SMART VALUE INVESTMENTS LTD v. PROTIME INVESTMENT LITD AND OTHERS

LDCS 42000/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICANTION No. 42000 OF 2012

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JUDGMENT

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Introduction

1.   This is an application for compulsory sale of a building at 10, 10A, 12 and 12A La Salle Road, Kowloon (“the Building”).  The Building stands on Kowloon Inland Lot No. 3275 (“the Lot”), which is divided into 16 equal undivided shares.  The Building is a residential building according to the Occupation Permit issued on 4 May 1956.  Three out of four flats on the ground floor have been converted into shops.  The Building is one of the oldest buildings in the neighbourhood.

Background

2.   On 1 June 2012, the Applicant commenced the present proceedings under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545) (“the Ordinance”) against the 3 Respondents.

3.   At the material time, the Applicant owned 93.75% (i.e. 15 out of 16) of the undivided shares of the Building, except the remaining undivided share attributable to the unit in the Third Floor of 12A La Salle Road (“the Remaining Unit”).

4.  As detailed in the Amended Notice of Application [A2/237-239]:

(1) The 2^nd Respondent was originally the owner of the Remaining Unit.

(2) By a Legal Charge dated 27 October 1997, the 2^nd Respondent mortgaged the Remaining Unit in favour of the 3^rd Respondent to secure a loan advanced by the latter to the former.

(3) The 3^rd Respondent entered into possession, as mortgagee, on 1^st June 1999.

(4) The 3^rd Respondent, purportedly pursuant to a power of sale as mortgagee, sold the Remaining Unit to the 1^st Respondent by a Provisional Agreement dated 7 August 2010 and an assignment dated 30 September 2010, at $3,630,000.

(5) Questions arose as to whether that sale was at a substantial undervalue and therefore impugnable. At around the time of the sale, there was a joint sale of the undivided shares of the Lot. Savills informed all registered owners of the Building, on 4 August 2010, that each registered owner would, if the joint sale were successful, obtained not less than HK$8,500,000 for the sale of his unit. This was communicated to the 3^rd Respondent, also on 4 August 2010.

(6) Ultimately, the purchase price of each of the 13 units was $8,560,000.

(7) The disparity between $3,630,000 and $8,560,000, and the proximity in time between Savills’ indication of the price to the 3^rd Respondent (4 August 2010) and the sale to the 1^st Respondent (Provisional Agreement dated 7 August 2010) caused the Applicant to have some concern over whether the sale to the 1^st Respondent was impugnable.

5.  For these reasons, the 2^nd to 3^rd Respondents are all joined to these proceedings to ensure that they are bound by the order of compulsory sale. The question as to how the proceeds of sale attributable to the Remaining Unit should be distributed under section 11(2) of the ordinance would be a matter for the Trustees, who could, if necessary, apply to the Tribunal for directions under section 4(9) of the ordinance.

6.   It should also be mentioned that the Applicant had had difficulty of locating the 2^nd Respondent, and all reasonable steps had been taken to do so.

7.   By an order of HH Judge Ko on 8 February 2013, service of the Amended Notice of Application on the 2^nd Respondent has been dispensed with. It was further ordered that notice be published, within 14 days, in a Chinese and an English newspaper circulating in Hong Kong, and an English newspaper circulating in Ontario, Canada, calling upon all persons claiming to be minority owners of the Lot and who have not been served with the notice of Application to establish their claims before the Tribunal within 21 days of the publication of such notice. Upon the expiration of this 21-day period, the 2^nd Respondent shall be bound by the proceedings as if it had been duly served in accordance with section 3(3)(a) of the Ordinance.

8.   Such notices were published on 22 February 2013. More than 21 days have elapsed since such publication but the 2^nd Respondent has not come forth to make any claim. Accordingly, the 2^nd Respondent will be bound by any order that the Tribunal may make.

9.   To conclude, when the Applicant appeared before this Court at the trial, as the 1^st Respondent remained absent, and both the 2^nd and the 3^rd Respondents did not raise any opposition, the application was affectively unopposed. It was a matter for the Applicant to come up with formal proof of its case. At the end of the trial, I agreed that it was so done. Judgment was given to the Applicant and I agreed to deliver my reasons for judgment later. I now do so.

Matters which require consideration by the Tribunal

10. Under section 3 of the ordinance, the Applicant can only make an application for compulsory sale if it owns a sufficient number of undivided shares in the Lot.

11. Under section 4(1)(a)(ii) of the Ordinance, in the case where any minority owner of the lot who cannot be found, the Tribunal shall require the Applicant to satisfy the Tribunal that the value of the Respondent’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 Applicant’s property as assessed.

12. Then, under section 4(1)(b) of the Ordinance, the Tribunal shall consider whether an order for compulsory sale should be made. The Tribunal can only make an order for sale if the 2 conditions provided in section 4(2) are satisfied, i.e.:

 (1) The redevelopment of the Lot is justified due to the age or state of repair of the existing development on the Lot; and

 (2) The Applicant 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).

Whether the Applicant owns sufficient undivided shares

13.   Under section 3(1) of the Ordinance, for an order of compulsory sale to be made, the applicant must own not less than 90% of the undivided shares in a lot. As stated above, the Applicant owns 93.75% of the undivided shares of the Lot.

The existing use value (“EUV”) of the Remaining Unit

14.  The Applicant relies on the evidence of Mr. Alnwick Chi Hung Chan (“Mr. Chan”). His first EUV report, dated 15 March 2012, was attached to the Notice of Application. Mr. Chan is a Fellow Member of the Royal Institute of Chartered Surveyors in the General Practice Division as well as the Hong Kong Institute of Surveyors elected in 2005. He is now an Executive Director of Knight Frank Petty. He has extensive experience in giving evidence in this Tribunal, the High Court and arbitration hearings.

15. Mr. Chan has valued the units by the direct comparison method. A “reference unit” is selected, and its value is assessed by reference to market comparables. Then comparison is made between the reference unit and the other units.

16. Mr. Chan revised the EUV valuation as at 5 March 2012 in his supplemental report on EUV dated 27 December 2012 and they are as follows:

Floors	No.10(Block C)	No.10A(Block D)	No.12(Block A)	No.12A(Block B)
G/F	$5,080,000	$5,132,000	$5,217,000	$5,271,000
1/F	$4,995,000	$4,845,000	$5,300,000	$5,300,000
2/F	$4,895,000	$4,745,000	$5,194,000	$5,194,000
3/F	$4,795,000	$4,645,000	$5,088,000	$5,088,000
Total EUV	$80,784,000

17.   Accordingly, the total EUV is $80,784,000 and the EUV of the Remaining Unit (i.e. 3/F of 12A La Salle Road) is $5,088,000.

18.   The direct comparison method is a well-recognized method of valuation. I am satisfied that the above EUV figures are fair and reasonable values for each unit.

Age or state of repair justifying redevelopment The evidence filed by the Applicant

19.   On this issue, the Applicant relies on the opinion of the following experts:

(1) Mr Benson Wong Sai Ning (“Mr. Wong”), FHKIS, MRICS, RPS(BS), Authorized Person, He has rendered a Condition Survey Report of the Building with appendices in Bundles D1-D3.

(2) Mr So Kin Shing (“Mr. So”), FIStructE, FHKIE, SEng, RPE (Struct), Registered Structural Engineer, Authorized person. He has rendered a Structural Assessment Report with appendices in Bundles E1-E2.

The approach of the Tribunal

20.   As explained by Ribeiro PJ in Capital Well Ltd v Bond Star Development Limited (2005) 8 HKCFAR 578§ 21:

“The objectives of the Ordinance underlying this four-stage process are clear. On the one hand, the Ordinance aims o facilitate urban renewal in respect of old and dilapidated buildings by assisting private developers to complete their acquisition where they already own at least 90% of the lot in question and by preventing the indefinite obstruction of a redevelopment by any minority owners who may seek to extract a wholly unreasonable price or ‘ransom’ for permitting the redevelopment to proceed. On the other hand, it aims to ensure that the minority owner receives fair and reasonable compensation for its interest in the lot. Such compensation may be that which the minority owner agrees to accept or that which represents his share of the market value of the lot (reflecting its redevelopment value) as determined at a public auction, subject to a reserve price approved by the Tribunal.”

21.   In Fairtex v Tso Pee Hong [2012] 6 HKC 167, the Lands Tribunal (Deputy Judge Yu and Mr. Kwok), having considered a number of authorities in this area (in particular Intelligent House Ltd v Chan Tung Shing & Ors [2008] 4 HKC 421 (LT) and Fineway Properties Ltd v Sin Ho Yuen Victor [2010] 4 HKLRD 1 (CA)), explained the proper approach in the following terms:.

“We agree that ‘age’ and ‘state of repair’ are two separate grounds and even though there may be considerations common to both, we should still consider them separately. We agree that we do not have to formulate any general test for age and state of repair, and would consider if the expert evidence is sufficient to show that the age and state of repair is such state that redevelopment of the relevant lot is justified.”

22.   The Building is now 57 years of age (the occupation permit being issued in 1956). It is of conventional reinforced concrete construction. According to the evidence of Mr. So, the design working life of reinforced concrete framed construction is normally only 50 years. Mr. So says, at [E1/40]:

“Base on my investigation, I am of the opinion that the structural frames of the Building are in need of repair as the Building, constructed with reinforced concrete, has passed its design working life given that the Building was designed for a design working life of 50 years. According to my investigation findings … the Building, completed 56 years ago has exhibited signs that its structural frames have deteriorated to the final stages of their design working life.”

23.   Mr. So also says that there are 9 aspects where the Building cannot meet the current structural engineering design requirements, especially in respect of the requirement on robustness [E1/39-40].

24.   According to Mr. Wong, when compared with more modern buildings, the following features of physical obsolescence in the Building are found:-

(1)   The Buildings has a plain building façade. There are no architectural features and proper overhangs on the building facades at roof and floor levels for weather protection or aesthetical purposes.

(2)   The external walls of the Building are only finished with cement rendering and paintwork, whilst new buildings are finished externally with self-cleaning, durable and stylish materials.

(3)   Individual flat owners have installed windows of different types and colours at different times, resulting in an overall untidy appearance for the façade, whilst new buildings commonly have standardized materials and mutual covenants to control piecemeal alterations.

(4)   The Building has limited circulation areas; whilst building entrances and typical floor lobbies in new buildings in general are more spacious and decently decorated.

25.   Mr. Wong also says that the building is functionally obsolete in various respects due to their age, as follows:-

(1)   Essential fire alarm system, fire hydrants and hose systems required by the current Code of Practice for Minimum Fire Service Installations and Equipment have not been provided in the Building.

(2)   The means of escape in case of fire (in respect of emergency lighting and handrails) are also obsolete and do not comply with many current requirements.

(3)   The Building does not comply with the Code of practice for Fire Resisting Construction (“FRC Code”), which came into force after the Building was constructed, in respect of the quality of the doors separating fire escape staircase from the flats and lack of enclosures of cables in the fire escape staircase.

(4)   Contrary to the current Building (Planning) Regulations, there is no barrier-free access facilities such as accessible ramp from the public pavement for use by physically disabled persons, and there is no space to install an accessible lift.

(5)   Contrary to the present code of practice for the Electricity (Wiring) Regulations, there is no equipotential bonding system provided for a number of fixtures in the common areas.

(6)   The refuse disposal method of the Building is outdated and not hygienic.

(7)   There is no lightning protection system, which is now a standard provision for buildings in Hong Kong.

(8)   The Building is also outdated in terms of building management and communication facilities.

State of Repair

26.   According to both experts (Mr. So and Mr. Wong), it is clearly the case that the Building is also in bad state of repair.

27.   The common areas of the Building and 13 out of 16 flats have also been inspected by Mr. So, who reports that these are a number of defects in the reinforced concrete structural members in 9 units. These defects are generally spalling and cracks in the structural members. There is a summary of these defects in a table at Bundle E1/18-20. The structural defects in the units inspected are all accorded “Severity Index 4 (“detailed investigation required and to provide immediate protective measures if necessary”) or 3 (“detailed investigation required”).

28.   Mr. So further identifies problems with the thickness of concrete cover, alkalinity of the concrete covers (which affords corrosion protection); concrete strength; increased risk of corrosion due to chloride content; reduction of cross-sectional areas due to corrosion.

29.   Mr. So says that “I consider that the structural frames of the Building are deteriorating and they need to be repaired. I also consider that the corrosion of the steel reinforcement bars, and concrete covers being penetrated by carbonation are the results of the age and/or the lack of repair of the Building.” He further adds that, “according to the current condition of the structural frames, the deterioration will continue steadily due to extensive carbonation of the r.c. structural members. It is inevitable that new defects will occur and previous defects though repaired will recur readily, requiring substantial repairs or even partial demolition and re-construction of some defective structural members in the future when, for example, there are unacceptably high reductions in the factors-of-safety, or structural performance factors in the reinforced concrete structural members due to loss of cross-sectional areas of the embedded steel reinforcement bars. Although repairs are possible, repair work will need to be carried out regularly in the future and such repairs will be more and more extensive as the Building becomes order. Also, although the cost of repair may be relatively modest … such costs will escalate in future as the extent and seriousness of the deterioration of the structural members increases with age.” [E1/38].

30.   Mr. Wong reports the state of disrepairs in the various parts of the Building, as follows:

(1)   The state of the external walls is poor where:

(a) There are a number of unauthorized building works:  §§5.4.1-5.4.3 [D1/27-28].

(b) Many windows seem to be installed by unqualified workers and under no qualified supervision. The materials and the installation of these windows were also poor: §5.4.4. [D1/28].

(c) The external appearance of the building elevations is shabby, suffering from natural deterioration:§5.4.5. [D1/28].

(d) There are a total of 165 spots of minor delamination on external wall detected after a non-exhaustive survey: §5.4.6 [D1/29]; and Rapid Infrared Thermographic Survey Report §5 [D1/115].

(e) Given the age of the Building and the condition of the external wall, a complete replacement of the external rendering would be preferable to patch repairs: §5.4.6f [D1/32].

(f) There are multiple of locations of asbestos containing materials at the building: §5.4.7 [D2/293].

(2)   There are also a number of defects in the main roof areas.

(3)   The staircases are also in a poor condition which reflects the general neglect of these areas.

(4)   Of the 11 inspected flats, “… the conditions of the internal finishes in the flats are primarily poor due to natural wear and tear … nearly all flats inspected are below the tenantable standard requiring repair works to be carried out. Many of the defects inside the flats are not mendable by simple and economical repairs. Complete replacements of the defective finishes, components and service installations will be more practical and economical in restoring the flats to tenantable standard.” [D1/42].

(5)   There are also similar problems with the shops. [D1/50-53].

(6)   The fresh water supply system is in serviceable order, although a number of defects are still identified. [D1/55]. On the other hand, the flushing water tanks serving two of the flats have been abandoned. There are also a number of defects identified: § 5.8.3 [D1/55-56].

(7)   A number of defects have also been identified in respect of the aboveground and underground drainage: §§5.9 & 5.10 [D1/57-59].

(8)   The overall condition of the electrical installation is poor. A number of fire service installations are required. A manual fire alarm system, fire hydrant and hose reel system, emergency lighting system and fire resisting enclosures are needed : §5.12 [D1/63-65].

31.   As the Tribunal observed in Fairtex, many of the considerations concerning age and state of repair are common to both. A dilapidated building obviously becomes more dilapidated as time goes by.

32.   In Mr. Wong’s opinion, the total cost of repairs which are immediately needed is $5,713,807. This is very substantial, given that the construction cost of a new similar building is estimated at $13,307,504. In other words, the repair costs would amount to about 42% of the cost of construction of a similar building. It is evidently not economical to repair the Building.

33.   In addition, given the age and lack of repairs in the past, the rate of wear and tear in the Building will increase rapidly with time, and the necessary repairs will take some 16 months.

34.   Also, at the risk of stating the obvious, even if the Building is restored to a tenantable standard after the implementation of the repair works, it will not be able to provide the same quality of accommodation that a new building could offer.

35.   The Applicant submits that on the grounds of both age and state of repair, the Tribunal is entitled to look at all relevant factors collectively to see if that justified redevelopment even though when each of them is considered alone, it is insufficient to do so: Intelligent House, The applicant further submits that this holding is in Intelligent House is obviously correct as it was never doubted in Fineway

36.   For the above reasons, I am satisfied that the redevelopment of the Lot is justified due to the age and state of repairs of the Building.

Reasonable steps to acquire the Respondents’ undivided shares.

37.   As mentioned above, the Applicant had had difficulty of locating the 2^nd Respondent and all reasonable steps have been taken in doing.

38.   An offer of HK$9,200,000 has been made to the 1^st Respondent. That figure represents the redevelopment value apportioned (on EUV ratios) to the Remaining Unit. But given the questionable title of the 1^st Respondent (as explained above), one of the conditions of this offer is that the 2^nd Respondent be joined as a party.

39.   I agree that this offer was plainly reasonable.

Redevelopment Value (“RDV”) of the Lot

40.  Mr. Chan estimated the RDV of the Lot as at 25 November 2012 at $144,946,000 (Bundle C1). Just a few weeks before the trial, Mr. Chan revised his estimated RDV in his Supplementary Report dated 26 April 2013. I have considered both valuation reports. I accept his revised valuation report in which he estimated the RDV of the Lot at $145,859,000. I adopt this as the reserve price for the auction of the Lot.

Conclusion

41.   For the above reasons, the Applicant has demonstrated that all the requirements for an order for compulsory sale have been satisfied and that an order for sale sought by the Applicant should be granted. I made the order accordingly, including that the Building is to be sold for the purpose of redevelopment by way of auction under section 4(1)(b) of the Ordinance, at the reserve price of $145,859,000 under the particulars and conditions substantially the same as those in the draft particular and Conditions of Sale initialed and approved by the Tribunal.