Chan Yau Wing v. Chan Yau Hing

DCMP 600/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 600 OF 2013

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DECISION

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The Summons

1.At the eleventh hour, the defendant applied by a summons, filed on 10 February 2014, seeking to transfer this action to the Court of First Instance.

The Grounds

2.The basis of the defendant’s application is that the value of the subject property at the time when the proceedings were issued and as at today exceeds $3,000,000. 

3.I should here point out that no expert evidence as to the market value of the subject property was produced by the defendant.  By the supporting affirmation of Leung Man Man, he only produced information obtainable from the internet regarding transactions of Flat B in the same housing estate and an so-called “oral quotation” from a staff member of a bank.

4.Miss Wong, counsel for the defendant, submits that the plaintiff is claiming for a declaration that a trust subsists.  Therefore, the plaintiff’s claim is invoking the equity jurisdiction of the court.  By virtue of s37(1)(b) and s37(2)(b)(iii) of District Court Ordinance, the claim has fallen outside the jurisdiction of the District Court.

Plaintiff’s opposition

5.Mr Siu, counsel for the plaintiff, opposes the application on 2 grounds:-

(a)     Firstly, that there is no evidence before the court showing the market value of the subject property.  The only evidence is the purchase price of $2,100,000; and

(b)     Secondly, and more importantly, although the plaintiff is claiming a constructive trust, the value of the trust does not exceed the jurisdictional limit of $3,000,000.

6.On the 2^nd limb of his argument, Mr Siu pointed out that the subject property was held by the plaintiff and the defendant as tenants in common in equal shares.  Each of them has a 50% interest in the property.  The plaintiff is now claiming that she has in fact 80% interest in the property.  Therefore, the value alleged to be subject to the trust is 30% of the value of the subject property.  Even accepting that the value of the subject property is over $3,000,000 as claimed by the defendant, the claim is still within the jurisdiction of the District Court.

Reasons for decision

7.S37(2)(b)(iii) of the District Court Ordinance provides:-

“The maximum limits in amount or value referred to in subsection (1) for ---

…

(b) in the case of subsection (1)(b), an estate or fund subject or alleged to be subject to the trust

are ---

…

(iii)  $3,000,000, where the proceedings wholly involve or wholly relate to land”

8.In my view, the maximum limit in value is referring to the value of the alleged trust.  On this, I accept the submission of Mr Siu.

9.S2 of the Partition Ordinance provides:-

“Subject to this Ordinance, where any property in land is held by 2 or more persons, whether as joint tenants or as tenants in common, the court may—

…

(b) make an order under section 6 for a sale of the property;

(c) refuse to make any order.”

10.S9 of the Partition Ordinance provides:-

“Jurisdiction is hereby conferred on the District Court for the purpose of any proceedings under this Ordinance where the annual rent or the rateable value, determined in accordance with the provisions of the Rating Ordinance (Cap 116), or the annual value of the property in land, whichever is the least, does not exceed the sum mentioned in section 35 of the District Court Ordinance (Cap 336), and in such proceedings a District Judge shall have the power and authority of a judge of the High Court conferred by this Ordinance.”

11.S35 of the District Court Ordinance provides:-

“The court has jurisdiction to hear and determine any action for the recovery of land, where the annual rent or the rateable value of the land, determined in accordance with the Rating Ordinance (Cap 116), or the annual value of the land, whichever is the least, does not exceed $240,000.”

12.There is no evidence before me as the rateable value of the subject property in February 2013, ie the time when these proceedings were issued. 

13.According to the Demand for Rates and Government Rent as exhibited, the rateable value of the subject property for the 3^rd quarter of 2012 was $92,520 (C107) and for the 1^st quarter of 2014 is $100,920 (Exh LMM-2 in the affirmation of Leung Man Man filed on 10 February 2014).

14.I am prepared to accept that the rateable value of the subject property at the time when these proceedings were issued did not exceed $240,000 and thus within the jurisdiction of the District Court.

15.I therefore hold that the present claim falls within the jurisdiction of the District Court and therefore the defendant’s summons is dismissed with costs of this summons to the plaintiff in any event.

(Discussion on costs)

16.By summary assessment, I order that the defendant do pay the plaintiff costs of the summons filed on 10 February 2014 in the sum of $15,082.50, to be paid forthwith.

Mr Patrick Siu instructed by S K Lam, Alfred Chan & Co, for the plaintiff

Ms Emma Wong instructed by K M Lai & Li, for the defendant