Lam Man Cheung v. Lam Man Yin and Another

HCMP 375/2021 and HCMP 739/2021
(Heard together)

[2022] HKCFI 866

HCMP 375/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 375 OF 2021

______________

______________

______________

HCMP 739/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 739 OF 2021

______________

(Heard together)

______________

Before:  Hon K Yeung J in Court (Paper disposal)

Dates of Written submissions by the Plaintiff in HCMP 375/2021 and 1^st and 2^nd Defendants in HCMP 739/2021: 3, 17 January and 14 February 2022

Dates of Written Submissions by the Defendants in HCMP 375/2021 and the 1^st and 2^nd Plaintiffs in HCMP 739/2021:  10 January 2022 and 14 February 2022

Date of Decision:  28 March 2022

____________________

JUDGMENT

____________________

The 2 Originating Summonses

1.There are 2 Originating Summonses (“OS/375” and “OS/739”) before me.  During a 9:30 hearing on 4 November 2021, I directed that they be considered together and be disposed of on the papers.  I gave parties until 3 January 2022 to file the first round of submissions.  That was to accommodate parties’ expressed intention of attempting mediation.  During that hearing, I urged parties to come to terms, they being all family members, and as their differences did not appear to be big.  I expressed my wish that I would not see any submission.  In that end, their differences subsist, submissions have indeed been filed[1], and the matters now require adjudication.

2.Both Originating Summonses relate to the estate of Lam Chung (the “Estate”, and the “Deceased”), and in particular Flat D, 26/F, Block 3, Carado Garden, Nos. 20-30 (No.24), Tin Sam Street, Shatin, the New Territories (the “Flat” or “該物業” as appropriate) which forms part of it.  The main issue is whether this Court should order the executors to make an assent for the Flat to be vested, or direct that it be sold and the proceeds distributed.

The background

3.The Deceased passed away on 15 September 2017, leaving his last will dated 5^th December 2016 (the “Will”).

4.Lam Man Cheung (“MC Lam”), Lam Man Yin (“MY Lam”) and Lam Man Pang (“MP Lam”) are 3 of the Deceased’s 4 children.  They are parties to these proceedings.  MY Lam and MP Lam are MC Lam’s elder sister and elder brother.  The other one is Lam Man Tip (“MT Lam”).

5.Jiao Fang Fang (“Jiao”) is MC Lam’s wife.  They got married in 2019. 

6.The Flat was purchased under the Home Ownership Scheme managed by the Housing Authority.  No premium pursuant to the provisions of the Housing Ordinance, Cap 283 has been paid.

7.The Deceased and his family had been living in the Flat since 1990.  His wife predeceased him in 2005.  MP Lam and the MT Lam moved out in 1995 and 2004 respectively.  At the time of the Deceased’s death, only the Deceased, MY Lam and MC Lam were living in the Flat.  According to MY Lam, she moved out in mid-December 2017 after the Deceased’ death.  According to MC Lam, he moved out in July 2018, renovated the Flat in December 2019, and moved back in together with Jiao in July 2020. 

8.MY Lam and MP Lam are appointed under the Will as the executors and trustees (collectively the “Executors” as appropriate).

9.By Clause 3 of the Will, the Deceased divides all interests in the Flat into 100 shares, and gives and devises to respectively MY Lam and MC Lam each 60 and 40 of such shares.  I will set out its full terms later when I consider its proper construction.

10.On 8 November 2017, probate with the Will annexed was granted to MY Lam and MP Lam.

11.Neither the Will nor the grant is under challenge.

12.Save the Flat, the Estate has been administered in accordance with the Will[2].

13.Differences have however developed between the parties as to:

(a)  whether the Executors should execute an assent so as to vest to MC Lam 40% interest in the Flat, which MC Lam insists (and for which he as the plaintiff has started OS/375 against MY Lam and MP Lam in their capacity as the Executors); or

(b)  whether the Flat should be sold and the proceeds distributed, which the Executors and MY Lam in her personal capacity as one of the beneficiaries insist (and for which they as plaintiffs and in those capacities have started OS/739 against MC Lam and Jiao).

The evidence

14.The 2 Originating Summonses arose from the same facts.  In OS/375, MC Lam has filed 2 affirmations, one in support (“MC/1”) and one in reply (“MC/2”), and MY Lam has filed one in opposition (“MY/Aff”).  In OS/739, MY Lam and MC Lam have each filed an affirmation, which primarily adopt and refer to the affirmations they have previously filed in OS/375.

15.A substantial part of the facts dealt with in the affirmations are not relevant to the resolution of the issues involved.  They will not be repeated here.

Parties’ stances

16.MC Lam’s case[3] in summary is as follows:

(a)  Upon a proper construction of the Will, Clause 3 thereof devises to him 40% interest in the Flat as a specific gift;

(b)  The legal consequence of the above construction is that the Executors should carry into effect Clause 3;

(c)  MC Lam has the right to have the Estate properly administered, and hence seek an assent to be executed in his favour;

(d)  The Executors are not justified in insisting upon a sale;

(e)  MC Lam is further willing to buy out MY Lam’s shares after his 40% interest has been assented to him.  According to §§32 and 33 of MC/2:

“32 … it is my intention to continue living in the [Flat]. If the ultimate intention of MY Lam is to rid herself of her interest in the [Flat], I can openly inform the Court that after the [Flat] is vested to MY Lam and me pursuant to the Will, I am willing to pay the premium to the Housing Authority and then purchase MY Lam’s interest in the [Flat] immediately for the market price of her share in the [Flat] taking into account 60% of the premium paid by me to the Housing Authority.

33.      Alternatively, in case only 40% of the [Flat] is vested to me and the 60% of the [Flat] remains in the [Estate], I am also willing to pay the premium to the Housing Authority and then purchase this 60% share of the [Flat] immediately from the [Estate] for the market price taking into account 60% of the premium paid by me to the Housing Authority.”

17.The case of the Executors and MY Lam in her personal capacity[4] in summary is as follows:

(a)  They rely on their powers under section 54 of the Probate and Administration Ordinance, Cap 10 (“PAO”) as interpreted by as explained by the Court of Appeal in Chun Hon Wai & Anor v Junichi Takashima [2000] 2 HKLRD 482, which they say are absolute;

(b)  Properly construed, the Will imposes neither any restriction upon the Executors against any sale of the Flat, nor any requirement that they must leave the Flat in specie;

(c)  It is untenable for MC Lam to insist that an assent must be executed in his favour so as to force the Estate or MY Lam “to be tangled with the co-ownership with MC Lam”;

(d)  In considering whether an order for sale should be granted pursuant to section 54 of PAO in resolving disputes between specific legatees, Wong Chun Kei v Poon Vai Ching [2007] 1 HKLRD (a case on application for relief under the Partition Ordinance, Cap 352 (“PO”)) would apply, and the balance in the present case tips in favour of an order for sale;

(e)  Whilst MY Lam may still apply for relief under the PO even after any assent, requiring MY Lam to “go through a two-fold avenue mandatorily” is an “affront of both substantive justice and procedural economy”, and that the genuineness of MC Lam’s open offer to buy out MY Lam’s share is “highly skeptical”.

The issues as framed by parties

18.The issue, as framed by Mr Wong, is whether the Executors do have the power to, instead of executing an assent in MC Lam’s favour, sell the Flat and distribute the proceeds to him and MY Lam according to the percentage set out in Clause 3 of the Will.  Mr Ngai’s formulation is similar, though he prefers to split it up into 2, and asks (a) whether as a matter of the administration of the Estate, MC Lam is entitled to ask the Executors to execute an assent in his favour, and (b) whether the reasons put forward by the Executors justify their refusal to do so and insistence on sale and distribution.

Whether MC Lam entitled to seek an assent

19.As explained in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 21^st ed., at §35-05:

“The rights of persons entitled under a will or intestacy are subsidiary to the rights of the executor or administrator for purposes of administration. Thus, a beneficiary cannot, in the absence of maladministration force the representative to exercise a power (such as, for instance, the power to assent subject to mortgage) [Footnote 19 – William v Holland [1965] 1 W.L.R. 739 CA per Lord Upjohn at 743-744, and see paras 50-51 and Ch 76, below]. It is only when the administration is complete that a legatee or devisee becomes a ‘beneficiary’.

It should be noted, however, that although a beneficiary does not own or have any interest in any specific asset in the hands of the executor or administrator, the residuary legatee has a composite right to have the estate properly administered and to have the residue (if any) paid to him and when the administration is complete.  That composite right is a chose in action, which is transmissible.  The rights of other legatees are apparently the same.”

20.Mr Ngai relies on §35-05 of Williams, Mortimer and Sunnucks.  But when he reproduces that paragraph at §16 of Ngai/1, the sentence which I underlined above and Footnote 19 are skipped.  William v Holland is neither referred to nor discussed.

21.The facts in Williams v Holland bear some similarity to the present ones.  At pages 743-744, Lord Upjohn observed as follows (with emphasis added):

“This is an appeal from a judgment of Judge Baxter, sitting in the West London county court, on July 29, 1964, in favour of the plaintiff's claim for possession of certain premises known as 16, Wharfedale Street, London, S.W.10, and for the payment for use and occupation of those premises, calculated at the weekly rate of £3 from June 21, 1961, until the date of possession.

This is an unhappy case, and this appeal is the latest step so far in much litigation between the beneficiaries under the will of Vidal Solomon Williams, who died on June 21, 1961, and whose will, dated September 29, 1960, was proved by the plaintiff in this action, on April 11, 1962. That will contained some obscure phraseology in relation to a specific devise of the property and a construction summons was taken out in the Chancery Division; Plowman J. decided that on the true construction of that will, in effect the house was held upon trust to pay and divide the net income of the property equally between the four defendants to that summons, and was unlimited in duration and, accordingly, carried the capital of the property or the proceeds of sale thereof in equal shares.

Now the property was given to the testator's four children. The plaintiff is one of them and the second defendant is another, the first defendant being her husband. Therefore, subject always to the claims of the executor for the purposes of administration, the second defendant, having regard to the declaration of Plowman J., is entitled in equity to one fourth part of the proceeds of sale of the property.

It appears that the defendants have been in occupation of one room in the house ever since the testator's death. They claim to remain there as persons entitled to an undivided fourth share: a strange claim after January 1, 1926. This action was begun in the county court by the plaintiff as executor, claiming, as I have said, possession and mesne profits.

[His Lordship referred to the facts stated by the plaintiff's counsel in his opening before the county court judge and continued:] It is in those circumstances that the plaintiff as executor comes to the court and says that he desires possession in order to sell the property for the purposes of administration.  To that application there can, it seems to me, be no conceivable answer at all. It is said that he ought to have exercised his powers under section 36 (10) of the Administration of Estates Act, 1925, which gives to him power, if he wishes so to do, to make assent of the property subject to a mortgage.  But it is quite plain that that is only a power, and, if the executor prefers to sell the property himself, as well he may in the circumstances that I have mentioned, no beneficiary can compel him to make any assent subject to the mortgage.  Accordingly, as I have said, it seems to me that the defence to the action for possession is entirely misconceived.  The executor as such is administering the estate.  There has been no assent, the trust for sale has not yet arisen.  He is not shown to have been mal-administering in any way.  He says he wants vacant possession of this property for the purpose of administration, and to that there is no answer. Accordingly, it seems to me quite clear that there must be an order for possession.”

22.Noting the potential relevance of Williams v Holland, I directed that further submissions on its effects be filed, which Mr Ngai and Mr Wong did on 14 February 2022 (“Ngai/3” and “Wong/2”).

23.In Ngai/3, Mr Ngai points to the facts of Williams v Holland.  He submits that the defendant concerned was not a specific legatee, that the Court of Appeal dismissed the appeal because of the need to sell the house for the purpose of administration, and that William v Holland is not authority for the proposition that maladministration is a pre-requisite for a specific legatee.

24.In dismissing the appeal, Lord Upjoin did take the facts of the case into account.  However, it does not follow that His Lordship’s observations as underlined are not of general applications.

25.In my view, the underlying basis for those observations of Lord Upjoin is the well-established principle that a beneficiary has no legal or beneficial interest in the assets of a deceased person’s estate until administration and distribution.  They are consistent with the observations made by Godfrey V-P in Chun Hon Wai & Another v Junichi Takashima [2000] 2 HKLRD 482 at 484I to 485F, by Chung J in Chung Wing On v Chung Wing Piu [2006] 3 HKC 546, by Yuen JAin Pacific Harbor Advisors Pte Ltd v Winson Federal Ltd, HCMP 1285/2015 (unrep., 21 August 2015) at [28.2] (applying Commissioner of Stamp Duties v Hugh Duncan Livingston [1965] AC 694 at 708 and 717), and by HH Judge Liu in Wong Lai Yin Harry v Wong Chi Yin, DCCJ 5071/2016 (unrep., 18 September 2017) at §§15 and 16.

26.In my view, William v Holland is good authority for the proposition as explained in William, Mortimer and Sunnucks, that “a beneficiary cannot, in the absence of maladministration force the representative to exercise a power (such as, for instance, the power to assent subject to mortgage)”.

27.At §18 of Ngai/1, Mr Ngai originally submits that:

“This right to have the [Estate] properly administered is the basis upon which MC Lam claims the Executors in [OS/375]”.

28.In my view, having such a right is not sufficient.  There has to be maladministration on the part of the Executors before he can force them to exercise an assent.

29.In Ngai/3, Mr Ngai then submits that:

(a)  William v Holland is not a case of specific legatee, but MC Lam in the present case is in so far as 40% interest in the Flat is concerned, and

(b)  in any event the Executors’ refusal to give assent for reasons not relating to the proper administration of the Estate and insistence on a sale is itself a maladministration.

30.In considering Mr Ngai’s submissions, it is important therefore to consider first whether MC Lam is a specific legatee in so far as the Flat is concerned. That turns on the proper construction of the Will.

Construction of the Will

31.The common law principles applicable to the construction of wills have been authoritatively restated by Ribeiro PJ in Tan Cheng Gay v Tan Choo Suan (2015) 18 HKCFAR 430 at Section D.1, that, inter alia:

“34. As Lord Walker NPJ points out, wills have as two important features: (i) the fact that they are unilaterally created documents and (ii) that they have an ambulatory character, that is, that they are intended to take effect from the time of the testator’s or testatrix’s death, which may be some time after the will was executed. These features must be borne in mind when construing a will.

35. Against that background, it is now established that, subject to statutory regulation, one adopts the same approach to interpreting wills as one does to interpreting contracts and other legal documents: ‘… the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context’.

36. In other words, subject to statute:

… the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions.”

32.The above common law principles have been modified by section 23B of the Wills Ordinance, Cap 30, which stipulates that:

“(1) This section applies to a will—

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.”

33.The issue is whether, upon a proper construction of the Will, Clause 3 thereof is a specific bequest of the Flat, so that the Executors are required to keep the Flat in specie and cannot sell it, so that their refusal to exercise an assent in favour of MY Lam and insistence upon sale and distribution constitute misadministration.

34.The Will is a short one, comprising only 6 numbered paragraphs:

(a)  Clause 1 declares the Deceased’s right of abode and the applicable law;

(b)  Clause 2 appoints MY Lam and MP Lam as the executors and trustees;

(c)  Clauses 1 and 2 offer little insight into the issue at hand;

(d)  Clause 3 is the important on for the purpose of these actions, which provides that:

“本人將本人於死亡時所擁有位於FLAT D ON 26/F OF BLOCK 3, CARADO GARDEN, NOS. 20-30 (NO.24) TIN SAM STREET, SHATIN NEW TERRITORIES之物業的一切權益及份額分成壹佰(100)等份，作以下分配:-

(i) 陸拾份(60)遺贈予[MY Lam] 繼承及享用; 及

(ii) 肆拾份(40)遺贈予[MC Lam] 繼承及享用。”

(e)  Under Clause 4, 4,000 shares in the HSBC Holdings are equally devised to MP Lam and MT Lam, that:

“本人將本人於死亡時所持有之恒生銀行股票戶口[5] … 內之4,000股滙豐控股有限公司股份權益遺贈予[MP Lam] 及[MT Lam] 平均繼承。”

(f)  Under Clause 5, MY Lam is devised the residuary estate, that:

“除上述第3-4段所述外，在清付了本人喪葬費用、遺產承辦費用、債務及稅款後，本人將所有本人的動產及不動產遺產，不論該遺產屬什麼性質或什麼類型，亦不論該遺產處於何地，全部遺贈予[MY Lam]獨自繼承及享用。”

(g)  Clause 6 relates to the powers and liability of the Executors, that:

“為執行本人本遺囑，本人的受託人有權將該剩餘遺產出售、催繳及變現。本人的受託人擁有絕對酌情權決定變賣本人的遺產的時間、地點、方式、代價及條件而毋需就該剩餘遺產出售、催繳及變現而引起的損失承擔個人責任。”

35.Clause 3 of the Will does not bar the Executors from selling the Flat in any way.  One reaches the same position when the entire Will is taken into account.

36.It is indeed not MC Lam’s case that Clause 3 of the Will does so[6]. His case is that by Clause 3, 40% interest in the Flat is devised to him as a specific gift.

37.The question then is whether that is so.

38.The Deceased, for the purpose of Clause 3 of the Will, “將 … [該物業] 的一切權益及份額分成壹佰(100)等份”.  He then distributes (分配) 40 shares to MC Lam “繼承及享用”.

39.Clearly, the Deceased does not say that the Flat in specie is to be distributed to MC Lam and MY Lam in the stated proportion.  He says instead that 40 shares are to be distributed to MC Lam.

40.Objectively, the devising of 40 shares upon MC Lam does not require or imply that the Flat has to be left in specie when the Executors administer the Estate. 

41.Mr Ngai relies on the words “繼承及享用”. He submits that those words are “crystal clear: the [Flat] is to be inherited and used/ enjoyed (by the 2 named beneficiaries …)”.

42.I do not agree.  The words “繼承及享用” can apply equally to any proceeds of sale of the Flat.  Further, and significantly in my view, the same words “繼承及享用” are also used in Clause 5 of the Will.  Clause 5 relates to the residuary estate, irrespective of nature or type (不論該遺產屬什麼性質或什麼類型), and hence is not confined to gift in specie.

43.Mr Ngai refers to the facts that the Flat had been the home of the Deceased family since 1990, that the Will was made in December 2016 when both MY Lam and MC Lam were residing there, and when none of them had any property at that time.

44.I have taken those facts into consideration.  They at least equally support the interpretation that the Flat may be sold so that MC Lam and MY Lam can respectively “繼承及享用” their shares of the proceeds to, for example, assist in the purchase their own properties.

45.In my view, the wording of the Will is clear.  Interpreted objectively, the shares of the Flat devised upon MC Lam and MY Lam are not intended to be in specie.  Section 23B of the Wills Ordinance is not engaged.  Evidence of the Deceased’s subjective intent is not admissible[7].

Whether misadministration

46.The powers of personal representatives are regulated by section 54 of the PAO, which stipulates relevantly that:

“(1) No conveyance of immovable property of a deceased person dying after the commencement of this Ordinance shall be made without the concurrence of all the personal representatives of the deceased or an order of the court.

…

(4) A personal representative may charge, mortgage or otherwise dispose of any property vested in him, as he may think proper, subject to any restriction which may be imposed in this behalf by the will of the deceased and to the provisions of this section:

Provided that an executor may dispose of any property notwithstanding any restriction so imposed, if he does so in accordance with an order of the court.

(5) The disposal of property by a personal representative in contravention of the provisions of this section shall be voidable at the instance of any other person interested in the property.”

47.As explained by Godfrey V-P in Chun Hon Wai at 484I to 485C, and 487G to I:

“1. The powers of a personal representative, when the deceased dies testate, are derived from the will itself, from common law and from statute, and frequently from all three. These powers remain available until the administration is complete and the residue (after payment of funeral and the testamentary expenses and debts) is ascertained, after which the residuary estate is held upon trust for the persons beneficially entitled. While a deceased's estate remains in the course of administration, no beneficiary has any interest in any specific asset comprised in it.

2. It is a general rule of law and equity that a personal representative has an absolute power of disposition over all the personal estate of the deceased. This rule is based on the principle that the executor or administrator is, in many cases, driven to realise the assets in order to perform his duty in paying debts and distributing the estate: and no one would deal with an executor or administrator if liable afterwards to be called to account.

3. So, personal representatives can, by virtue of their office, dispose absolutely of terms of years vested in them as representatives and can make a good title even as against a specific legatee.

…

The answer to the question whether anything in s.54, particularly, of course, in sub-ss.(4) and (5), operates to limit the rights of a personal representative to sell property comprised in the deceased’s estate for the purposes of administration is clearly that it does not. Were it otherwise, it would make nonsense of s.61(1)(a).  What sub-ss.(4) and (5) do is to preserve the right of a beneficiary to object, as an excess of power, to any disposition by a personal representative otherwise than for the purposes of administration.  They do not affect a purchaser who takes an assignment from an executor who is selling in the course of administration, or who is to be presumed to be doing so, unless the circumstances are such that the purchaser is put on notice that the sale is in breach of trust; for example, when there is evidence that the administration has been completed and that the sale is not being effected for the purposes of administration …”

48.In the light of my view on the interpretation of the Will, the refusal on the part of the Executors to give an assent as requested by MC Lam does not per se constitute any misadministration.

49.What is then left is Mr Ngai’s further submission that the Executors’ insistence upon a sale is in any event a misadministration because their refusal to give assent is for reasons not relating to the proper administration of the Estate.  The main basis of Mr Ngai’s submissions in this regard is set out at §26 of Ngai/2, that the “Executors’ contention that they are to take into account the interest of all beneficiaries is simply incorrect as a matter of law[8]. It is submitted that the duty of the Executors is to carry into effect the provisions of the Will.”  He then repeats §23 of Ngai/1, wherein he submits that: “As stated in para.[25.1] of Williams on Wills, 10th edition: ‘An executor is the person appointed by the will to administer the property of the testator and to carry into effect the provisions of the will.’ (emphasis added.)  In the present case, the Will provides that the [Flat] be devised to MY Lam and MC Lam in the ratio of 6:4.  The Executors should give effect to the Will.”.

50.I have rejected Mr Ngai’s interpretation of the Will that the 40% interest in the Flat to MC Lam is intended to be a gift in specie. Accordingly, the Executors’ refusal to give the assent and decision to administer the Flat by obtaining possession and selling the same to collect the proceeds are in my view within their duty to carry into effect the provision of the Will, do not fall foul of “any restriction which may be imposed in this behalf by the [Will]”[9], are for the purposes of the administration of the Estate, and are not in excess of their powers as executors[10].

51.For the reasons set out above, I am not satisfied that MC Lam has established any misadministration by the Executors.  He cannot force the Executors to give the assent which he has demanded them to make.  His expressed willingness to buy out MY Lam’s shares either from MY Lam or from the Estate does not give him any extra right or entitlement which he otherwise does not have.

Whether the Flat be sold

52.In summary, MY Lam and MP Lam seek under OS/739 the following order:

(a)  vacant possession of the Flat within 3 months;

(b)  delivery of all title deeds within 28 days;

(c)  the Flat be sold by private treaty or failing which public auction according to the specified directions;

(d)  directions on application of the proceeds;

(e)  liberty to any party having an interest in the Flat to offer to purchase or to bid at the auction; and

(f)  liberty to apply.

53.Mr Wong relies on Wong Chun Kei v Poon Vai Ching [2007] 1 HKLRD 825 at §§16-19 and submits that the “usual principles” as set out therein should apply.

54.Wong Chun Kei is a case on an order for sale under the PO.  Mr Wong has placed before me no authority in support of his submission that the same principles apply.  I have serious reservations as to whether they do.  MY Lam and MC Lam are at the moment not co-owners of the Flat.  They will not be until administration of the Estate.  This is very different from the case of an order for sale being sought by an existing co-owner to rid himself of the shackles of co-ownership.

55.However, the undisputed facts are that MC Lam and Jiao are in possession of the Flat.  They have maintained their demand for an assent, and have refused to vacate.

56.I repeat the observations I made at §50 above.

57.I have considered §30 of Ngai/1 wherein Mr Ngai submits that selling the Flat can create potential hardship to MC Lam, because if he does not offer the highest price, the Executors have every reason not to sell to him, and that he would be at risk of losing his co-ownership of the Flat. 

58.I do not see why he can expect to buy out the Flat otherwise than by offering the highest price, and why that should be regarded as a hardship.  In any event, even if he were out-bidden, he would still be entitled to his share of the proceeds.

59.In all the circumstances, to enable the Executors to complete the administration of the Estate, I grant the Executors (and MY Lam in her personal capacity) the order sought in OS/739.

Overall disposition

60.For the reasons set out above:

(a)  I dismiss OS/375; and

(b)  I allow OS/739, and, save the matter in §(c) below, make an order in terms of that Originating Summons;

(c)  As I have summarized above, the Executors seek vacant possession within 3 months.  Given the prevailing pandemic, the deadline will be tight.  I give MC Lam and Jiao 6 months from the date of the Judgment to vacate.

61.In terms of costs, I make the following costs order nisi:

(a)  MC Lam shall bear the costs of OS/375 which, for the avoidance of doubt, are not to be paid out of the Estate, with certificate for counsel;

(b)  the Executors (and MY Lam in her personal capacity) shall have the costs of OS/739 which shall be borne by MC Lam and Jiao (which, for the avoidance of doubt, are not to be paid out of the Estate), and the Executors’ own costs be paid out of the Estate, with certificate for counsel;

(c)  All costs to be summarily assessed on the paper.  The Executors be at liberty to file and serve their Statement of Costs within 14 days from the date hereof, MC Lam to file and serve his Statement of Objection within 14 days thereafter, and the Executors to file and serve their reply within 7.

62.I add as a postscript that despite this Judgment, it remains possible for parties as members of the same family to work matters out amicable, and I genuine hope that they will.

Mr Lawrence LK Ngai, instructed by CL & Co Solicitors, for the Plaintiff in HCMP 375/2021 and 1^st and 2^nd Defendants in HCMP 739/2021

Wong Hok Yan, instructed by Patrick Mak & Tse, for the Defendants in HCMP 375/2021 and the 1^st and 2^nd Plaintiffs in HCMP 739/2021