Ho Francis Siu Ming v. The Personal Representative(S) of the Estate of Lai Wun, Deceased

HCMP 1100/2019

[2020] HKCFI 2505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1100 OF 2019

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BETWEEN

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J U D G M E N T

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1.By the Originating Summons herein (“the OS”), the plaintiff (“P”) seeks an order that the property known as All Those 30/1,675^th parts or shares of and in The Remaining Portion of Inland Lot No. 3799, The Remaining Portion of Inland Lot No. 3800 and The Remaining Portion of Inland Lot No. 1417 (Flat A on the 15^th Floor of Kingearn Building, Nos. 24-26 Aberdeen Street, Hong Kong) (“the Property”) co-owned by P and the defendant (“D”) be sold, and both P and D be allowed to purchase or bid at the sale. Having read the papers, I am satisfied that the OS can be determined on the papers without an oral hearing. P has provided written submissions dated 11 September 2020 to the court, and I have considered the same.

2.The background facts are as follows:

(1)  By an assignment dated 16 October 1985, the Property was assignment to Mr Tam Kam Ming Allen (“Mr Tam”) and Madam Lai Wun (“Madam Lai”) as joint tenants.

(2)  By a notice of severance of joint tenancy dated 31 December 2009 served by Mr Tam on Madam Lai, the joint tenancy was severed and as from that date onwards, Mr Tam and Madam Lai was holding the Property as tenants in common in equal shares.

(3)  By a second legal charge dated 31 December 2009, Mr Tam mortgaged his interest in the Property to a mortgagee.

(4)  By a sale and purchase agreement dated 24 June 2014, the mortgagee sold Mr Tam’s interest in the Property to P.  Subsequently, by an assignment dated 29 August 2014, the mortgagee assigned Mr Tam’s interest in the Property to P.

(5)  Madam Lai passed away on 30 January 2017 in Hong Kong.  P’s solicitors have conducted a probate search in the High Court Probate Registry, and no application for letters of representation in respect of the estate of Madam Lai, deceased, is found.  P’s solicitors have also conducted a will search through the Law Society of Hong Kong in respect of Madam Lai, deceased. P’s solicitors have not received any response from any solicitors or any persons in this connection.

(6)  By an order dated 17 March 2020, the Official Solicitor is appointed to represent the estate of Madam Lai, deceased, for the limited purpose of accepting service of the OS.  Pursuant to the said order, on 23 April 2020, P’s solicitors served the OS on the Official Solicitor.

(7)  By an order dated 9 June 2020, it is directed that these proceedings be proceeded in the absence of any person representing the estate of Madam Lai, deceased, pursuant to Order 15 rule 15.

3.P intends to dispose of the Property by either:

(1)  purchasing the another half share of the Property from D;

(2)  selling his half share to D; or

(3)  selling the Property in the market and dividing the sale proceedings between P and D in equal shares.

4.The application here is made pursuant to ss.2 and 6 of the Partition Ordinance (“PO”).  As prescribed by s.3(2) of the PO, documents relating to these proceedings have to be served on the Director of Lands. Having considered the evidence as to service adduced by P, I am satisfied that P has duly served the documents on the Director of Lands.

5.S.2 of the PO provides:

“Subject to this Ordinance, where any property in land is held by 2 or more persons, whether as joint tenants or as tenants in common, the Court may—

(a) make an order under section 4 for a partition of the property;

(b) make an order under section 6 for a sale of the property; or

(c) refuse to make any order.”

6.S.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.”

7.The principles concerning an application under the PO have been succinctly summarized by Recorder Fok SC (as he then was) in Wong Chun Kei and Poon Vai Ching [2007] 1 HKLRD 825, [18] and [19], which are as follows:

(1)  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.

(2)  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.

(3)  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.

8.In this case, the Property is a unit in a multi-storey building with a saleable area of about 293 square feet. Given the nature of the Property, I am of the view that it is impracticable to make an order for partition.  See Liu Chung Hang & Ors v Liu Chung Leung Alfred (HCMP 1255/2007, 19 December 2007), [9]; Chan William Lai Yee & Ors v Chan Yau Yuen Fun Therese & Anr (HCMP 1203/2011, 8 March 2012), [12]; and Ng Ming Joe Joseph, Executor of the Estate of late Ng Kar Yuen Peter (Deceased) v The Personal Representatives of Late Lau Yue Heng (Deceased) (DCMP 2839/2015, 7 February 2017), [29].  There is nothing from D showing that an order for sale would not be beneficial to all the co-owners, or that it will result in very great hardship to one co-owner.  In these circumstances, I am satisfied that an order for sale should be made. 

9.I make an order in terms of [1] to [9] of the draft order annexed to P’s written submissions dated 11 September 2020.

10.Costs should follow the event.  I order that costs of these proceedings be to P and be summarily assessed.  There be leave to P to provide a bill of costs to the court within 7 days.

Written submissions by Li, Kwok & Law, for the plaintiff