Chow Doi Kwai v. Chan Cho Yuk

HCMP7083/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.7083 OF 1998

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Coram: Hon Yam J in Court

Date of hearing: 6 March 2000

Date of judgment: 6 March 2000

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J U D G M E N T

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1. This is actually a very sad case. The plaintiff, Madam Chow, is an 87 years old widow. She jointly owns a property in Jaffe Road ("the Property") with the defendant, Madam Chan, her daughter-in-law. Her son some times ago passed away already, leaving Madam Chan, a 36 years old widow with two daughters, one aged 3 years 10 months and the other 1 year 10 months, i.e. they are still in their tender age.

2. Madam Chow wanted to have the Property partitioned or otherwise sold under the Partition Ordinance, Cap.352. In fact, both parties agreed that the flat could not be partitioned, and Madam Chow is in fact asking for an order for sale of the Property since both of them are tenants in common in equal shares. According to the surveyor's assessment, the premises probably would realize $600,000 odd by way of proceeds of sale. After deducting all the expenses, each share would amount to about $300,000.

3. Madam Chow is now living in a nursing centre, also in Wanchai. She is receiving Comprehensive Social Security Assistance ("CSSA") together with Higher Disability Allowance ("HDA"), totaling $5,860 a month. This will fully cover her private old people's home fees. According to the Social Welfare report, if after the Property was sold and each was paid $300,000, the consequence would be that both of them would not be entitled to receive any Social Welfare assistance since the savings limit for Madam Chow would exceed the limit of $37,000, whereas the savings limit for Madam Chan would exceed $74,000.

4. If the Property was sold, Madam Chan would have to find alternative accommodation and she would have to look for another premises. (At present, her $7,000 odd per month is only sufficient to support her and her two daughters.) She would have to pay rental out of the money she received and chances are that would not last very long. That may not even be enough for her one year's expenditure if she has to pay rental for the household.

5. On the other hand, Madam Chow's entitlement under the CSSA and HDA would cease. According to my calculation, the $300,000 she received would only cover the old people's home fees for 50 months.

6. Madam Chan at one time has offered to pay Madam Chow by way of rental the half share of the premises in the sum of $1,600 which is her utmost limit. However, according to the Social Welfare report, Madam Chan of course can pay $1,600 out of her social assistance allowance, whereas if Madam Chow receives $1,600, the same amount will be deducted from her CSSA. In other words, she would not be benefited from the payment at all. In short, the $1,600 payment would be to the detriment of Madam Chan, but not for the benefit of Madam Chow at all.

7. The order for sale would render the whole family of Madam Chan homeless. I do not find the order of sale beneficial to both parties. It is definitely not beneficial to Madam Chan and it is of not much benefit to Madam Chow in the end. It has been decided that an order for sale should not be made if the parties' interests would be better served by remaining as co-owners, or if there would be very grave hardship resulting from the order of sale. In Fook Sun Enterprises Co. Ltd v. Cromwell Investment Co. Ltd (1973-1976) HKC 335, Briggs CJ said at 337H :

"I think that a court would only make no order, neither an order for partition nor an order for sale, when the interests of all the parties would be better served by their continuing to remain co-owners, or where the facts show that to make such an order would result in very great hardship to one co-owner."

8. In my view, the order of sale in the case before me would have the effect of creating very grave hardship to Madam Chan and would not be of much benefit to Madam Chow.

9. Mr Patrick Szeto, counsel for the plaintiff, has ably argued that Madam Chow has already made a will for the beneficiary not being the defendant, Madam Chan, and chances are that there will be future litigation from the personal representative of the plaintiff should the will in future take effect. My short answer to that is the court can only wait and see for such an event to occur, and hopefully there will be a change of circumstances. No one knows. Madam Chan, hopefully, will not be resisting an application then. Again, nobody knows what will happen in future. That, in my view, should not be taken into consideration in my judgment in this very case in the framework of the matrix of facts before me.

10. I must thank counsel from both sides who have ably argued the respective cases for their own clients. I must add that whichever way I go, there is no perfect solution in this case, but I think the course of justice is better served by refusing to grant an order for sale and to maintain the status quo than granting such an order. For that reason, I refuse the application for sale of the Property and dismiss the plaintiff's originating summons.

11. Since both parties are on legal aid, there shall be no order as to costs. Both parties' own costs shall be taxed according to Legal Aid Regulations.

Representation:

Mr Patrick Szeto, instructed by Messrs Yuen & Partners, for the Plaintiff

Mr Edward Shum, instructed by Messrs Ng, Lie, Lai & Chan, for the Defendant