SUSAN WONG v. HONOR BUDGET CO LTD AND ANOTHER

HCMP 406/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 406 OF 2017

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D E C I S I O N

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1.  This is an application under Order 113 RHC for possession of the premises in question.

2.  The plaintiff is one of the tenants-in-common of the premises, each holding 50% equal and undivided shares of the premises.  As such, she applies for possession of the premises.

3.  The 1^st defendant (“D1”) was the other tenant-in-common of the premises until 26 September 2008 when it assigned its 50% interest in the premises to Madam Yeung.

4.  The question is whether this application is appropriate for an order of possession under O.113 RHC.

5.  The following factual situations have to be taken into consideration:

(a) D1 was the former tenant‑in‑common of the premises;

(b) It was the corporate vehicle holding the property for its members, madam Yeung being one the shareholders;

(c) It had assigned its interest in the premises to Madam Yeung;

(d) Madam Yeung remains the other tenant‑in‑common of the premises for the time being;

(e) Madam Yeung was at one time authorized to lease out the premises; such authority was terminated by the plaintiff;

(f) There is no evidence whether there was any lease between Madam Yeung with D1 during the time when Madam Yeung had the authority to lease out the property;

(g) The plaintiff had given notice to D1 and Madam Yeung of this application, but they did not respond to the notice;

(h) Today, there is no one from D1 or Madam Yeung appearing before this Court, though service of the Originating Summons has been proved.

6.  The plaintiff submits that since D1 is a separate legal entity, it can be treated as a trespasser of the premises, the fact that Madam Yeung being one of the shareholders and directors of it is irrelevant.  As such this Court should grant the order as requested.

7.  For the following reasons, I consider that this application is misconceived:

(a) It seems clear that this a dispute between the tenants‑in‑common of the premises where one party is trying to obtain possession of the property.  I have been informed that there are related legal proceedings between the plaintiff and Madam Yeung over this property;

(b) Though D1 is a separate legal entity, to make an order against it is, in substance, to evict Madam Yeung from the premises whereas she is one of the tenants‑in‑common of the premises;

(c) The question remains whether it is just and equitable to treat D1 and Madam Yeung as the trespassers from the premises.  In my view, it is simply not.

8.  Obviously, this matter involves factual disputes between the plaintiff and Madam Yeung, which should be resolved through the proper legal procedures under a writ.

9.  As such, I have to exercise my discretion to refuse granting the order as requested.  I shall do so and dismiss the application.

10.  Since the defendants are not appearing before me today, I shall not make any order as to costs.