POON KIT AH v. THE PERSONAL REPRESENTATIVES OF AU-YANG HOONG FUNG VICTORIA (DECEASED)

HCMP 1054/2019

[2020] HKCFI 3115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1054 OF 2019

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DECISION

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1.  This is the hearing of the Originating Summons taken out by the plaintiff (“P”) for an order for sale of Flat E on 1/F and Car Port No 12 of Yee Yuen Mansion, Nos 305‑307 Prince Edward Road West, Kowloon (the “Property”).

2.  The Property is within a multi‑storey residential development.  Its market value was assessed as of April 2019 to be at HK$11,300,000.

3.  One sees from the land search records of the Property the following relevant documents:

 (a)  A sale and purchase agreement dated 26 March 1990 with P and the Deceased being the purchasers as tenants‑in‑common in equal share; and

 (b)  An assignment of 30 April 1990 in their favour.

4.  P and the Deceased have since 30 April 1990 remained the registered owners as tenants‑in‑common in equal share of the Property. 

5.  The Deceased was a close friend of Madam Tsui Chi Mui (“Madam Tsui”). Madam Tsui was P’s late adoptive mother. 

6.  Upon purchase of the Property, and until about 2014, P, the Deceased and Madam Tsui had been living in the Property.

7.  On 24 August 2014, the Deceased passed away in Hong Kong.  She died apparently intestate.

8.  In August 2015, Madam Tsui returned to Hangzhou.  P accompanied her to take care of her.  The Property has since then been vacant.

9.  Madam Tsui passed away in Hangzhou in March 2017.

10.  P has taken steps to ascertain whether any personal representatives have been appointed for the Deceased’s estate.  For that purpose, the Deceased’s brother and nephew have been contacted.  Despite correspondence, no letters of administration have been applied for.

11.  On 9 October 2019, Master J Wong ordered that the Official Solicitor be appointed to represent the Deceased’s estate for the limited purpose of accepting service of the Originating Summons, which the Official Solicitor has.

12.  Notice of this application has been, with prior leave, served out of jurisdiction to the Deceased’s brother and nephew.  The person recorded on the Deceased’s death certificate to have been present at the Deceased’s death has also been served.

13.  On 29 September 2020, Master Tse ordered inter alia that these proceedings do proceed in the absence of a person representing the Deceased’s estate.

14.  The Director of Lands has also been served, in compliance with section 3(2) of the Partition Ordinance and rule 4 of the Partition Rules.

15.  On the applicable legal principles, I have been referred to Re Lee Yik Kwong (Bankrupt) [2019] HKCFI 2485 and Wong Chun Kei Johnny v Poon Vai Chung [2007] 1 HKLRD 825, which principles I apply.

16.  P has the right to rid herself of the shackles of co‑ownership.

17.  The Property is within a multi‑storey development.  Partition is impracticable.

18.  There is nothing before this Court which may suggest that an order for sale will not be beneficial to all the co‑owners.  Nor is there anything which may suggest that an order for sale will result in very great hardship to the Deceased’s estate.  I add that the burden of showing those are on the party resisting an order for sale. 

19.  Subject to certain amendments for updating the market value of the Property and relating to the identity of P’s solicitor who will conduct the sale, I made an order in terms of the Originating Summons.  For avoidance of doubt, I grant a counsel certificate.