Wong Keith Kei v. Chiu Kam Shing

Case No.DCMP 49/2008

Court

District Court

Date27 Aug 2008

Judge—

Case Document

100%

DCMP 49/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 49 OF 2008

__________

	IN THE MATTER OF Section 6 of the Partition Ordinance (Chapter 352, Laws of Hong Kong)
	and
	IN THE MATTER OF ALL THAT the estate right title benefit and interest of and in ALL THOSE 97 equal undivided 1,117,926^th parts or shares of and in ALL THAT piece or parcel of ground registered in the Sai Kung New Territories Land registry as TSEUNG KWAN O TOWN LOT NO. 55 And of and in the messuages erections and buildings constructed thereon and known as “OCEAN SHORES（維景灣畔）”， No. 88 O King Road, Tseung Kwan O, Sai Kung, New Territories, Hong Kong (“the development”) TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT H on the 33^rd FLOOR of TOWER 15 of the Development (hereinafter called “the Premises”)

__________

BETWEEN

	WONG KEITH KEI （黃驥）	Plaintiff
	and
	CHIU KAM SHING （趙金城）	Defendant

__________

Coram : H.H. Judge Chow

Date of Hearing : 30^th June 2008

Date of handing down Decision : 27^th August 2008

DECISION

1.This is the Plaintiff’s application by originating summons pursuant to section 6 of the Partition Ordinance for an order for sale of the premises known as Flat H, 33^rd Floor, Tower 15, No. 88 O King Road, Tseung Kwan O, Sai Kung, New Territories (“the Premises”).

2.In February 2004, the Plaintiff and the Defendant purchased the Premises for $2,374,000 for investment purposes. They co-own the Premises as tenants-in-common. Under a verbal agreement made between them, the Plaintiff was to occupy the Premises, responsible for paying a fixed mortgage amount of $2,000 per month for 2 years and a rent of about $4,250 per month. The rent was subsequently increased by the Defendant to $7,000.

3.In or about February 2006, the Defendant moved into the Premises. It was agreed that the Plaintiff and the Defendant would jointly pay the monthly expenses of about $16,000 and a monthly rent of $8,500 would be deposited into their joint bank account.

4.The friendship between them deteriorated and the Plaintiff moved out from the Premises on 26 December, 2006. Since then, the Defendant has solely occupied the Premises. He changed the locks of the Premises, refused to allow the Plaintiff to enter the Premises.

5.On 26 December 2006 both parties reached an agreement under which the Plaintiff would sell to the Defendant his interest in the Premises for $100,000. But the Defendant subsequently refused to buy the Plaintiff’s interest.

6.The value of the Premises has appreciated from $2,374,000 to $3,100,000.

The Defendant’s allegation

7.Section 6 of the Partition Ordinance provides:-

“(1) 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 sale of the property.”

8.The Premises constitute a flat, which is self-contained. It was not envisaged that this flat was to be partitioned when it was built. It is simply impracticable to have it partitioned. Partition cannot be beneficial to the Plaintiff and the Defendant.

9.The Plaintiff and the Defendant have been in serious conflict with each other. They can no longer live in the Premises together. So they can no longer co-own the Premises.

10.The Defendant alleges that he intends to use the Premises as his matrimonial home in the future, and he would be homeless if an order for sale is made. But the Premises were purchased by the Plaintiff and the Defendant for investment purpose; they did not intend the Premises to be used as the Defendant’s matrimonial home in the future. So the Defendant’s intention cannot form any basis for hardship, if any. He is now earning about 370,000 a year. The value of the premises has appreciated from $2,374,000 to $3,100,000. He is entitled to half share of the proceeds upon the sale of the premises. He could rent or even purchase a flat for his residence. There cannot be any hardship on his part.

11.The Plaintiff intended to sell his shares to the Defendant, but this effort failed. As a co-owner the Plaintiff has the right to get rid of the shackles of co-ownership. In Fook Sun Enterprises Co. Ltd. V. Cromwell Co. Ltd. & Others [1973-1976] HKC 335, the Court said,

“I think that a court would only make no order, neither an order for partition nor an order of 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.”

12.The Defendant suggests that the Plaintiff could sell his share of the premises to a third party in the open market. What the court has to consider under section 6 of the Partition Ordinance is whether an order for sale of the Premises should be made. Sale of half of the interest of the Premises is not a factor provided for under section 6 of the Partition Ordinance, and so it should not be considered by this Court. The Defendant’s suggestion cannot stand.

13.For all these reasons it is a proper case for the Premises to be sold. I therefore make an order in terms of the revised Draft order marked as “WKK 14” (annexed to the Plaintiff’s 2^nd affirmation).

Costs

14.I make an order nisi, to be made absolute, in 14 days time, that the Defendant is to pay the costs of this action to the Plaintiff, to be taxed, if not agreed, with no certificate for Counsel.

( S. Chow )
District Judge

The Plaintiff: represented by Mr. Tim Wong, instructed by M/S. Tai, Tang & Chong, Solicitors.

The Defendant: in person, unrepresented.