above, I grant the relief and directions sought by way of the OS.

13.I have heard Mr Poon, counsel for the plaintiff, who informs me that his client does not insist on having costs both in respect of the OS and the Summons.  Given the absence of any opposition from the defendants and the relationship between the parties, I am of the view that that is a sensible and fair stance.  I make no order as to costs both in respect of the OS and the Summons.

Mr Billy Poon, instructed by Raymond Chan, Kenneth Yuen & Co, for the plaintiff

The 1^st to 3^rd defendants were not represented and did not appear