WONG KWOK GEE v. RISEWAY INVESTMENT LTD.

IN THE COURT OF APPEAL

1994, No. 226
(Civil)

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J U D G M E N T

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Godfrey, J.A. :

1. This is an appeal from an order of Patrick Chan, J. made on 7 December 1994, pursuant to s.2 of the Partition Ordinance, Cap. 352 ("the Ordinance"), on the application of the plaintiff in the action (the respondent before us) Riseway Investments Ltd, whereby the judge made an order for sale of a property 73D Waterloo Road, Kowloon, a four-storey building which had at one time been used as a family home but which had largely ceased to be used or suitable for that purpose.

2. The family consisted of a father, Wong Ting Po, who had five sons, the first of them Wong Kwok Chiang (the 1st defendant in the action), who is now 61; the second Howard, now 60; the third Kenneth, now 57; the fourth Wong Kwok Gee (the 2nd defendant in the action), now 54; and the fifth James, who is now deceased. By a Deed of Gift made on 7 March 1984, the father assigned the property to his five sons as tenants in common in unequal shares.

3. Wong Kwok Chiang has had health problems. Although he has lived in the property since 1951, he has, since the date of the judge's order, come to terms with the respondent and has taken no part in the hearing of this appeal.

4. Howard has, for many years, lived in Canada, and Kenneth has, for many years, lived in Australia. Wong Kwok Gee is the appellant before us. He, like Wong Kwok Chiang, has lived in the property since 1951. James, as I have said, is now deceased.

5. The appellant and Wong Kwok Chiang at one stage claimed to be entitled to life interests in the property. Wong Kwok Chiang has, as I have said, now dropped out of the picture; and the appellant has now limited his claim to a monthly tenancy or tenancies. He claims to have a monthly tenancy of the lower ground floor or basement of the property, paying a rent therefor of $1,500. He claims also to have a tenancy of the first floor of the property at a rent of $600 and of the second floor of the property at a rent of $900. The respondent does not dispute these limited claims.

6. The respondent, having acquired the interests of all the brothers, other than Wong Kwok Chiang and the appellant, in the property, sought the order for sale which the judge made.

7. The judge however was unclear about the nature of the claims made by Wong Kwok Chiang and the appellant, and what he did was this. He made an order for sale of the property by public auction; but he adjourned the hearing to 17 December 1994 for "inquiries as to the nature of the defendants' occupancy in the said property". This was the wrong way round. The judge had, no doubt, jurisdiction to direct such inquiries as to the nature of the property and the persons interested therein and such other matters as he thought necessary or proper: see s.3(4) of the Ordinance; but the correct course would have been to direct those inquiries to be held before taking the decision whether or not there should be an order for sale. The Ordinance is specific; s.2 of the Ordinance provides that, in a case like this, the court may (a) make an order for a partition of the property (b) make an order for sale of the property; or (c) refuse to make any order. It is, I think, obvious that, if inquiries are necessary at all, those inquiries have to be made before the discretion to select the appropriate one of these three possible courses is exercised by the judge who is asked to exercise it.

8. Accordingly, the judge slipped up; though his error was technical rather than substantial. In the result, the inquiries which the judge had directed were held before Findlay, J. who, while satisfied of the existence of the monthly tenancies of the appellant to which I have referred, refused to accept the life tenancy claims made by Wong Kwok Chiang and by the appellant.

9. The appellant now claims, in my judgment, correctly, that the judge's order ought to have been framed in such a way as to ensure that the inquiries were held before the judge's discretion was exercised, even if it be the case (and, as events turned out, it was) that the discretion could really have been exercised only in one way, i.e. in favour of the order, which the judge made, for a sale of the property.

10. Before us, it became plain that an order for sale of the property was indeed the only sensible order which any court could make now in the events which had happened, namely (1) the conclusions reached by Findlay, J. on the inquiry; and (2) the very recent event whereby Wong Kwok Chiang capitulated and sold out to the respondent.

11. In these circumstances, I am of the opinion that the right course for us to take is to allow the appeal; but to exercise our discretion afresh, in favour of ordering the sale. So, in the end, I would come to the same conclusion as the judge; but in circumstances which have changed since he made his order.

12. There remains only the question of the costs of the appeal. This is not an entirely easy question, on the one hand, because, the appellant has succeeded on the appeal but, on the other hand, his claim for a life tenancy has been rejected by Findlay, J. and he has had no benefit from his technical victory before us.

13. Taking one thing with another, I am prepared to accede to the suggestion made to us by Mr. Mok on behalf of the appellant that the just order to make would be an order that the appellant do have half his taxed costs of the appeal; and I would so order.

Liu, J.A. :

14. I agree.

Nazareth, V.P. :

15. I also agree.