LDCS 25000/2020
[2022] HKLdT 46
IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
LAND COMPULSORY SALE MAIN APPLICATION NO 25000 OF 2020
__________________________
BETWEEN
PRO SHINE INTERNATIONAL INC. LIMITED
1st Applicant
POWER ABLE DEVELOPMENT LIMITED
2nd Applicant
SUPER FORTUNE CORPORATION LIMITED
3rd Applicant
and
YEUNG PIK KEUNG (楊碧強)
1st Respondent
PANG CHI KIN (彭志健)
2nd Respondents
CHAN KWAI TAI (陳㩗帶)
3rd Respondent
KWAN WAI KAY (關偉基)
4th Respondent
HO YUK YEE (何玉儀)
5th Respondent
THE PERSONAL REPRESENTATIVES OF FU YIN LING (傅延齡), DECEASED
6th Respondent
CHEERMART LIMITED
7th Respondent
__________________________
Before: Mr Alex Ng, Member of the Lands Tribunal
Dates of Trial: 6 – 9 June 2022
Dates of Written Closing Submissions: 23 June 2022 and 8 July 2022
Date of Judgment: 13 September 2022
__________________
JUDGMENT
__________________
BACKGROUND
1. This is the applicants’ application for an order for sale, for the purposes of redevelopment under the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“the Ordinance”), of all the undivided shares of and in the Remaining Portion of section A of Inland Lot No 767 and the Remaining Portion of section I of Inland Lot No 767 (“the Lots”) together with the building erected thereon known as Tsui Wah Building, Nos 120 - 122 High Street, Hong Kong (i.e. previously known as No 10 Sui Wah Terrace) (“the Building”).
2. The Building is a 12-storey commercial / residential composite building served by a passenger lift and 2 common staircases. Occupation permit No H117/68 was issued for the Building on 18 June 1968, granting permission to occupy its ground floor as shop for non-domestic use, and its 1st floor to 11th floor as 4 flats per floor for domestic use.
3. According to the approved building plans with reference no 2/2340/64 (“Approved Building Plans”), there are 2 shops planned on the ground floor and 4 residential units planned on each of the 1st to 11th floors. Although there is a set of subsequent alterations and additions plans with reference no 2321/69 to convert the shops on the ground floor into a workshop together with ancillary areas, no such conversion was found upon inspection. The existing layout of the ground floor appears to conform with the Approved Building Plans and the plan attached to the Sub-Deed of Mutual Covenant dated 11 October 1988.
4. There are also discrepancies in the description of residential units (i.e. Flat C and Flat D) between the Approved Building Plans and the assignment plans retrieved from the Land Registry, but the parties agree to adopt the descriptions as registered in the Land Registry.
5. The Lots together with the Building standing thereon is allocated 48 undivided shares. Each of the 2 units on ground floor is given 2 undivided shares, each of Flats A and B on 1st Floor together with their corresponding Flat Roof is given 1/2 of 2 undivided shares, and each of the other domestic units on upper floors (i.e. including Flats C and D on 1st Floor together with their corresponding Flat Roof, and Flats A, B, C and D on 11th Floor together with their corresponding Roof) is given 1 undivided share, making up a total of 48 undivided shares.
SECTION 3 OF THE ORDINANCE – OWNERSHIP OF THE APPLICANTS
6. At the time of filing of the Notice of Application (“NOA”) on 23 September 2020, there were 7 respondents and the applicants owned 89.58% (i.e. 42 and 1/2 of 2 out of the total 48) undivided shares in the Lots, more than the threshold of 80% required for building aged 50 years or above.
7. After the filing of the NOA, the applicants acquired units from the 2nd , 3rd and 6th respondents, and subsequently discontinued the proceedings against them.
8. Section 3(1) of the Ordinance prescribes that the minimum percentage of undivided shares that an applicant or applicants should possess before making an application under the Ordinance is 90%.
9. Section 3(5) of the Ordinance provides that the Chief Executive in Council may, by notice in the Gazette, specify a lower percentage in respect of a lot belonging to a class of lots specified in that notice.
10. The Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice, made under section 3(5) of the Ordinance (“the Notice”), was gazetted on 22 January 2010 and came into operation on 1 April 2010. Section 3 of the Notice lowered the threshold for compulsory sale of specified classes of lots from 90% to 80%. Those classes of lots include:
“a lot with each of the buildings erected on the lot issued with an occupation permit at least 50 years before the relevant date”
11. Since the occupation permit of the Building was issued in 1968, i.e. more than 50 years before the date of application (i.e. 23 September 2020; the relevant date under the Notice), the applicable percentage is therefore 80%.
12. I am satisfied that as at the date of application, the applicants owned more than 80% of the undivided shares in the Lots. I am therefore satisfied the applicants are entitled to make the present application under section 3 of the Ordinance.
THE REMAINING RESPONDENTS
13. At trial, the applicants owned 93.75% (i.e. 44 and 1/2 of 2 out of the total 48) undivided shares in the Lots. The following 4 respondents (“the respondents”) remain in the present action: -
Respondent
Premises
1st Respondent
(“R1”)
Flat C on 3rd Floor (“R1’s Property”)
4th Respondent and 5th Respondent
(“R4 & 5”)
Flat D on 8th Floor (“R4 & 5’s Property”)
7th Respondent
(“R7”)
Flat A on 1st Floor (“R7’s Property”)
14. The respondents, represented by Mr Adrian But (“Mr But”), take issues primarily on valuations as assessed in the application and whether the applicants have taken reasonable steps to acquire all the undivided shares in the Lots, and put the applicants to strict proof in respect of the other statutory requirements under the Ordinance. The respondents rely on the reports and valuations prepared by Mr Paul Varty (“Mr Varty”).
15. The applicants are represented by Mr Mok Yeuk Chi (“Mr Mok”) and Ms Julia Au, and have also appointed Mr Charles Chan (“Mr Chan”) of Savills Valuation and Professional Services Limited (“Savills”) as their valuation expert.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
16. The remaining issues to be decided in this case are as follows:
1) What was the respective existing use value (“EUV”) of all units in the Building as at 10 July 2020, the valuation date adopted in the application valuation report dated 21 September 2020, as assessed in accordance with Part 1 of Schedule 1 of the Ordinance?
2) Whether the redevelopment of the Lots is justified due to age and/or state of repair of the Building in accordance with section 4(2)(a) of the Ordinance?
3) Whether the applicants have taken reasonable steps to acquire all the undivided shares in the Lots on terms that are fair and reasonable in accordance with section 4(2)(b) of the Ordinance?
4) If an order for sale should be granted, what should be the reserve price (i.e. redevelopment value (“RDV”) of the Lots) for the purpose of auction sale?
DETERMINATION OF THE EUV OF ALL UNITS IN THE BUILDING
17. Pursuant to section 4(1)(a)(i) of the Ordinance, if there is a dispute between the parties on the EUV of the units as assessed in the application, the tribunal shall determine the proper value. Section 4(1)(a)(ii) further provides that, in the case of any minority owner of the lot who cannot be found, the majority owner of the lot is required to satisfy the tribunal that the value of the minority owner’s property as assessed in the application is: -
“(A) not less than fair and reasonable; and
(B) not less than fair and reasonable when compared with the value of the majority owner’s property as assessed in the application.”
18. In these proceedings, the applicants and the respondents dispute on the assessments of both EUV and RDV.
EUV of Shops
19. Mr Chan and Mr Varty agree on particulars of the 2 shops on ground floor and the unit rate of the reference shop unit (i.e. Shop A on Ground Floor) at $229,500 per square meter. Before the trial, they disagree on the internal condition of Shop B on Ground Floor only and whether -3% should be made to it because of its poor internal condition. After the site inspection at trial, the respondents further argue whether -3% should also be made to the reference shop unit, which had not been inspected by Mr Varty before the trial, because of its poor condition, and whether Shop B on Ground Floor should be further adjusted downward because it does not contain a rear exit to the lane.
20. I consider that the respective internal conditions of Shop A and Shop B are similar and are poor. Although I agree with Mr Chan that value of a shop is less susceptible to its internal condition because it is common for new shop occupiers to renovate the premises before commencing business, I am of the view the poor condition of the subject 2 shop units in this instance should be adjusted at -1.5%. However, I disagree to make further adjustment for rear exit, which has not been fully argued by the parties. Mr Varty does not know whether or not the shop comparables have rear exit. He cannot prove the difference in value between shops with and without rear exit in this section of High Street, where is relatively quiet. Accordingly, Shop A and Shop B are valued at $33,950,000 and $35,980,000 after rounding.
EUV of Flats
21. In the valuation of the reference domestic unit (i.e. Flat D on 6th Floor), Mr Chan and Mr Varty agree to adopt the adjusted unit rate at $171,000 per square meter. In the valuation of the other domestic units, they agree on all particulars except for internal condition of 4 units (i.e. Unit A on 5th Floor, Unit C on 5th Floor, Unit D on 7th Floor and Unit D on 8th Floor). They also agree on the adjustment for size at 1% per 5-square meter difference, the adjustment for view and the adjustment for top floor (i.e. 11th Floor) at -4%, but they disagree on the adjustment for floor.
22. With reference to the photos provided by the parties, I agree with Mr Chan that the internal condition of Unit A on 5th Floor, Unit C on 5th Floor and Unit D on 7th Floor should be fair as at the valuation date instead of poor as suggested by Mr Varty. The internal condition of Unit D on 8th Floor, which is owned by R4 & 5 should also be fair, instead of poor as proposed by Mr Chan and good as suggested by Mr Varty.
23. Regarding the adjustment for floor in the Building, a mid-rise aged building with lift, I prefer the less sensitive rate at 0.5% per level as suggested by Mr Varty to 1% per level as proposed by Mr Chan.
24. The valuation of each domestic unit in the Building is listed in Appendix I of the judgment.
EUV of All Units in the Building
25. The EUV of all units in the Building as at the relevant date of valuation, i.e. 10 July 2020, and adopted by this tribunal are appended below: -
Floor Unit EUV Floor Unit EUV
G/F
A
$33,950,000
G/F
B
$35,980,000
Sub-Total:
$69,930,000
Floor Flat EUV Floor Flat EUV
1/F
A
$5,940,000
1/F
C
$6,710,000
1/F
B
$6,920,000
1/F
D
$7,590,000
2/F
A
$6,770,000
2/F
C
$6,640,000
2/F
B
$6,650,000
2/F
D
$7,160,000
3/F
A
$6,800,000
3/F
C
$6,480,000
3/F
B
$6,490,000
3/F
D
$6,780,000
4/F
A
$6,910,000
4/F
C
$6,510,000
4/F
B
$6,520,000
4/F
D
$7,030,000
5/F
A
$6,940,000
5/F
C
$6,550,000
5/F
B
$6,560,000
5/F
D
$7,060,000
6/F
A
$6,970,000
6/F
C
$6,380,000
6/F
B
$6,590,000
6/F
D
$7,100,000
7/F
A
$7,010,000
7/F
C
$6,610,000
7/F
B
$6,420,000
7/F
D
$7,130,000
8/F
A
$7,040,000
8/F
C
$6,640,000
8/F
B
$6,790,000
8/F
D
$7,310,000
9/F
A
$7,080,000
9/F
C
$6,880,000
9/F
B
$6,820,000
9/F
D
$6,900,000
10/F
A
$7,110,000
10/F
C
$6,910,000
10/F
B
$6,860,000
10/F
D
$7,380,000
11/F
A
$7,600,000
11/F
C
$7,330,000
11/F
B
$7,200,000
11/F
D
$8,020,000
Sub-Total:
$303,090,000
26. I therefore accept the total EUV of the Building is $373,020,000 (i.e. $69,930,000 + $303,090,000).
SECTION 4(2) OF THE ORDINANCE - JUSTIFICATION AND REASONABLE STEPS
27. Section 4(2) of the Ordinance provides as follows: -
“2. The Tribunal shall not make an order for sale unless, after hearing the objections, if any, of the minority owners of the lot the subject of the application under section 3(1) concerned, the Tribunal is satisfied that—
(a) the redevelopment of the lot is justified (and whether or not the majority owner proposes to or is capable of undertaking the redevelopment)—
(i) due to the age or state of repair of the existing development on the lot; or
(ii) on 1 or more grounds, if any, specified in regulations made under section 12; and
(b) the majority owner has taken reasonable steps to acquire all the undivided shares in the lot (including, in the case of a minority owner whose whereabouts are known, negotiating for the purchase of such of those shares as are owned by that minority owner on terms that are fair and reasonable).”
28. The applicants must satisfy this tribunal the above statutory requirements are met; otherwise, an order for compulsory sale would not be granted.
Whether development of the Lots is justified due to the age and/or state of repair of the Building
29. The applicants adduce expert evidence of Mr CM Wong, a structural engineer, of CM Wong & Associates Limited and Mr Benson Wong, a building surveyor, of Benson Wong & Associates Limited. Mr CM Wong conducted a structural survey of the Building and prepared a Structural Assessment Report on 6 July 2021. Mr Benson Wong conducted a condition survey of the Building and prepared a Condition Survey Report on 6 July 2021.
30. None of the respondents adduced expert evidence to rebut the reports complied by Mr CM Wong and Mr Benson Wong.
31. Having considered the reports of Mr CM Wong and Mr Benson Wong, I accept their expert opinion. The Building, being erected about 54 years ago, is in poor condition and is aged structurally. Its structure is considered to have passed the end of its design working life. The design of the Building has become obsolete over time in many aspects, both physically and functionally, and fails to conform to modern safety standards and statutory requirements.
32. I am also of the view the Building is in poor state of repair and its structural frames are not structurally sound and safe. Even without taking into account any costs of structural repairs, the costs of repair to bring the Building to a fair state is disproportionate to the costs for constructing a new similar superstructure. Even if repair works are carried out, such works will bring about a modest improvement only to the existing condition of the Building and the Building will continue remain a sub-standard one.
33. By reason of the matters set out above, I am satisfied the redevelopment of the Building is justified.
Whether the applicants have taken reasonable steps
34. In assessing the reasonableness of the offers, I have considered the case of Capital Well Ltd v Bond Star Development Ltd (2005) 8 HKCFAR 578. In particular, I have considered paragraphs 33 and 36 of the judgment in which Ribeiro PJ stated: -
“33. In making that assessment the Tribunal is not conducting a valuation exercise. It does not need to adjudicate upon any disputes about the correct valuation principles to be applied. It does not itself arrive at any conclusion as to what figure represents the correct valuation. It merely needs to be satisfied that, on the evidence available, the offer falls within the range of what may broadly be regarded as fair and reasonable compensation for the interest in question. It is obviously necessary to recognise that there will often be differences of opinion on that matter……”
“36. ...... We are of course not suggesting that it is necessary for the offer to “beat” the valuation as if it were a payment into court. What the Tribunal must do is to consider whether, in the circumstances of each case, the offer falls within a band of what represents a fair and reasonable assessment of the value of the minority owner’s interest reflecting a proportionate share of the redevelopment value of the whole site……”
35. The applicants have made 2 offers to the respondents on 30 July 2020 and 26 May 2022 respectively. All the offer prices have made reference to the valuation of Savills and have also reflected the then pro-rata share of the RDV.
36. On the evidence available, I accept that the offer prices have reflected the respective proportionate share of the RDV of the Lots and do fall within the range of what may broadly be regarded as fair and reasonable compensation for the interest in question. I am satisfied the applicants have taken reasonable steps to acquire all the undivided shares in the Lots.
37. I am not persuaded by the respondents that (1) reliance should be placed on the assessment figures contained in a 2017 pamphlet of a property agent (“Billion Sino”); (2) the concept of reasonableness demands fair and equal treatment amongst all owners and the respondents should not be treated worse off simply because they were the last ones in the acquisition process; and (3) the offer price should further consider the buyers’ stamp duty and other expenses incurred by the respondents when acquiring a replacement unit.
38. I consider that the sales tactics of property agent is irrelevant in the consideration of “reasonable step”. In any event, there is no acceptable evidence in these proceedings that Billion Sino represented the applicants. Even if Billion Sino was acting for the applicants, there is no policy justification under the Ordinance that the respondents should be guaranteed to be re-offered at a price level equal to that as suggested by Billion Sino or the 2017 transactions. Further, even if a minority owner might not accept an offer because of his or her own circumstances, one cannot infer that the offer itself was unreasonable. The Ordinance has not required the applicants must satisfy the individual demands and / or cater for individual circumstances of each minority owner.
RESERVE PRICE FOR THE AUCTION
39. By reason of being satisfied that redevelopment of the Lots is justified and that the applicants have taken reasonable steps to acquire all the undivided shares in the Lots, I am satisfied an order for sale should be granted in favour of the applicants.
40. Mr Chan and Mr Varty agree to adopt residual method and update their respective RDV assessments as in April 2022, but they disagree on the exact valuation date. I am of the view the valuation date can be fixed at say 10 April 2022, a midway figure between 20 April 2022 and 1 April 2022 as proposed by the parties, which would not have material impacts on both assessments.
41. The 2 valuation experts agree to develop the Lots on a registered site area of 461.45 square meters, but they dispute on the optimum hypothetical development scheme. While Mr Chan proposes to build a 25-storey composite building with shops on ground floor, club house and communal garden on 1st floor and domestic units from 2nd floor to 24th floor at the plot ratio of 8.2533 and total gross floor area of 3,808.51 square meters, Mr Varty opines that the optimum hypothetical development would be a 23-storey composite building with shops and setback (i.e. 36.18 square meters) on ground floor, clubhouse on 1st floor and 2nd floor, sky garden on 2nd floor and domestic units from 3rd floor to 21st floor at the plot ratio of 8.3875 and total gross floor area of 3,870.41 square meters. They also dispute on the size and placement of plant rooms, design of transfer plate, size of common areas, plot ratio calculation of the common areas on clubhouse floor, size of typical domestic unit and building of simplex or duplex units on top floor(s).
42. Although the 2 valuation experts agree on the unit rate for the shop unit(s) on ground floor at $284,000 per square meter, they disagree on the gross development value (“GDV”) of the domestic units on upper floors. In the residual valuation, they agree on the unit demolition cost at $2,200 per square meter, but they differ in opinion on how to derive the unit construction cost. They agree on demolition period of 0.5 year, marketing cost at 3% of GDV, professional fees at 6%, but they disagree on construction period, interest rate and developer’s profit.
Hypothetical Development Scheme
43. Mr Chan and Mr Varty argue mainly whether the hypothetical development should be built in accordance with Practice Note No APP-152 or Practice Note App-132, both issued by Buildings Department. In view of the narrow High Street in front of the Lots, Mr Chan adopts the cross-ventilated communal podium garden approach (APP-152), whilst Mr Varty proposes to have set back on ground level (APP-132), which would allow a higher site coverage on upper domestic floors and enhance the overall efficiency of the hypothetical development.
44. I am indifferent to these 2 schemes and consider that the differences between them would not have material impacts on the valuation because the 2 valuation experts have in any event agreed the ground floor shop unit rate and the proposed ground floor shop(s) just comprises a small portion of the hypothetical development.
45. Each of the 2 schemes has its own merits and demerits. Although I agree with Mr Chan the increase in site coverage of the upper domestic floors from 33% to 40% could increase the flat size but not the number of units and a larger flat may deter marketability due to its higher overall selling price, I disagree with him that the setback proposed by Mr Varty, which would render the ground floor shop front recessed from the building lines of adjoining buildings, would have adverse impact on shop value. In this regard, I agree with Mr Varty that the open setback area in this section of High Street can enhance the use of some occupants such as cafes, bars and restaurants. I also agree with Mr Varty that the building of lesser domestic floors would increase the overall efficiency.
46. Nonetheless, I prefer the hypothetical development scheme proposed by Mr Chan to that of Mr Varty except for the application of lift shaft exemption as suggested by Mr Varty. While I consider that size and placement of plant rooms and landscaped garden (or communal sky garden) can be adjusted upon finalization of design, I agree with Mr Chan that, on balance, (i) a larger common area on ground floor (i.e. 100 square meters) is justified due to the elongated shape of the Lots; (ii) the building of a maintenance corridor of about 19.3 square meters on ground floor as suggested by Mr Varty, which serves the pipe ducts only running along the entire length of the corridor, is not necessary and acceptable; (iii) the common areas on clubhouse floor(s) would be counted as domestic gross floor area; (iv) a simplex on the top floor (i.e. 111.76 square meters as proposed by Mr Chan) is more marketable than 2 duplexes on the top 2 floors (i.e. each of about 110.127 square meters on 2-level as suggested by Mr Varty) in such small to medium scale development; and (v) the proposed transfer plate should generally be underneath the domestic footprint and therefore there will be more likely a smaller flat roof on the lowest domestic floor (i.e. 64.17 square meters as proposed by Mr Chan) instead of a larger flat roof (i.e. 110.346 square meters as suggested by Mr Varty).
47. With reference to the designs of the comparable developments for GDV assessment particularly 15 Western Street, I agree with Mr Varty that part of the exempted gross floor area should better be allocated for lift shaft exemption, which could increase the overall saleable area and hence the GDV of the hypothetical development, instead of building a larger clubhouse as proposed by Mr Chan, which could only increase the GDV marginally. I am of the view the provision of a larger clubhouse is not so influential on GDV in such small to medium scale development.
48. Given that the actual common area including the lift shaft area on each upper domestic floor as proposed by Mr Chan at 40 square meters is similar to that as suggested by Mr Varty at 39.715 square meters, I consider that the lift shaft exemption area to be added to Mr Chan’s hypothetical development scheme could be allocated for saleable area instead for enlarging the actual lift shaft area. Nevertheless, since Mr Chan’s hypothetical development scheme has already fully utilized the maximum site coverage on upper floors at 33.33% and building of an additional floor in this instance would increase the total common area, I consider that the additional saleable area as released by the lift shaft exemption should better be allocated to ground floor only.
49. If the accommodation on ground floor including shop, entrance lobby and plant room is taken into consideration, I envisage the ground floor shop area can be increased from 250.43 square meters as proposed by Mr Chan to say 310 square meters, and in this instance the plant room will be accommodated on both ground floor and 1st floor and there will have a smaller clubhouse. By applying the formula for plot ratio calculation in composite building under the Building (Planning) Regulations Cap 123F, the increase of shop area of about 60 square meters (i.e. non-domestic gross floor area) is equivalent to an additional lift shaft exemption area of about 32 square meters (i.e. decrease of domestic gross floor area) only.
50. I am not assisted by the parties on the said alternative scheme and therefore cannot derive the model in every details, but I am of the view, for the subject valuation purpose only, the proposed increase of ground floor shop area is practical and reasonable due to the consideration of lift shaft exemption. Accordingly, the plot ratio and total gross floor area of the hypothetical development scheme would then be about 8.3135 and 3,836.27 square meters (i.e. non-domestic gross floor area of about 310 square meters and domestic gross floor area of about 3,526.27 square meters).
51. Since I accept basically Mr Chan’s hypothetical development scheme, I also accept his proposed layout on upper domestic floors including the reference domestic unit (i.e. a typical domestic unit of 28.96 square meters on 14th floor). The main differences between the adopted scheme and that of Mr Chan are the layouts on ground floor and 1st floor only, including the allocation of more shop area on ground floor, smaller clubhouse on 1st floor and plant room on both ground floor and 1st floor.
GDV – Domestic Units
52. Mr Chan and Mr Varty agree to adopt 5 common comparables in One Artlane, but they disagree on the number of comparables in Two Artlane and 15 Western Street. I agree with Mr Chan to adopt 45 comparables only in Two Artlane, excluding the transactions before May 2021, and 30 comparables only in 15 Western Street, excluding 2 transactions of larger size as compared with the adopted domestic reference unit and the transactions before May 2021.
53. The 2 valuation experts agree on the adjustment for time with reference to the private domestic price indices, adjustment for building view at 5%, adjustment for age at 1% per year difference, adjustment for scale and facilities (i.e. -3% to One Artlane and Two Artlane, and 0% to 15 Western Street), adjustment for headroom at 4% per 1-meter difference, adjustment for holding cost (i.e. 2.5% per annum) to the comparables in Two Artlane transacted in June 2021 and before, and adjustment for financial benefit to Comparable D1.1.
54. In terms of location, I agree with Mr Varty 15 Western Street is similar to the Lots, and “environment” should also be taken into consideration in addition to “accessibility” to public transport. I am of the view that the environment of the Lots is better than all comparable developments but it is located on an uphill terrain. Whilst, the proximity of One Artlane and Two Artlane to the exits of MTR Sai Ying Pun Station could justify an overall positive adjustment but the rate should be 5% only instead of 10% as proposed by Mr Chan.
55. Regarding the adjustment for floor, I consider that the rate should be 0.75% per level difference in this instance, higher than 0.5% per level as adopted in the EUV assessment and as suggested by Mr Varty, but it should not be as high as 1% per level as proposed by Mr Chan. Looking at the floor level pairing exercise prepared by Mr Chan, the high sensitive percentage at 1.59% of 15 Western Street appears to be out of line and there is only 1 pair of comparables in One Artlane for analyses. Whilst, the percentage of Two Artlane is about 0.82% per level only.
56. Regarding the adjustment for size, I prefer the more sensitive rate at 1% per 5-square meter difference as proposed by Mr Chan, which is also the agreed rate in the EUV assessment, to 1% per 10-square meter difference as suggested by Mr Varty.
57. Regarding the adjustment for noise, I agree with Mr Varty that 15 Western Street is more affected by traffic noise but the adjustment rate should be 2% only instead of 5% as suggested by Mr Varty.
58. The valuation of the domestic reference unit is listed in Appendix II of the judgment. The average unit rate of the 3 comparable developments is about $315,435. I consider the adoption of $320,000 per square meter, closer to the average adjusted unit rate of 15 Western Street at $330,606, is fair and reasonable. 15 Western Street is closer to the Lots and size of its comparables is similar to that of the reference domestic unit too.
59. The valuation of average unit rate of the domestic portion is listed in Appendix III of the judgment. I agree with Mr Varty that the adjustment to the units with close building view on lower floors should be -5% only instead of -10% as proposed by Mr Chan, but I agree with Mr Chan that the 15% adjustment for special unit as agreed by the parties should have covered the value of ancillary area (i.e. roof) of the proposed simplex in such small to medium scale development. Whilst, the adjustment for floor should be 0.75% per level difference as determined above. The average unit rate of the domestic portion should then be assessed at $326,000 per square meter.
RDV of the Lots as at 10 April 2022
60. Based on the agreements of the 2 valuation experts and the above determinations, the GDV of the Lots as at 10 April 2022 is listed in Appendix IV of the judgment.
61. Since I basically accept Mr Chan’s hypothetical development scheme, I also accept his proposed construction cost at $180,249,496 (i.e. $47,328 per square meter) instead of the higher construction cost at $182,013,066 as suggested by Mr Varty. Nevertheless, I accept the construction period of 2 years only as suggested by Mr Varty instead of 2.5 years as proposed by Mr Chan. I agree with Mr Varty that with prior co-ordination and planning 2 years is sufficient for the construction of the hypothetical development. Unless further details and comments by construction expert can be provided for examination, the simple records of longer construction periods of some nearby developments in the past as provided by Mr Chan are not the good references to infer the optimum construction period in the residual valuation.
62. Regarding the interest rate, I prefer the higher rate at 4% per annum as proposed by Mr Chan to 3.5% as suggested by Mr Varty. Interest rate as at the valuation date is on a rising trend. In fact, the central banks of many developed countries have been increasing their interest rates in recent months, which should have affected the hypothetical project finance cost in the residual valuation.
63. Regarding the developer’s profit on costs, I consider that it is fair and reasonable to adopt a percentage of 15% in this instance. I am of the view that as at the valuation date the property market is relatively unstable and the market sentiment is relatively weak because of the Ukrainian War, pandemic and increase of interest rate, and developers would generally demand a higher profit to compensate the higher development risks. Although the property market had once been improving in 2021, the market condition and sentiment as at the valuation date have weakened marginally.
64. Lastly, although the 2 valuation experts have agreed on the deduction of stamp duty at 4.25% on land value, the respondents submit the tribunal should further consider that the applicants will likely be the purchaser of the Lots upon public auction and in the circumstances the applicants will only be required to pay only the respondents’ undivided shares of the stamp duty under section 6 of the Ordinance.
65. I agree with Mr Mok that such consideration is irrelevant in the determination of reserve price, which takes into account the redevelopment potential of the Lots on their own. I am of the view the reserve price under the Ordinance should base on market value of the Lots upon redevelopment, which is adopted by the 2 valuation experts in these proceedings. Even if the applicants will likely be the purchaser, the applicants are the “special purchaser” only in the market valuation of the Lots, which should be excluded in the assessment. Further, I agree with Mr Mok that the applicants in fact had already paid the stamp duty of the applicants’ undivided shares during the acquisition process and would not gain a “windfall” in stamp duty as claimed by the respondents.
66. The Lots are assessed at $525,000,000 by residual valuation, equivalent to an accommodation value of about $137,849 per square meter (i.e. about $12,806 per square foot).
ORDERS
67. For reasons given in this judgment, I have set out reasons why I am satisfied an order for sale should be granted and I therefore make the following orders: -
1) All the undivided shares in the Lots, the subject of the application, be sold by way of public auction for the purposes of redevelopment of the Lots;
2) Mr Ma Ho Fai and Ms Kung Ying Chang, nominated by the applicants, be appointed the trustees (“the Trustees”) to discharge the duties imposed on them as trustees by the Ordinance in relation to the sale of the Lots;
3) The Trustees be authorized to charge such remuneration for their services in accordance with the terms set out in the letter of Messrs Woo Kwan Lee & Lo dated 21 April 2021;
4) For the purposes of the sale of the Lots by public auction: -
a) the sale of the Lots be on the particulars and conditions of sale the same or substantially the same as those set out in the draft Particulars and Conditions of Sale to be approved and initialed by the tribunal; and
b) the reserve price be set at $525,000,000;
5) Subject to further extensions that the tribunal may subsequently allow upon the application of the purchaser of the Lots or its successor in title, the redevelopment of the Lots and the Building shall be completed and made fit for occupation within a period of 6 years after the date on which the purchaser of the Lots becomes the owner of the Lots; and
6) Liberty to the applicants, the 1st respondent, 4th respondent, 5th respondent, 7th respondent and their successors in title, and the Trustees to apply to the tribunal for further directions.
COSTS
68. Following Good Faith [1] nisi that the applicants do pay costs of these proceedings to the respondents, on High Court scale with certificate for counsel and including any reserved costs, to be taxed if not agreed. Unless any parties apply by summons to vary, the costs order nisi shall be made absolute upon expiry of 14 days from the date of this judgment.
(Alex Ng)
Member
Lands Tribunal
Mr Mok Yeuk Chi and Ms Julia Au, instructed by Mayer Brown, for the applicants
Mr Adrian But, instructed by Anthony Chiang & Partners, for the 1st , 4th , 5th and 7th respondents
[1] Good Faith Properties Ltd and Others v Cibean Development Co Ltd [2014] 5 HKLRD 5340