HAPPY MORTGAGE SERVICES LTD v. HO YIN SANG AND ANOTHER

HCMP 1736/2017

[2018] HKCFI 1919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1736 OF 2017

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D E C I S I O N

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1.  For the following reasons, I would grant the order for sale, as sought.

2.  At the last hearing, I questioned about the sufficiency of the evidence in support of proper service of these proceedings on the defendants and all parties concerned. That would include any person who may occupy the property and may claim any interest in these proceedings.

3.  On the basis of the further affidavit evidence filed before today, I am satisfied that the plaintiff has made additional effort to properly serve the proceedings on the defendants at their addresses last known to them, and that the defendants should, in the ordinary course of events, be aware of these proceedings, including today’s hearing.

4.  The defendants have never shown up and remain absent today, and I see nothing that should prevent the plaintiff from proceeding.

5.  At the last hearing, I also questioned about the lack of evidence, including such from the surveyor to satisfy the court that a partition of the property is not physically or economically feasible and that the order for sale sought would be beneficial to all the parties concerned.

6.  Now, I have also considered the further evidence filed since then, and that includes the consultation with the surveyor and the result of that, as well as the further submissions made by counsel.

7.  I accept the submissions on behalf of the plaintiff.  I see that the subject property charged is indeed a whole piece of land.  Insofar as the land belongs to the Small Village Type House Development Scheme under the government policy, there is basis for suspecting the existence of unauthorised structures erected on it.

8.  But more importantly, there is prima facie uncertainty, if not difficulty, in proceeding with partition of the land, instead of sale.  Counsel has mentioned the difficulty in respect of compliance with the government policy for a land of this nature, under the Small Village Type House Development, to be partitioned between different owners.  There is also the uncertainty of the consent required amongst the people interested in the land as well as the attitude of the government, save and except that the Director of Lands has been served with these proceedings and he has so far expressed no comment on the application.

9.  At the end of the day, the most important consideration is that none of the defendants, or any person who may be claiming interest in the land, has come forward to put forward their case, be it for partition instead of sale or any other claims that would affect the application.

10.  So in the circumstances, I am satisfied that the application should be granted.