Leung Siu Man and Others v. Leung Yiu Tai
Read the full judgment text of HCA 713/2014 on BabelCite. This High Court CFI judgment was delivered on 16 August 2019.
1. This is one of those cases in which all the parties are siblings. The 3 rd Plaintiff, born in 1958, is the eldest of the 5. The 2 nd Plaintiff, the 1 st Plaintiff, the Defendant and the 4 th Plaintiff were born in 1959, 1961, 1963 and 1965 respectively. Their father passed away when the parties were very young [1] and they were brought up by their mother (“ Mother ”) single‑handedly. Mother is now 86 years old. It is unfortunate that Mother, who testified for the Plaintiffs, was in effec
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HCA 713/2014 [2019] HKCFI 1971 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 713 OF 2014 ________________________
________________________ Before: Hon Ng J in Court Dates of Hearing: 28 - 30 November, 3 and 14 December 2018 Date of Judgment: 16 August 2019 __________________ J U D G M E N T __________________ I. Introduction 1.This is one of those cases in which all the parties are siblings. The 3rd Plaintiff, born in 1958, is the eldest of the 5. The 2nd Plaintiff, the 1st Plaintiff, the Defendant and the 4th Plaintiff were born in 1959, 1961, 1963 and 1965 respectively. Their father passed away when the parties were very young[1] and they were brought up by their mother (“Mother”) single‑handedly. Mother is now 86 years old. It is unfortunate that Mother, who testified for the Plaintiffs, was in effect being accused by the Defendant of lying and being biased towards the Plaintiffs. 2.In a nutshell, the present action, commenced on 16 April 2014, concerns the parties’ beneficial interests in a residential property situated at Flat B, 9/F, Block D, Sai Kung Town Centre, Sai Kung, New Territories (“Property”). According to the land search record, the sale and purchase agreement was entered into on 30 September 1986 between the 1st Plaintiff, the 2nd Plaintiff and the Defendant as purchasers and the developer. The purchase price was agreed at HK$429,970 (“Purchase Price”). On 24 April 1987, the Property was assigned to and registered in the name of the 1st Plaintiff, the 2nd Plaintiff, and the Defendant as joint tenants. The purchase was financed by a loan of HK$343,000 (“Loan”) from Kwangtung Provincial Bank (“Bank”) and secured by a legal charge dated 24 April 1987 in favour of the Bank. The Loan was fully repaid in May 1999 and the legal charge was subsequently discharged. 3.Although the Purchase Price was stated to be HK$429,970, the amount actually paid towards the purchase of the Property was slightly more. This is because after having paid the 20% deposit and down payment, the 1st Plaintiff had, between October 1986 and March 1987, also paid 6 monthly instalments of HK$4,357.35 to the developer at its request in the total sum of HK$26,144.10. Most of the sum paid was allocated by the developer towards the payment of so‑called “interest”, the basis of which was actually unclear, with less than HK$1,000 counted towards payment of the Purchase Price. Hence, by the time of the assignment of the Property in April 1987, the amount of the Loan required for completion was still almost 80% of the purchase price. 4.In the Re‑Amended Statement of Claim (“RASOC”), the Plaintiffs claim against the Defendant for the following reliefs:
5.On the other hand, the Defendant, in his Re‑Amended Defence and Counterclaim (“RADNC”), disputes the Plaintiffs’ claims and counterclaims for a declaration that the 1st Plaintiff, the 2nd Plaintiff and him are the only “true” owners of the Property and jointly hold it in equal shares. The Defendant, however, does not oppose the sale of the Property but claims 1/3 of its sale proceeds. II. The Parties’ respective cases The Plaintiffs’ case 6.The Plaintiffs’ case is that prior to the purchase of the Property, Mother and the 5 siblings lived together in a very small flat within a public housing estate in Tsz Wan Shan. In around August 1986, the 1st Plaintiff saw an advertisement in the newspapers that units in Sai Kung Town Centre were up for sale. After viewing the units for sale, the 1st Plaintiff became interested in buying one but could not afford it on her own. At that time, the 1st Plaintiff was 25 and earned about HK$4,000 a month as a clothing merchandiser. She therefore discussed the matter with her other siblings. After some detailed discussions, the 5 of them decided to purchase the Property together. 7.It is the Plaintiffs’ case that in September 1986, the 5 siblings formed the express common intention (“Common Intention”) that they would acquire the Property as beneficial owners in accordance with their oral agreement (“1986 Agreement”), the material terms of which were:
8.At that time, the 5 siblings were in their 20s and did not earn a great deal. The agreed financial contribution to the mortgage loan was arrived at after taking into account of their age, occupation and earnings as follows:
9.Since the 1stto the 3rd Plaintiffs were older and earned more than the other two, it was agreed that they would bear a greater proportion of financial contributions towards the purchase:
10.With regard to the Loan, the monthly instalments were around HK$4,000. It is not in dispute that the Plaintiffs and the Defendant had agreed to leave the mortgage repayments for Mother to deal with. Out of convenience, from May 1987 to May 1999, Mother would each month collect HK$4,000 from the Plaintiffs and the Defendant as follows and paid the same into the joint account of the 1st and 2nd Plaintiffs (“Joint Account”) for the purpose of making the monthly repayment to the Bank:
11.On the Plaintiffs’ calculation, the total financial contributions by the 5 siblings towards the purchase of the Property were as follows:
12.As noted earlier, the Plaintiffs claim against the Defendant for a declaration that the 1st Plaintiff, the 2nd Plaintiff and the Defendant hold the Property on trust for the 5 of them in the above percentages. 13.It is further the Plaintiffs’ case that in reliance on the Common Intention and the 1986 Agreement, the Plaintiffs, but not the Defendant, had paid for inter alia the following expenses over the years:
14.Further, since the acquisition of the Property, all the siblings except the 3rd Plaintiff have resided in the Property for the following periods:
15.After the Defendant and his family had moved out of the Property in August 2002, he stopped paying management fees, government rent and rates and electricity bills but continued to store his belongings including inter alia furniture, bed, washing machine, and kitchen appliances in it. 16.Since 2008, the Plaintiffs have intended to sell the Property and raised this with the Defendant who all along did not agree to the proposal. In addition, the 1st, 2nd and 4th Plaintiffs also discussed among themselves about moving back to live in the Property. However, owing to the Defendant’s refusal to remove his belongings, the 1st, 2nd and 4th Plaintiffs could not renovate the Property for self‑use. Nor can the Plaintiffs put it up for sale. As a result, the Property was left at its then state in August 2002 until the trial. The relationship between the Plaintiffs and the Defendant soured. 17.By a letter dated 16 August 2013 to the Defendant (“2013 Letter”), the Plaintiffs, through their solicitors, pointed out that the 5 siblings had agreed to purchase the Property in around September 1986 and that they would share their beneficial interests in the Property in accordance with each of their financial contribution towards the purchase. The letter also pointed out that the Defendant had only contributed around 10% and asked him to agree to the sale of the Property and share the sale proceeds according to each sibling’s contribution. The Defendant did not raise any objection to the contents of the 2013 Letter, particularly his financial contribution towards the purchase was only around 10%. In fact, the Defendant did not reply at all to the 2013 Letter. 18.The Plaintiffs therefore commenced the present proceedings by Writ on 16 April 2014. 19.The Plaintiffs’ primary relief is for a declaration that the 1st Plaintiff, the 2nd Plaintiff and the Defendant hold the Property on trust in favour of the 5 siblings and that each of their beneficial interests in the Property is as set out in paragraph 4(1) above. 20.Concerning the claim for occupation rent in the sum of HK$2,181,600, this was based on the rental estimate of the Property from January 1993 to December 2016. The Plaintiffs’ factual case is that the Defendant and his family had solely occupied the Property between March 1993 and August 2002. Further, after August 2002, the Defendant had continued to occupy the Property, or at least part of it, by storing his belongings there and threatened to hold responsible whoever removed them without his consent, as evidenced in a letter dated 16 July 2014 from the Defendant to the 1st and 2nd Plaintiffs. The reason why the Plaintiffs’ claim stops at December 2016 was not because the Defendant had removed those belongings after December 2016 but, according to Mr Kwong, simply because the Plaintiffs’ expert has provided valuation evidence up to that year only. The Defendant’s case 21.As succinctly summarized in Ms Gwilt’s Opening Submissions at [13]‑[14] and Closing submissions at [18], the Defendant’s case is as follows:
22.The Defendant’s case is said to be consistent with the objective evidence ie all documentation in relation to the purchase of the Property was in the names of the 1st Plaintiff, 2nd Plaintiff and the Defendant only. 23.Concerning the Plaintiffs’ claim for occupation rent, the Defendant’s case, summarized in Ms Gwilt’s Opening Submissions at [18] and her Closing Submissions at [107] is this:
24.Although the Defendant’s original case was as stated at para 23(7) above, whilst in the witness box and confronted with photos taken inside the Property, the Defendant admitted that his belongings were still there even as at the trial — apparently the Defendant considered he had the right to do so by reason of his share in the Property. III. Deliberation Preliminary 25.Given that the Plaintiffs and the Defendant have both pleaded their version of an actual common intention and an express agreement on their share of beneficial interests in the Property, it seems to this court the focus of the trial should be to ascertain what the actual intention and express agreement of the parties, if any, was. This was agreed between counsel on both sides at the trial. In other words, this court’s primary task is to make a finding as to whether a common intention constructive trust has been made out. There is little room for the operation of purchase money resulting trust, or at least it is unnecessary to resort to purchase money resulting trust, unless this court rejects both parties’ cases on their alleged common intention and express agreement. 26.In Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at [1.3], Lam V‑P observed that:
27.Similarly, in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9[3] at [44]‑[45], G Lam J observed:
28.In this court’s view, the principal issues are:
Issue 1 29.At trial, the Plaintiffs called 5 witnesses viz the 1st Plaintiff, Mother, the 2nd, 3rd and the 4th Plaintiffs, in that order. The Defendant called 1 witness viz himself. 30.Since the Common Intention, the 1986 Agreement and the Tripartite Agreement were not recorded or evidenced in writing, the credibility of the witnesses becomes of vital importance to the adjudication of this case. This court has carefully considered the testimony, as well as the demeanour, of all witnesses and assessed it against such of the documentary evidence as there is and the known and undisputed surrounding circumstances of this case. This court has also considered the inherent probabilities or otherwise of the parties’ respective contentions, and assessed the witnesses’ credibility accordingly. 31.This court finds the 1st Plaintiff, the Plaintiffs’ main witness, a truthful and excellent witness. She gave her evidence clearly and calmly and her response to questions was always direct. Her credibility has withstood the test of cross‑examination. Further, there is only a very minor difference between her claim to the Property ie 35.71% and what the Defendant contends is her entitlement ie 1/3 or 33.33%. The inherent probabilities are such that it is unlikely that she would be prepared to incur the legal costs of commencing the present action, go through the stress and bear the financial risk of litigation and conspire with the other Plaintiffs to lie on oath to this court. 32.This court finds Mother a truthful witness. In view of her age and the fact that she was cross‑examined on events which took place decades ago, Mother’s recollection of events is understandably imperfect. But her testimony on the 2 most important aspects of this case viz the fact that all the 5 siblings had agreed to purchase the Property together and the amount she collected each month, over a period of 12 years, from each of the 5 siblings for the purpose of mortgage repayments, was firm and unwavering. Importantly, Mother is not personally interested in the outcome of this case and does not have to testify for anyone if she does not wish to. It is inherently improbable that she would conspire with the Plaintiffs to lie on oath against her own son. 33.This court finds the 2nd, 3rd and 4th Plaintiffs truthful witnesses. They gave their evidence calmly and their answers to Ms Gwilt’s questions were mostly direct, although the extent of their recollection of the details differed. Their credibility has not been shaken in cross‑examination. 34.As far as the 2nd Plaintiff is concerned, if it is inherently improbable that the 1st Plaintiff would incur the legal costs of commencing the present action, go through the stress and bear the risk of litigation and conspire with the other Plaintiffs to lie on oath to this court, it is even more improbable in her case. This is because she has adopted a position which is against her own personal interest — the 2nd Plaintiff is only claiming 22.39% of the beneficial interest in the Property whereas on the Defendant’s case, she would be entitled to 1/3. Since the 2nd Plaintiff’s evidence is tantamount to an admission against her own interest, it should be given considerable weight: Wong Tak Yue v Kung Kwok Wai (No 2) (1997‑98) 1 HKCFAR 55, at 69C (Li CJ); Cheung Lai Mui v Cheung Wai Shing & Ors unrep, HCA 1652 of 2012, 10 April 2017, Wilson Chan J at [91]. 35.As for the Defendant himself, this court does not find him a reliable witness. Detailed reasons can be found later in this Judgment when this court examines his case of Tripartite Agreement. 36.All the Plaintiffs and Mother have come up to proof and their testimonies corroborate each other in relation to the terms of the Common Intention and the 1986 Agreement as well as the Plaintiffs’ respective financial contribution towards the acquisition of the Property. Further, the reasons given by the Plaintiffs as to why their contributions differed are entirely sensible and reasonable.
37.Given that the 5 siblings agreed to purchase the Property together but made different financial contributions towards the purchase, it seems to this court wholly natural and reasonable for them to agree to have different beneficial interests in the Property according to their respective contributions. 38.As submitted by Mr Kwong, since the acquisition of the Property, the Plaintiffs' conduct has been consistent with the Common Intention and the 1986 Agreement. 39.First, the 1st, 2nd and 4th Plaintiffs, as well as the Defendant, had resided in the Property for various periods without paying rent while the 3rd Plaintiff had indicated from the outset that he would not live in it. The reason given by the 3rd Plaintiff was that he preferred to stay in Tze Wan Shan with Mother since travelling to and from Sai Kung was inconvenient to him. 40.The fact that the 3rd Plaintiff was prepared to contribute to the mortgage repayments without ever living in the Property is a fairly strong indication in support of the Common Intention and the 1986 Agreement — if he did not live in the Property and was not going to have a share of the beneficial interests in the Property, why would he have contributed towards the mortgage repayments, as corroborated by Mother’s and all the other Plaintiffs’ testimony? To a lesser degree, the same can be said of the 4th Plaintiff. She had only lived in the Property for about 3 years but she had continuously contributed to the mortgage repayments even for periods when she did not reside in it. 41.Second, in around 1987 and 1988, the Plaintiffs have contributed to renovation expenses and electrical appliance expenses totaling over HK$100,000. It is not in dispute that the Defendant has not contributed to such expenses. 42.Third, the Defendant moved out of the Property in around August 2002. Since then, he stopped paying for (i) management fees and related contributions, (ii) government rent and rates, and (iii) electricity bills in respect of the Property. In this regard, this court accepts the Plaintiffs’ evidence and finds that at least a substantial portion of the aforesaid expenses were paid for by the Plaintiffs, albeit the Defendant claims he had paid for a few months’ management fees in 2015 and 2016 (which is disputed by the Plaintiffs). Even if the Defendant’s claim were true, the bulk of the said expenses were paid for by the Plaintiffs. Importantly, there is no plausible explanation for the 3rd Plaintiff to contribute to these expenses when he had never resided in the Property unless he was also a beneficial owner of it. Again to a lesser degree, the same can be said of the 4th Plaintiff. 43.Fourth, on 16 August 2013, the Plaintiffs issued the 2013 Letter to the Defendant in which they made clear that the 5 siblings had agreed that their beneficial interests in the Property should be shared according to their financial contributions towards the purchase, and that the Defendant has only contributed about 10%. The Defendant did not raise any objection to the contents of the letter — he simply did not respond to it. If the Defendant indeed had made 1/3 financial contribution to the purchase of the Property in accordance with the Tripartite Agreement, his inaction would have been inexplicable. When asked about this in cross‑examination, the Defendant’s answer was to the effect that why he should have to respond to the letter since the title documents already showed he had 1/3 share of the Property. In this court’s view, that answer is at best a complete non sequitur. 44.By contrast, this court finds the Defendant’s case of a Tripartite Agreement inherently improbable. This court has already noted above the Defendant’s failure to respond to the 2013 Letter and to assert the existence of the Tripartite Agreement and his 1/3 financial contribution to the purchase of the Property. Even more incredible is the fact that the alleged Tripartite Agreement was not pleaded in the original Defence filed on 9 June 2014. Rather, it was pleaded only by way of an amendment in November 2015, 1½ years after the commencement of the present action and more than 2 years after the Defendant had received the 2013 Letter. Mr Kwong submits this alleged Tripartite Agreement is a mere afterthought. There is force in Mr Kwong’s submission. 45.Importantly, this court does not find the Defendant a reliable or truthful witness. This court will give a few illustrations to explain why. 46.First, the Defendant was asked why the alleged Tripartite Agreement was not pleaded in the original Defence. His answer was that he had already told his lawyer about it and he did not know why the lawyer failed to put it down in the original Defence. This is very hard to believe since the Tripartite Agreement was an important, if not the most important, element of his defence to the Plaintiffs’ claim. If he had indeed told his lawyer about the Tripartite Agreement, there is no plausible explanation for the lawyer to have omitted it from the Defence. And even if the lawyer, through incompetence or otherwise, had failed to plead it in the Defence, the Defendant would have noticed it by the time he was asked to sign the statement of truth attached to the Defence and would have instructed his lawyer to rectify the omission. 47.Second, the Defendant stated in paragraph 11 of his witness statement filed on 30 September 2016 to the effect that the 20% deposit was paid by the 1st and 2nd Plaintiffs first. He then made repayment of 1/3 of the 20% deposit, 1/3 of the legal fees and 1/3 of the first 6 monthly payments ie from October 1986 to March 1987 totaling HK$40,535.50 in cash to the 1st Plaintiff at about the end of 1987. When asked in cross‑examination by Mr Kwong how he could remember the very specific sum of HK$40,535.50, he claimed to have paid in cash to the 1st Plaintiff in late 1987, the Defendant insisted he had “quite a recollection in my memory regarding this figure” since it was the first time he bought a property and it was a big event. Given that the Defendant no longer keeps the passbook or statement of his savings account from which the HK$40,535.50 was allegedly drawn out, it is disingenuous for the Defendant to claim to be able to remember such a specific figure so long after the event. More probably than not, the Defendant was simply making that up when he prepared his witness statement to embellish his case of Tripartite Agreement and his alleged 1/3 contribution towards the 20% deposit, legal fees and the first 6 monthly payments. 48.Third, at paragraph 12 of his witness statement filed on 30 September 2016, the Defendant appeared to be able to recollect very specifically how much he gave to Mother each month from April 1987 to December 1999 ie HK$1,400, HK$2,000 and HK$3,000 respectively. The sums included his supposed 1/3 contribution to the mortgage repayments while the surplus was said to be for Mother’s use. Again, the Defendant was not able to adduce the passbook or statement of his savings account in support of the said cash payments but he again insisted he could remember it clearly. Importantly, the Defendant was asked about it in cross‑examination by Mr Kwong who contradicted him by referring to his pleaded case at paragraph 6 of the RADNC. In that paragraph, the Defendant stated that “As to the particulars of the alleged mortgage instalments, the Defendant could not recall the same”. 49.Fourth, when the Defendant was asked about the 1st and 2nd Plaintiffs’ relationship with the 3rd and 4th Plaintiffs back in 1986, his answer was that he did not pay attention to it. This is rather hard to believe given that the 5 siblings had grown up together in a flat of merely 200 square feet for more than 20 years by 1986. Mr Kwong, in his Closing Submissions, suggested that the Defendant refused to confirm the good relationship amongst the Plaintiffs since it did not sit well with the alleged Tripartite Agreement which excluded the 3rd and 4th Plaintiffs. Again, it seems to this court there is force in that submission. 50.For all the above reasons, this court has no difficulty accepting Mother’s and the Plaintiffs’ testimony and rejecting the Defendant’s. 51.This court also has no difficulty finding as a fact that the Common Intention and 1986 Agreement did exist and the material terms were as claimed by the Plaintiffs. It naturally follows that the Defendant’s testimony and his case that he is entitled to 1/3 of the beneficial interests in the Property pursuant to the Tripartite Agreement must be rejected. 52.This court further finds as a fact that, in accordance with and in reliance of the Common Intention and the 1986 Agreement:
Issue 2 53.This court’s determination of Issue 2 necessarily follows from the findings set out above. 54.In Primecredit Ltd v Yeung Chun Pang Barry at [2.3]‑[2.4], Cheung JA explained how the 2 situations in which common intention constructive trust might arise:
55.In Liu Wai Keung v Liu Wai Man at [46]‑[50], G Lam J further elaborated on the elements that a party must prove in order to establish a constructive trust in his favour:
56.This court has found as a fact that the Common Intention and 1986 Agreement did exist and the material terms were as claimed by the Plaintiffs. This court has also found as a fact that the parties’ direct contributions towards the purchase of the Property in terms of dollars and cents as well as percentages were as set out in paragraph 11 above and they had contributed to the expenses in connection with the Property as set out in paragraph 13 above. 57.Since the other 2 elements for establishing a common intention constructive trust ie detrimental reliance and unconscionability on the part of the Defendant are self‑evident from this court’s findings, whether or not the first situation or the second situation as explained by Cheung JA in Primecredit Ltd v Yeung Chun Pang Barry applies, a common intention constructive trust among the Plaintiffs and the Defendant has arisen over the Property and this court will so find. 58.As to the quantification of the parties’ beneficial interests in the Property, where the defined shares have been agreed by the parties, the court will give effect to that agreement: Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 at [44]. 59.In the present case, the parties have agreed a certain formula for the calculation of their respective beneficial interests in the Property and as such this court would give effect to that agreement. Taking into account their respective contributions towards the purchase of the Property, this court hereby quantifies that each of the Plaintiffs and the Defendant has beneficial interests in the Property in the following proportion:
Issue 3 60.This court shall first remind itself of the legal principles which should be uncontroversial. 61.First, the common law position is that, in the absence of agreement, where land is held by several co‑owners, they are all, as between themselves, entitled to possession of the whole. For this reason, there is no remedy in trespass against an occupying co‑owner unless he has ousted or excluded the other. There is no exclusion if one merely stays away, allowing the other to solely occupy the land. Where one ousts the other, he will be liable for occupation rent: Snell’s Equity 33rd Ed at para 20‑081. 62.Second, whereas the common law position is as aforesaid, the approach of the Court of Chancery is more flexible. The position adopted in modern cases is that occupation rent may be charged against an occupying co‑owner where this is necessary to do broad justice or equity as between co‑owners: Snell’s Equity at para 20‑085; Re Byford (deceased) [2004] 1 P & CR 12 159 at [40]. 63.Third, a Court of Equity will order an inquiry and payment of occupation rent, not only in the case where the co‑owner in occupation has ousted the other, but in any other case in which it is necessary in order to do equity between the parties that occupation rent should be paid. The fact that there has not been an ouster or forceful exclusion therefore is far from conclusive: In Re Pavlou (A Bankrupt) [1993] 1 WLR 1046, 1050D‑F, per Millett J (as he then was). 64.Fourth, whether occupational rent would be payable on the facts of each case is “ultimately a matter of discretion”: French v Barcham & Anr [2009] 1 WLR 1124 at [43]. 65.The following are facts as admitted by the parties and/or as found by this court which are pertinent to the question of occupation rent.
66.At paragraph 60 of his Closing Submissions, Mr Kwong submits that an order for the Defendant to pay occupation rent to the Plaintiffs would be a fair order which would do broad justice or equity between the parties. Mr Kwong further proposes 3 different commencement dates for the calculation of occupation rent as follows:
67.During his oral closing submissions, Mr Kwong proposed to this court that the second commencement date should run from June 2008 whereas the last one should be December 2011. 68.As far as the ending date is concerned, the only available and undisputed expert evidence on the estimated rental value of the Property comes from the Plaintiffs and ends in December 2016. Hence Mr Kwong invites this court to adopt December 2016 as the ending date. 69.In this court’s view, given that the 1st and 2nd Plaintiffs had left behind some of their belongings in the Property until 2011, they cannot be regarded as having been ousted or excluded from 1993 or 2008, even though they did not reside in it. Nor can the Defendant be regarded as the sole occupant of the Property until then. However, given the fact that the Plaintiffs have repeatedly requested the Defendant to remove his belongings from the Property from 2008 and given his unexplained (save perhaps out of animosity towards the Plaintiffs, as the latter suggest) and unjustified refusal to do so, this court agrees that an order for the Defendant to pay occupation rent to the Plaintiffs would be a fair one. 70.Doing the best this court can to do broad justice or equity between the parties and in the exercise of its discretion, this court considers it appropriate to order the Defendant to pay occupation rent to the Plaintiffs from December 2011 to December 2016. On the evidence and on Mr Kwong’s revised calculation submitted to court during his oral closing submissions, the total amount of occupation rent is HK$639,800, and this court shall so order. Order for sale of the Property 71.In the RASOC, the Plaintiffs claim against the Defendant for inter alia an order for sale of the Property pursuant to Section 6 of the Partition Ordinance, Cap 352. The Defendant is agreeable to an order for sale but the parties are unable to fully agree on the terms. The 2 major areas of contention are (i) the appropriate reserved price and (ii) which side’s solicitors should have the conduct of the sale. 72.This court has no doubt that the Plaintiffs’ solicitors shall have the conduct of the sale since the Plaintiffs have almost 90% of the beneficial interests in the Property. 73.However, in the absence of valuation evidence, this court has indicated to the parties at the trial that it is inappropriate to make a determination on the reserved price. In any event, since the property market is not stagnant, the parties should be given an opportunity to agree on a reserved price for the sale of the Property, failing which they should separately put forward an updated reserved price, supported by valuation evidence, and argue the matter, as well as other consequential directions, if any, before this court. IV. Disposition, costs order nisi and consequential directions 74.There shall be judgment in favour of the Plaintiffs against the Defendant as sought in the RASOC as follows:
75.The Defendant’s Counterclaim is hereby dismissed. 76.There shall be an order nisi that costs of the Action, including all costs reserved, if any, be to the Plaintiffs, to be taxed if not agreed, and paid by the Defendant forthwith, with certificate for two counsel. 77.In the absence of agreement between the parties on the reserved price and other consequential directions, if any, for the sale of the Property within 14 days, they shall come back to this court for argument.
Mr Alan Kwong and Mr Martin Kok, instructed by King & Company, for the Plaintiffs Ms Angela Gwilt and Ms Melinda Chiang, instructed by Huen & Partners, for the Defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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