FORD WORLD DEVELOPMENT LTD v. THE ESTATE OF YAU TUNG ON (aka YAU YIN TSOI) AND ANOTHER

DCMP 3675/2022

[2024] HKDC 772

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3675 OF 2022

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DECISION

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Introduction

1.  This is an application by the plaintiff (“P”), made inter partes by an originating summons issued on 26 September 2022 (“the OS”), for an order for sale of 3 parcels of land in the New Territories (collectively, “the Lots”). For procedural reasons complicated by service issues, the OS did not come to be heard substantively (by me or any other judicial officer) until 8 April 2024, some 1.5 years after it was first issued.

2.  As I orally explained to Mr Darren Poon, solicitor for P, when the OS came to be heard by me on 8 April 2024, on perusing the papers my first impression was that the legal costs claimed (being HK$754,495) were very much on the high side, and I would like to scrutinize the papers more carefully to see whether the claim was justified. I reserved my decision on the whole matter. Having scrutinized the papers more carefully, I am fully satisfied P’s claim for legal costs was justified, and that I should hand down my written decision explaining why.

3.  This is my written decision.

P’s Submissions

4.  Mr Darren Poon, acting for P, lodged full written submissions, which I have read.

5.  In gist, according to Mr Poon, each of the Lots was co-owned by P. P had a 1/6 interest in each of them. Photographic evidence showed that the Lots were undeveloped and overgrown with wild vegetation. Since the Lots were zoned for residential development, it was perhaps regrettable that they were nevertheless “abandoned”.

6.  P’s affidavit evidence showed that P made extensive inquiries vis-à-vis the whereabouts and/or intention of P’s co-owners, but they were nowhere to be found. On 23 March 2023, P advertised the existence of this action in Sing Tao Daily, but no person contacted P’s solicitors in any way or form. In the circumstances, Mr Poon skilfully submitted to me, it should be fair that I proceed on the basis that P had done all that could reasonably be demanded of P in terms of bringing this action to the attention of P’s co-owners and allow P to get rid of the shackles of co-ownership in a manner that would be fair to each and every person with an interest in the Lots.

7.  Mr Poon drew my attention to a letter dated 25 October 2022 from the Director of Lands with internal reference number “(7) in LD T1 11/18/13/2244” which said the Director of Lands had no comment on this application.

8.  On the quantum of costs, Mr Poon most sensibly accepted that I should independently decide what it should be and left it to me to decide whether the quantum as claimed was in my view justified or not.

My View

9.  Having scrutinized all papers and P’s submissions, I accepted P’s submissions as correct. This is a classic case where an order for sale is evidently appropriate as a remedy.

10.  As I had said in 3 Sing Credit Limited v Cheng Man Yee and Others [2023] HKDC 936, the starting point is always what Recorder Fok SC (as Fok PJ then was) had clearly stated in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825. As far as an interest in land in Hong Kong is concerned, a co-owner has a basic right to rid himself of the shackles of co-ownership so that the burden is on any opposing co-owner to persuade this court an order for sale ought not be granted. In the absence of affidavit evidence in opposition, I should grant an order for sale, and give directions which would be fair and appropriate, including vis-à-vis the interests of the absent parties.

11.  For the record, I should mention Mr Poon lodged a total of 12 authorities, the last of which was just a sealed order (instead of a reasoned decision) in a similar case involving P. Since in the common law tradition only the ratio decidendi of a decision, but not the outcome itself, is part of the law, and each judicial officer is independent of other judicial officers, I ignored that sealed order, as I should.

12.  On the quantum of costs, in an ordinary case, such as 3 Sing Credit Limited v Cheng Man Yee and Others [2023] HKDC 936, it should be below HK$100,000 after assessment. In Konew Capital International Ltd v Wong Lik Hoi [2022] HKDC 883, it was HK$70,000. In Ego Finance Limited v Poon Sau Han Joanna & Chan Yuk Kai Eddie [2023] HKCFI 868, it was HK$50,000. P’s claim for HK$754,495 raised my eyebrows.

13.  That said, each case is different. Having carefully considered all papers, I concluded that P’s claim for HK$754,495 was justified, given the following special features of this particular application: -

(1)  The circumstances under which P came to become a co-owner of the Lots were complicated. In explaining the factual background, P’s first affidavit had to start from explaining a declaration of succession dated 24 August 1910, followed by explaining a judgment of Mr Justice Liu dated 12 November 1983 in HCA6185/1981, which was highly unusual.

(2)  The other co-owners should of course be notified of this action but they were not easily contactable like a person normally is in this day and age. Time-consuming steps had to be taken to bring this action to their attention.

(3)  The Lots being undeveloped land (and not a residential unit in a high-rise building), P had to explain in its first affidavit why physical partition of the Lots would never be practicable, as this was not self-evident. This could only be achieved with the assistance of a survey report, prepared professionally, carefully explaining the Lots’ physical sizes, locations, and therefore their limitations. P did exactly that, in a manner which was helpful.

(4)  Given the above, it was proper for the paperwork to be done by senior and experienced solicitors whose hourly rates would otherwise be too much on the high side.

(5)  Given the above, it was also proper for the written and oral submissions to be presented in a manner that would be on the more detailed side, and by someone with real and substantial advocacy experience (such as Mr Poon, who used to be a Barrister in private practice).

14.  Practitioners should not assume the quantum of costs in other cases can be at this unusually high level after assessment. Indeed, I would imagine in any ordinary case similar to 3 Sing Credit Limited v Cheng Man Yee and Others [2023] HKDC 936, the quantum of costs should be below HK$100,000 after assessment.

Disposition

15.  By reason of the above, my decision herein is to make an order in terms of the revised draft order lodged shortly before the oral hearing on 8 April 2024, with the costs of these proceedings being summarily assessed by me at HK$754,495 (as claimed, without deduction), and directed by me to be paid out of the sale proceeds in the manner and in the priority exactly as proposed in the said revised draft order. Conveyancing and enforcement costs shall be capped at the level and in the manner as proposed by P. There shall be general liberty to apply (and any such application can be heard by any judge) if any person or entity wants to alter any of the directions in the order I am making today.

Final Remarks

16.  I do thank Mr Darren Poon for his very able assistance.