LAM CHUNG WAI v. LAM HI WAY

HCMP 2898/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2898 OF 2012

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J U D G M E N T

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1. This is the Plaintiff’s application for the sale of a flat which he and his brother the Defendant own as tenants in common.

2. The flat being Flat A on the 5^th floor of Block A in Tempo Court, Braemar Hill Road Hong Kong, was bought by their father and was registered in his son’s names.

3. The father and their mother lived in the flat for many years until the death of the father in 2007 and the mother in 2012.

4. Unfortunately, the Plaintiff and the Defendant have not been on good terms.

5. It is the Plaintiff’s case that the Defendant has been uncooperative and he has experienced considerable difficulty in obtaining the Defendant’s agreement to plans in relation in the property.  He also claims to have some cash flow problems which would be alleviated if a sale of the property was to be effected.

6. Over above all of this it appears to be common ground between the parties that both brothers who are now in their mid sixties are not in good health and indeed as will be seen from the case being advanced by the Defendant his poor health is one of the matters he places reliance upon in opposing this application.

7. Put in a nut shell it is the Plaintiff’s case that he does not wish to be locked into a situation where he can’t sell the property and has to continue to hold it with his brother who to date has been uncooperative.

8. The Defendant advances two main grounds in opposing the order which the Plaintiff is seeking to obtain. 

9. The first is that he has a strong sentimental attachment to the flat which was occupied by his parents for so many years.

10. The second is that he is proposing that the sale of the flat should be postponed for either three years or the time of his death whichever occurs earlier.

11. The rationale behind this is that the flat should now be leased to his son Robert who is a doctor and Robert’s wife is also a doctor.

12. As the suit premises are in close proximity to the flat which the Defendant occupies it would be possible if the suit premises are let to Robert that he and his wife would be able to look after him.  This is a matter of particular importance having regard to his present medical condition.

13. Mr Leung for the Defendant accepts that under the relevant legislation the burden of establishing that the discretion reposed in the court that the sale of the property should be deferred lies upon the Defendant.

14. It may be helpful in consider the head note of the judgment of Recorder J. Fok (as be then was) in the case of Wong Chun Kei v Poon Vai Ching [2007] HKLRD 825 at 826 where the learned Recorder set out the factors which should in weighted in determining whether a judge should decline to order that there be a sale of the property.

“Held, refusing to make any order, that:

(1) Where land was held by two or more persons as joint tenants or tenants in common, any person interested in the property could institute proceedings under the Ordinance by way of an action for partition or sale: s3(1). In any such proceedings, whether an application for partition under s4(1) or for sale under s6(1), the court had jurisdiction to consider exercising any of the three powers conferred by s2, which were separate and distinct, namely: (a) order a partition of the Property under s4; (b) order a sale of the Property under s6; or (c) refuse to make any order (Pun Jong Sau & Others v Poon Wing Kong & Others [1980] HKLR 662 followed). (See paras 7, 12, 13.)

(2) The following principles applied to proceedings under the Ordinance: (See paras 16 – 19.)

(a) a co-owner had a basic right to rid himself of the shackles of co-ownership and, if he had no other remedy, has for an order for partition or sale;

(b) when it was impracticable to make and order for partition, the court should make an order for sale unless it was persuaded (the burden being on the opposing co-owner(s)) that such an order would not be beneficial to all the co-owners or that it would result in very great hardship to one co-owner;

(c) whether an order sale was beneficial to all the co-owners was not determined by the dissent of the opposing co-owner or the assertion by them that it was not beneficial. It had to be determined by the court objectively (Fook Sun Enterprises Co Ltd v Cromwell Investment Co Ltd & Others [1973 – 1976] HKC335, Chow Doi Kwan v Chan Cho Yuk [2000]2 HKLRD 235, Beautiglory Investment Ltd v Tang Moon Sum & Others (unrep., HCMP No 531 of 1989, [2003] HKEC 1471), Ip Sau Shu v Sham Lai Hing [2003] HKEC 528 followed).

(3) Here, the just result was to decline to order the sale (See para 108.)”

15. I am not satisfied that the Defendant is able to meet criteria laid down in this case.

16. I do not consider that much weight can be attached to the sentimental value the Defendant claims to have in the suit premises.

17. Also I do not think that a sale of the property should be postponed simply to enable the Defendant’s son Robert and his wife to occupy the flat.

18. As a matter of common sense it must be possible for Robert and his wife to find another flat in the vicinity of the suit premises.  It is common knowledge that there are many flats in this neighborhood.

19. In any event no evidence has been adduced by the Defendant that there might be any problems in that connection.

20. I have no doubt that the principles propounded by Recorder Fok are the correct principles.  When they are applied to the evidence which lies before me I am satisfied that the proper order to be made is that the Plaintiff should have the order he is seeking and I so order.

21. As to the form of the order and as to costs I will hear the parties.