LIU, LI v. YATES, SIMON DAVID

DCCJ 5759 /2018

[2021] HKDC 238

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5759 OF 2018

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BETWEEN

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REASONS FOR JUDGMENT

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Introduction

1.  On 14 December 2020, I gave judgment for the plaintiff’s claim for, inter alia, an order for sale of the property known as Flat C on 1^st Floor, including the Flat Roof thereof, Maple Gardens Phase II, No. 39 Kin Wah Street, Hong Kong (the “Property”) held by the plaintiff and the defendant as tenants in common in equal shares and the distribution of the proceeds thereof in equal shares.  I now give the reasons for my judgment.

Relevant factual background

2.  The plaintiff and the defendant were formerly co-habitees living in the Property with their two children.  The Property was purchased by them as joint tenant by way of an assignment dated 19 December 2012 at the consideration of HK$5,950,000.  The plaintiff contributed HK$2,000,000 towards the purchase of the Property out of the proceeds of sale of her own flat while the balance thereof was paid by the defendant.

3.  The defendant suddenly deserted the plaintiff and their two children and disappeared in August 2016 before he eventually re-appeared and approached the plaintiff demanding for custody and care and control over the two children in early 2018.

4.  To facilitate the children’s schooling, the plaintiff together with the two children moved out of the Property and relocated themselves to the New Territories in or around May 2018 and the Property has been left vacant since then.

5.  In or about July 2018, the defendant instituted legal proceedings against the plaintiff at the family court regarding the custody of the children.  The family court proceedings was fully settled in July 2020.

6.  On 14 August 2019, the plaintiff executed a notice of severance and registered the same in the Land Registry by Memorial No 19082701120028 on 27 August 2019 whereby the plaintiff severed the co-ownership of the Property from joint tenancy to tenants in common in equal shares.

The plaintiff’s claim

7.  In this action, the plaintiff claimed for an order for sale of the Property and for distribution of the proceeds after deducting the relevant expenses in equal shares between the plaintiff and the defendant.

8.  The writ of summons was issued on 17 December 2018.  The writ and all the documents in this action were served on the defendant at the last known address provided by him in the family proceedings. The defendant has never responded to the present proceedings.

9.  Having considered all the affirmations of service filed by the plaintiff, I was satisfied that the notice of the hearing of the trial had been properly served on defendant.  I therefore allowed the trial to be proceeded with in the absence of the defendant pursuant to Order 35 Rule 2 of the Rules of District Court, Cap 336H.

10.  The plaintiff proved her case by giving oral evidence at trial.  The plaintiff also relied on the expert evidence of Mr Denys L P Kwan, director of C S Surveyors Limited on the market value of the Property.  According to Mr Kwan, the market value of the Property on vacant possession basis as on 23 March 2020 was HK$8,470,000.  Mr Kwan also opined that it is not physically practical to partition the Property into 2 units.

Discussion

11.  The plaintiff’s case is straightforward.  It is well-established that the legal title is the starting point for determination of the parties’ respective interests in a property and the burden is on any person seeking to show that the parties did intend that the beneficial interests to be different from the legal interests to demonstrate this on the facts (Stack v Dowden [2007] 2 AC 432 at [68]).

12.  There was no challenge from the defendant that the parties are each entitled to half share of the beneficial interest in the Property.  There was also no challenge for an order for sale of the Property and for distribution of the net proceeds in equal shares.

13.  I am satisfied on the evidence adduced by the plaintiff that the parties intended to hold the Property in equal shares.

14.  Under Section 2 of the Partition Ordinance, Cap 352 (the “Ordinance”), where any property in land is held by two or more persons, whether as joint tenants or as tenants in common, the court may make an order under Section 4 of the Ordinance for a partition of the property and/or an order under Section 6 for a sale of the property.

15.  Given that physical partition of the Property is impracticable, the plaintiff seeks an order for sale of the Property on the basis that it cannot be shown that an order for sale of the Property will not beneficial to all the co-owners (Section 6(1) of the Ordinance) to which I accept, having considered all relevant factors objectively, including the market value of the Property adduced by the plaintiff and the fact that the Property has since May 2018 been left vacant.

Conclusion

16.  For the above reasons, I enter judgment in favour of the plaintiff and grant an order in terms of the draft Judgment as amended.  I also order that all costs of and occasioned by this action (including costs of the trial and all costs reserved) be paid by the defendant to the plaintiff to be taxed if not agreed with certificate for counsel.