Konew Capital International Ltd v. Chen Bo and Another

DCMP 5526/2023

[2024] HKDC 802

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 5526 OF 2023

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DECISION

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Introduction

1.This is an application by the plaintiff (“P”), made inter partes by an originating summons filed on 27 November 2023 (“the OS”), for an order for sale of a residential unit located in Tsuen Wan, New Territories, Hong Kong (“the Property”). It came to be heard by me on 11 April 2024, when P was represented by Ms Ip Ho Shan (“Ms Ip”), Associate Solicitor of Edward Lau Phoebe Ng Solicitors LLP, the 1^st Defendant (“D1”) was acting in person and showed up before me at the very last minute, and the 2^nd Defendant (“D2”), also acting in person, was absent throughout.

P’s Submissions

2.Ms Ip, acting for P, lodged helpful submissions, all written in English, which I have read. Upon D1 showing up, Ms Ip orally explained those submissions in the Cantonese dialect of the Chinese language, purely for D1’s benefit, and I have listened to such oral submissions as well.

3.In gist, Ms Ip cited my own decision in 3 Sing Credit Limited v Cheng Man Yee and Others [2023] HKDC 936 back to me and submitted the starting point should always be what Recorder Fok SC (as Fok PJ then was) had declared in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825. As far as any interest in land in Hong Kong is concerned, a co-owner (and a legal and/or equitable chargee is also a co-owner for this purpose) has a basic right to rid himself of the shackles of co-ownership so that the burden is on any opposing co-owner to persuade this court an order for sale ought not be granted. In the absence of affidavit evidence in opposition, I should grant an order for sale, and give directions which would be fair and appropriate, taking into account the interests of each person with an interest in the Property. References were also made to what was said in Law Chun Wai v Chu Suk Har [2016] 1 HKLRD 224 (§20 onwards) and Ego Finance Limited v Poon Sau Han Joanna & Chan Yuk Kai Eddie [2023] HKCFI 868 (§21). The revised draft order which Ms Ip had invited me to consider was based on the order I eventually made in 3 Sing Credit Limited v Cheng Man Yee and Others [2023] HKDC 936.

4.Ms Ip quite properly drew my attention to the fact that D1 was an undischarged bankrupt, and that this action was prosecuted by P against D1 with leave of Master Lai of the High Court (HCB 3284/2020). P made extensive inquiries. There was no objection from the Director of Lands, or from other chargees of the Property with priority, or from D1’s trustees-in-bankruptcy, or indeed from any other person with an interest in the matter. Ms Ip further explained all calculations orally.

D1’s Submissions

5.Having listened to Ms Ip’s oral explanations, D1 orally stated he would not contest P’s application, and that he had no comment.

My View

6.Having scrutinized all papers, I accept P’s submissions. This is an appropriate case for an order for sale to be granted. All of my previous concerns had been fully addressed by Ms Ip in her revised draft order.

7.On the quantum of costs, P claimed HK$70,681 for the whole action. I checked each entry in P’s Statement of Costs. My decision is to allow P’s claim of HK$70,681 in full, as each sum claimed by P, whether considered in isolation, or considered in conjunction with the other items, was reasonable, necessary, and proper.

Disposition

8.By reason of the above, my decision herein is to make an order in terms of the revised draft order lodged.

Final Remarks

9.I do thank Ms Ip for her very able assistance.

Ms Ip Ho Shan of Edward Lau Phoebe Ng Solicitors LLP for the plaintiff

The 1^st defendant was not represented and appeared in person

The 2^nd defendant was not represented and did not appear