MAK LAM PUI YUK v. MAK WO PING

IN THE COURT OF APPEAL

No. 516 of 1987
(Miscellaneous Proceedings)

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J U D G M E N T

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Kempster, J.A.;

1. On 21st July 1905 Mak Lam Pui Yuk presented a petition for the dissolution of her marriage with Mak Wo Ping on the ground that the marriage had broken down irretrievably.  On 20^th November following Judge McClelland pronounced a Decree Nisi, granted custody of their younger son to the petitioner and directed that the respondent should continue to comply with an earlier interim order requiring him to pay to the petitioner HK$2,800 a month for her benefit and for that of both their sons and to be responsible for the school fees of the elder.  Subject thereto all questions relating to maintenance were adjourned into chambers.

2. On 7^th January 1987 Judge McClelland ordered, inter alia, that a valuation of the matrimonial home, the property of the respondent, should be made by one surveyor on behalf of both parties;  an order made pursuant to R.S.C. Order 40.  He also ordered that if it should prove impossible to agree who the surveyor should be either party might apply for the valuation to be requisitioned by the Director of Legal Aid.

3. On 12^th of that Month the respondent’s solicitors wrote to the Legal Aid Department, who were at all material times acting, as they still act, on behalf of the petitioner in the following terms:

We are instructed that a flat of the same size as our client’s property at Tsui Yue Court was sold in mid 1986 at the price of HK$270,000.00.  We are conducting a land search to confirm the same and suggesting that if the valuation of the matrimonial home was assessed on the basis of comparables it might not be necessary to have an independent valuation.

Apparently the solicitors had overstated the price because on the following day they wrote again to say that the sale of the property in question had realised HK$250,000.00. The Director of Legal Aid was minded nonetheless to obtain a valuation and by an exchange of correspondence agreement was, it would appear, reached that Jones Lang Wootton should undertake the task.  On February 7^th they inspected the property.

4. On 5th February solicitors for the respondent had written to Jones Lang Wootton in the following terms:

Re: Valuation report in respect of Room 7, 5th floor, Tsui Yue Court

We refer to the letter dated 27^th January 2987 written by the Legal Aid Department to your goodselves. In that connection, we enclose herewith a copy of land search record recently made against Block B, Flat No. 6, 18^th floor, Tsui Yue Court, Shan Tsui Yuen.  We trust this will serve as a useful comparable.

They enclosed the land search which, prima facie at least, might be regarded as helpful to the valuers in the discharge of their responsibility to the court.  It would appear, however, that a different view was taken by the Director of  Legal Aid to whom the letter was copied.  He issued a singularly ambiguous application which read:

Take notice that the Petitioner intends to apply to his Honour Judge McClelland – for directions in relation to the valuation on the matrimonial home.

Its contents were not material clarified by the Director’s answer to an inquiry by the respondent:

“the directions we shall seek from the Court will be in relation to the manner as to how the valuation should be conducted.” (sic)

Before the judge on 12^th February a further order for valuation of the matrimonial home to be requisitioned by the Director of Legal Aid from Messrs. A.G. Wilkinson & Associates was sought and granted.  Against it the respondent husband seeks leave to appeal.

5. The allegation appears to have been made before the judge, which is supported today on behalf of the petitioner by Mr. Tang and Mr. Faulkner, that the letter of February 5^th was improper.  It was and is contended that while it might be perfectly in order for the independent valuer to approach the parties for assistance it was wholly improper for one of them to take the initiative and approach him.  Mr. Tang could not go so far as to submit that the independence of the valuer was calculated to be compromised any more in the one instance than in the other but, following researches of Mr. Faulkner in to some of the cases cited in the material paragraph of Phipson on Evidence, we have been referred to a case decided by the Court of appeal in Ireland in 1902 called the Earl of Gosford v Alexander and Others;  Duke of Manchester v Shevlin and Others(1).  That was a decision relating to the principles upon which valuers were required to act pursuant to their obligations under section 48(4) of the Landlord (Ireland) Act 1881 and which allowed them to apply only what was described as their “antecedent knowledge”.  They could not make specific inquiries for the purpose of advising the Land Commission in relation to their specific remit.  In that context one of the valuers had been approached by the agent, who may or may not have been called Captain Boycott, for one of the parties and referred to the rent of an adjacent property.  Palles CB reprimanded such conduct in no uncertain terms.  FitzGibbon LJ, however, was concerned with the principles of valuation and so, it would appear, was Walker LJ.  For my own part I am unable to obtain a great deal of assistance from this interesting decision and consider the suggestion that the integrity or impartiality of Jones Lang Wootton might in any way have been affected by the letter of the 5^th February quite unsupportable.

6. Everything was completely above board.  It was for Jones Lang Wootton to take advantage of this suggested comparable if they saw fit and, indeed, to take the same action in relation to any other comparable brought to their attention by or on behalf of the petitioner which, one would expect, would likewise have been copied to the respondent.  In the circumstances it appears that the order made by the judge on the 12^th February was based on a misapprehension of principle and plainly wrong.  I would grant leave to appeal and, on the undertaking of the petitioner to file a Notice of Appeal by 12 am tomorrow, treat this as the hearing of the appeal which I would allow  by discharging the order of 12^th February and restoring Jones Lang Wootton as the independent valuers.

7. We have also been referred to Harmony Shipping Co S.A. v  Saudi Europe Line Ltd.(2) which deals with the entitlement of one party to call a witness who has been approached and consulted by another.  It is not directly in point.

Cons, V.-P.:

8. I agree with the orders proposed by my Lord and the reasons that he has given and would merely reemphasise, because the judge below seems to have held firm views to the contrary, that for my part I have no reason whatsoever to think that in circumstances like the present a party, on giving full notice of the other side and without in any way attempting advocacy, who draw the attention of the valuer to a matter which must have been of importance to him in regard to his valuation, is acting undesirable or improperly.

Power, J.:

9. I agree with all that has fallen from my brothers and have nothing to add.

David Yam (Fairbairn Catley Low & Wong) for Applicant

Robert Tang Q.C., R. Faulkner (D.L.A.) for Respondent