Wong Chai Han v. The Personal Representative of Chu Yiu Cheung, Deceased

DCMP1702/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1702 OF 2007

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BETWEEN

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Coram: H H Judge Chow in Court

Date of Hearing:     13 August 2009

Date of Judgment:   13 August 2009

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J U D G M E N T

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1.Deputy Judge Jenkins made some orders on 22 August 2000. Order A is problematic and not enforceable because the Respondent simply cannot transfer his interest in the matrimonial home, the property in question in this case upon his death. It must be done by a personal representative at the material time.

2.The Respondent died in 2005. There is no evidence to show that a personal representative for the deceased has been appointed. One of the two sons of the deceased is too young to act as personal representative because he is under the age of 18. The other son (the elder son above the age of 18) is not suitable to be a personal representative for the reasons disclosed in his affirmation.

3.Order B made by Deputy Judge Jenkins is workable, and the purpose of this trial is to give effect to that order.

4.I have gone through the documents in this case which include the affirmation of the Plaintiff and other people. I accept the legal submissions made by the Plaintiff’s representative. The best course to give effect to Order B made by Deputy Judge Jenkins is to sell the property in question.

5.Mr Lam, the legal representative of the Plaintiff, has proposed the orders to be made in this case which include six items. I have considered each one of them and I think the order I made should be within the parameters of the proposed draft order. I therefore make an order in terms of the proposed order as proposed by the Plaintiff’s legal representative.

6.I think I better read it out for the purpose of the judgment. The proposed order which is made by me as an order of this court are as follows:-

(1) The property specified in the schedule hereto be sold, and the schedule refers to Flat 33, 2nd Floor, Chung Mei Building, No.153 Tai Kok Tsui Road, Kowloon, being all that one equal undivided 503^rd part or share of and in The Remaining Portion of Sub-Section 1 of Section B of Kowloon Marine Lot No.28;

(2) The Plaintiff be appointed to have the conduct of the sale including signing provisional and/or formal sale agreements, appointing estate agents and solicitors for the purpose of the sale, obtaining and executing the necessary conveyance documents;

(3) That the sale is conditional on the selling price not being less than HK$400,000.00;

(4) That payment of the purchase price shall be split and made in the following manner:-

(a) in favour of the Government of the Hong Kong Special Administrative Region for an amount being the outstanding Rates as at the completion of the sale;

(b) in favour of such person or persons as may be directed by the Manager or the Incorporated Owners of Chung Mei Building for an amount as shall be necessary for the discharge of the Memorandum registered in the Land Registry by Memorial number 08010701850018 and all outstanding management fees;

(c) in favour of the estate agent responsible for reaching the agreement for sale for the estate agent fee, limited to a maximum of 1% of the sale price;

(d) in favour of the solicitors preparing the sale documents for the legal costs limited to a maximum of the applicable scale charges as laid down in the Solicitors (General) Costs Rules, Chapter 159G;

(e) in favour of “the Director of Legal Aid” in respect of the balance of the purchase price for disposal pursuant to section 19B of the Legal Aid Ordinance as if the said balance were monies paid to the Director of Legal Aid pursuant to section 19A of the Legal Aid Ordinance.

(5) There be liberty for Plaintiff to apply for further directions as to the disposition of the Property;

(6) There be no order as to costs, save that the Plaintiff’s own costs be taxed in accordance with the Legal Aid regulations.

Mr Lam Wing-wo, Bruce, of To, Lam & Co., assigned by the Legal Aid Department, for the Plaintiff

Defendant, in person, absent