ON GRAND INVESTMENT LTD v. SPARKWAY LTD AND OTHERS

LDCS 19000/2018

[2020] HKLdT 38

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE MAIN APPLICATION NO 19000 OF 2018

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JUDGMENT

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BACKGROUND

1.  This is the applicant’s 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 section F of Inland Lot No 713 (“1^st Lot”) and the Remaining Portion of Inland Lot No 713 (“2^nd Lot”) (1^st Lot and 2^nd Lot are collectively referred to as “the Lots”) together with a building erected thereon known as Nos 27E and 27F Robinson Road, Hong Kong (“the Building”).

2.  The Building comprises a 6-storey tenement block served by a common staircase. Occupation permit No H23 was issued for the Building on 5 February 1960, granting permission to occupy its ground floor (“G/F”) as garages for non‑domestic purposes, and its 1^st Floor (“1/F”) to 5^th Floor (“5/F”) inclusive as European type flats for domestic purposes.  According to the approved building plans of the Building, there are 2 garages planned on G/F, and 2 domestic units planned on each of 1/F to 5/F. With reference to the records of the Land Registry, the garage of No 27F Robinson Road has been subdivided into 3 sub-units.

3.  The 1^st Lot together with part of the Building (i.e. No 27E Robinson Road) standing thereon was allocated 6 undivided shares. The G/F and each of the upper floors was given 1 undivided share, making up a total of 6 undivided shares.

4.  The 2^nd Lot together with part of the Building (i.e. No 27F Robinson Road) standing thereon was also allocated 6 undivided shares. Each of the 3 sub-units on G/F was given 1/3 of 1 undivided share and each of the upper floors was given 1 undivided share, making up a total of 6 undivided shares.

SECTION 3 OF THE ORDINANCE – OWNERSHIP OF THE APPLICANTS

5.  At the time of filing of the Notice of Application (“NOA”) on 8 August 2018, there were 3 respondents and the applicant owned on average 80.55% undivided shares in the Lots (i.e. 5 out of the total 6 undivided shares in 1^st Lot and 4 and 2/3 out of the total 6 undivided shares in 2^nd Lot), more than the threshold of 80% required for building aged 50 years or above.

6.  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%.  In addition, section 3(2)(b) of the Ordinance prescribes that, without prejudice to the operation of section 3(5), an application may cover 2 or more lots on which 1 building is connected to another building by a staircase intended for common use by the occupiers of the buildings, and where the average of (A) the percentage of the undivided shares owned by the majority owner in the lot or lots on which 1 of the buildings stands; and (B) the percentage of the undivided shares owned by the majority owner in the lot or lots on which the other of the buildings stands, is not less than the percentage specified in section 3(1).

7.  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. 

8.  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”

9.  Since the occupation permit of the Building was issued in 1960, i.e. more than 50 years before the date of application (i.e. 8 August 2018; the relevant date under the Notice), the applicable percentage is therefore 80%.

10.  I am satisfied that as at the date of application, the applicant owned on average more than 80% of the undivided shares in the Lots. I am therefore satisfied the applicant is entitled to make the present application under section 3 of the Ordinance.

THE REMAINING RESPONDENTS

11.  At trial, the applicant still owns on average 80.55% undivided shares in the Lots. The following 3 respondents remain in the present action: -

Respondent		Premises
1st Respondent	(“R1”)	2nd Floor (“2/F”) of No 27E Robinson Road
2nd Respondent	(“R2”)	5/F and Roof of No 27F Robinson Road
3rd Respondent	(“R3”)	Garage A on G/F of No 27F Robinson Road

12.  The applicant has acquired the entire issued shareholding of R1, which is now a company fully controlled by the applicant. Nevertheless, since R1 is a legal entity separate from the applicant, the applicant cannot and has not discontinued the proceedings against R1.

13.  R2, represented by Mr Leung, is the only active respondent in these proceedings.  Mr Leung submits that the only point in contention between the applicant and R2 is the existing use value (“EUV”) of the Building and the redevelopment value (“RDV”) of the Lots.  R2 takes issue about the use of the G/F units of the Building in particular, but R2 no longer relies on the issue of an “Emergency Vehicular Access” (“EVA”) that had been raised in Mr Leung’s opening submissions and the witness statement and valuation reports filed by R2.

14.  R3 is legally represented, and has withdrawn its Notice of Opposition with leave of the tribunal.

ISSUES FOR DETERMINATION BY THE TRIBUNAL

15.  The remaining issues to be decided in this case are as follows:

1)   What was the respective market value of each property in the Lots (a) on a vacant possession basis; (b) assessed as if the Lots could not be made the subject of an application for an order of sale; and (c) not taking into account the redevelopment potential of the property or the Lots (i.e. EUV of each unit in the Building) as at 9 July 2018, the valuation date adopted in the Application Valuation Report dated 9 July 2018, 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 applicant has 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. RDV of the Lots for the purpose of auction sale)?

DETERMINATION OF THE EUV OF ALL UNITS IN THE BUILDING

16.  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.”

17.  There are disputes between R2 and the applicant on both the EUV and the RDV valuations.  R2 relies on the reports and valuations prepared by Mr Wong Yung Shing (“Mr YS Wong”) of Dynasty Premium Asset Valuation & Real Estate Consultancy Limited, whilst Ms Dorothy Chow of Jones Lang LaSalle Limited is appointed by the applicant.

18.  Before the trial, the valuation experts have prepared two joint statements on agreement and disagreements. In the EUV valuation, they have adopted direct comparison method, G/F of No 27E Robinson Road as G/F reference unit and 3^rd floor (“3/F”) of No 27E Robinson Road as upper floor reference unit. They have further agreed at trial some of the adjustment factors and valuation parameters, which have narrowed down many differences between the parties.

EUV of G/F Units

19.  In the valuation of G/F units, the valuation experts agree on the adjustment for time with reference to the price indices for private retail property, the adjustment for frontage at 2% per 1-meter difference, the adjustment for size at 1% per 5-square meter difference, the adjustment for headroom at 2% per 1-meter difference and the adjustment for age at 1% per 5-year difference. They also agree on the adoption of 7 common comparables and the adjustments for location and layout to them.  However, they disagree on the adoption of Comparable ES1 proposed by Ms Dorothy Chow, the adjustment for return frontage of Comparable ES2 and the adjustment for layout of Garage A on G/F of No 27F Robinson Road.  They also disagree on whether multiplication or summation method should be applied in the adjustment process, and whether the G/F units should be valued as shops or garages, and if the G/F units are valued as shops, whether there should have an adjustment for building facility proposed by Mr YS Wong.

20.  On the condition that Comparable ES8 is a common comparable adopted by both valuation experts, I agree that Comparable ES1, which is situated next to Comparable ES8 and was transacted close to the valuation date (i.e. 9 July 2018), should also be adopted in the assessment. Regarding the return frontage of Comparable ES2, I agree with Ms Dorothy Chow to make an adjustment at -3% only instead of -10% proposed by Mr YS Wong, because it abuts on a public staircase only without entrance. Regarding the layout of Garage A on G/F of No 27F Robinson Road which is owned by R1, I agree with Mr YS Wong to make nil adjustment because there is no evidence to prove that it is a L-shaped unit as shown on the approved building plan.  In fact, it is a regular unit in the assignment plan.  Its dimensions as shown on the approved building plan and the assignment plan are also different. Although the valuation experts have agreed on its effective saleable area for settlement purpose, they have not inspected it. 

21.  Regarding the adjustment process, I am of the view there is no significant difference between the end results derived by summation and multiplication methods if the magnitudes of the adjustments are not great, and therefore more important is the accuracy of the adjustment factors. I consider both methods do have its shortcomings.  When a valuer converts a dollar adjustment derived from the market to a percentage adjustment, some adjustments may be considered independently but some other adjustments may be considered collectively, but different valuer may have different thinking process.  Normally, layout adjustment is independent from the other adjustments that justify the adoption of summation method, but time adjustment would affect the other adjustments collectively that justify the adoption of multiplication method. The valuation profession may need research in this regard, but for the time being I prefer the multiplication method that are commonly adopted in the recent judgments of the tribunal.

22.  There is no dispute the G/F units are named as garage in the records of the Land Registry; they were planned as garage in the approved building plans and the occupation permit; there is no record that there was any change of use of these premises approved by the Building Authority; and the Building is situated in an area zoned Residential (Group B) where commercial uses serving the residential neighbourhood may be permitted only on application to the Town Planning Board. In the circumstances, Mr Leung submits the G/F units should be valued as garage as proposed by Mr YS Wong.

23.  Whilst, Ms Ngai, counsel for the applicant, submits they should be valued as shop as opposed to garage because they have long been occupied as shops, they have been blocked for parking purpose by railing erected by Government along the pavement immediately in front of them, and Building Authority should have been aware of their uses as shop but no enforcement action has been taken. Ms Ngai further submits Ms Dorothy Chow’s opinion in this respect is in line with the “market reality” approach endorsed by the tribunal in a number of its judgments. Ms Dorothy Chow opines that the non-conforming use as shop of these G/F units do not impact or reduce their value, particularly in the flourishing market as at the valuation date.

24.  Following the “market reality” approach, I agree the G/F units should be valued as shop. Both a willing seller and a willing buyer would negotiate the price of them based on the use as shop instead of garage. Although the current use of them as shop is contrary to the occupation permit of the Building, it is accepted by R2 that the changing of usage contrary to the occupation permit is not illegal on its own[1].  Nevertheless, I consider the permitted use as garage only in the occupation permit of these G/F units would to a certain extent limit their actual usage.  It is accepted by Ms Dorothy Chow that if the intended use of these G/F units require specific licences e.g. licences from Food and Environment Hygiene Department, it would trigger the need of getting approval from the authorities such as Buildings Department. There is also a record that an application for approval to change the usage of Garage C on G/F of No 27F Robinson Road to fast food shop was rejected by the Town Planning Board. 

25.  On the conditions that the current occupation permit and town planning zoning of the Building would to a certain extent limit the usage of these G/F units, their change of use officially would incur time and costs for preparation and application, and the successful chance for their change of use to be approved by both the Building Authority and the Town Planning Board is uncertain, I consider there should have a discount of say 10% to their market value even in the then flourishing market.  However, I disagree to adopt a downward adjustment at 40% for building facilities proposed by Mr YS Wong because the G/F units are connected with utilities including the supply of water and electricity.

26.  By applying the agreements between the valuation experts and the determinations above, the valuation of the G/F reference unit is listed in Appendix I of the judgment. The average adjusted unit rate is $449,676 and the average excluding the highest (i.e. Comparable ES7) and the lowest (i.e. Comparable ES2) comparables is $452,096. The G/F reference unit is assessed at $450,000 per square meter saleable.

27.  The valuation of the G/F units is listed in Appendix II of the judgment. The sub-total EUV of the G/F units in the Building is determined at $50,410,000.

EUV of Domestic Units

28.  In the valuation of upper floor domestic units, the valuation experts agree on the adjustment for time with reference to the price indices for private domestic (Class A, B & C), the adjustment for size at 1% per 10-square meter difference, the adjustment for age at 0.25% per 1-year difference, the adjustment for floor at 2% per floor difference, and the adjustment for privacy and noise to the comparables on G/F at 5% and 2% respectively. They also agree on the adoption of 11 common comparables and the adjustments for location and lighting / ventilation to them.  However, they disagree on the adoption of Comparables ED12 and ED13 proposed by Mr YS Wong, the adjustment for view to Comparable ED1, the conversion rate for the roof, and the adjustment for top floor.  They also disagree on the method to count the actual level of the comparables and the units in the Building, and whether multiplication or summation method should be applied in the adjustment process.

29.  As discussed in the valuation of G/F units above, I prefer the adoption of multiplication method in the adjustment process.  In addition, I agree with Ms Dorothy Chow not to adopt Comparables ED12 and ED13 because they might be affected by site assembly and there are also a number of other common comparables.

30.  With the benefit of site inspection together with the parties, I agree with Ms Dorothy Chow to adjust for view to Comparable ED1 at 3% instead of 5% proposed by Mr YS Wong.  Nonetheless, I agree with Mr YS Wong the conversion rate for roof at 1/6 instead of 1/8 proposed by Ms Dorothy Chow. Further, although I agree with Ms Dorothy Chow to make adjustment for top floor but the rate should be 3% only instead of 5%.  I consider that the top floor of aged building is more susceptible to heat and water penetration from the roof and the Building has no exception. Whilst, the subject roof that enjoys certain extent of privacy, exclusivity and connectivity to the unit on 5/F could command a higher conversion rate.  In the circumstances, the roof of Comparables ED3 and ED5, which have not been inspected internally, should better be converted at 1/6 too for comparison purpose.

31.  Regarding the method to count the actual level of the comparables and the units in the Building, I agree with that proposed by Ms Dorothy Chow.  Although it is not an issue to name the G/F as Level 0 proposed by Ms Dorothy Chow or Level 1 proposed by Mr YS Wong, it is reasonable for Ms Dorothy Chow to consider the high ceiling height of G/F in the Building and some comparable buildings, and the main entrance on G/F in the building of Comparable ED1 is actually about 1 level above Robinson Road. 

32.  Nonetheless, although the valuation experts have agreed on the adjustment for internal condition of the domestic units in the Building at the rates of 0% for good, -5% for reasonable, -6% for fair, -7% for poor and -8% for poor originally proposed by Mr YS Wong, all these look odd and illogical. The difference between the grade of good and reasonable is 5% but the difference between the subsequent grade is 1% only.  In fact, Ms Dorothy Chow had rightly commented in her Rebuttal Report dated 30 August 2019 that such adjustments are inappropriate and highly skewed but she subsequently agreed to them for settlement purpose, which appears in favour of the applicant.

33.  I must reiterate that every expert has a duty to court as declared by him / her, and should not exploit the negligence, or ignorance, of the others.  In these proceedings, although the adjustment for internal condition are agreed by the two valuation experts, there is at least another respondent R3 on record.  Given that the internal condition of the upper floor reference unit is finally agreed as fair only and that of the comparables was unknown, I consider it is reasonable and appropriate to adjust the internal condition at +4% for good, +2% for reasonable, 0% for fair, -2% for poor and -4% for very poor.

34.  By applying the agreements between the valuation experts and the determinations above, the valuation of the upper floor reference unit is listed in Appendix III of the judgment. The average adjusted unit rate is $162,866 and the average excluding the highest (i.e. Comparable ED5) and the lowest (i.e. Comparable ED3) comparables is $163,316. While I note that both Comparables ED5 and ED3 have been adjusted for top floor and roof, the upper floor reference unit is assessed at $163,400 per square meter saleable, same as that proposed by Ms Dorothy Chow.

35.  The valuation of the upper floor units is listed in Appendix IV of the judgment. The sub-total EUV of the upper floor units in the Building is determined at $143,740,000.

EUV of All Units in the Building

36.  The EUV of the Building is determined at $194,150,000 (i.e. $50,410,000 + $143,740,000). The respective EUV of all units in the Building as at the relevant date of valuation, i.e. 9 July 2018, and adopted by this tribunal are appended below: -

Address	Floor	Unit	EUV
No 27E Robinson Road	G	-	$25,940,000
No 27F Robinson Road	G	Garage A	$7,680,000
No 27F Robinson Road	G	Garage B	$7,990,000
No 27F Robinson Road	G	Garage C	$8,800,000
No 27E Robinson Road	1	-	$15,640,000
No 27F Robinson Road	1	-	$15,310,000
No 27E Robinson Road	2	-	$15,190,000
No 27F Robinson Road	2	-	$14,290,000
No 27E Robinson Road	3	-	$14,600,000
No 27F Robinson Road	3	-	$14,290,000
No 27E Robinson Road	4	-	$14,020,000
No 27F Robinson Road	4	-	$14,000,000
No 27E Robinson Road	5	-	$12,520,000
No 27F Robinson Road	5	-	$13,880,000

37.  I therefore accept the total EUV of the Building is $194,150,000. 

SECTION 4(2) OF THE ORDINANCE - JUSTIFICATION AND REASONABLE STEPS

38.  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).”

39.  The applicant 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

40.  The applicant adduces expert evidence of Mr Wong Chi Ming (“Mr CM Wong”), a structural engineer, of CM Wong & Associates Limited, and Mr Wong Wing Cheung Dennis (“Mr Dennis Wong”), a building surveyor, of Prudential Surveyors International Limited. Mr CM Wong conducted a structural survey of the Building and prepared a Structural Assessment Report dated 27 June 2019.  Mr Dennis Wong conducted a condition survey of the Building and prepared a Condition Survey Report dated 28 June 2019. 

41.  None of the respondents adduced expert evidence to rebut the reports complied by Mr CM Wong and Mr Dennis Wong.

42.  Having considered the reports of Mr CM Wong and Mr Dennis Wong, I accept their expert opinion. The Building, being erected more than 60 years ago, is in poor condition and has come to the end of its design 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.

43.  I am also of the view the Building is in poor state of repair and the costs of repair to bring the Building to tenable condition is disproportionate to the costs of redevelopment.   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. In addition, although regular repair can extend the life of the Building, repair costs will increase with time.

44.  By reason of the matters set out above, I am satisfied the redevelopment of the Building is justified.   

Whether the applicant has taken reasonable steps

45.  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…”

46.  The applicant has successfully reached a settlement agreement with R1 and now owns R1’s unit indirectly by acquiring the entire issued shareholding of R1.

47.  The applicant has made 3 rounds of offer to R2 and R3 on 19 July 2018, 16 January 2020 and 9 March 2020.  Ms Ngai submits that these offers are fair and reasonable because they were determined by reference to the independent valuation of Ms Dorothy Chow, are higher than the EUV of R2’s unit and R3’s unit assessed by Ms Dorothy Chow and the 3^rd offer prices have also included a premium over Ms Dorothy Chow’s assessment.

48.  I consider it is not meaningful to compare the offers at various dates with the EUV assessed as at 9 July 2018 only. No doubt, respondents in this case would be interested in offer price based on their proportional share of the RDV instead of the EUV.  Nonetheless, since all the offer prices have reflected the then proportional share of the RDV attributable to the respective units as assessed by Ms Dorothy Chow, the 1^st and 3^rd offer prices have also included a premium over her then valuation, and there is no evidence that Ms Dorothy Chow’s valuations were at serious fault, I consider the applicant’s offers fall within the range of what may broadly be regarded as fair and reasonable compensation for the interest in question.

49.  By reason of the matters set out above, I am satisfied that the applicant took reasonable steps to acquire all the undivided shares of the Lots.

RESERVE PRICE FOR THE AUCTION

50.  By reason of being satisfied that redevelopment of the Lots is justified and that the applicant has 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 applicant.

51.  The valuation experts prepared their respective RDV assessment in July 2019. Ms Dorothy Chow subsequently updated it as at 5 March 2020, whereas Mr YS Wong did not provide his updated RDV assessment directly. R2 had confirmed in writing that it would not file and exchange any expert report on the updated RDV in these proceedings. However, when Mr YS Wong commented on Ms Dorothy Chow’s RDV assessment as at 5 March 2020 in the 2^nd joint expert statement, he provided a RDV assessment as at 16 March 2020 indirectly by both a review of his 1^st RDV assessment and a so-called accommodation value (“AV”) comparison. As rightly admitted by Mr Leung at trial, such way of submissions is unsatisfactory.

52.  I am of the view Mr YS Wong’s RDV assessment as at 16 March 2020 is not acceptable at all.  After his review which was limited to his observation of the property market in general only, he considered his RDV assessment as at 31 July 2019 in the sum of $349,424,609 could be maintained as at 16 March 2020, but he had not done any search of comparable transactions and had not made adjustments in accordance with the price indices available in the market.  Further, his AV comparison method is in fact an unprecedented residual method, which had included the analyses of listed prices, instead of transaction prices, of some units in The Richmond, a nearby new residential development.  In any event, I consider his AV comparison method may at the most indicate the profitability of The Richmond only, but could not reflect the site value of the Lots as at the valuation date.

53.  Nevertheless, the valuation experts agree on a registered site area of 355.10 square meter and a maximum plot ratio of 5 upon redevelopment.

54.  In the updated RDV assessment of Ms Dorothy Chow, she proposes a 19-storey residential building with G/F planned for plant room, garden and domestic entrance lobby, 1/F planned for club house, and 2/F to 18^th floor (“18/F”) planned for domestic units including a special domestic unit on the 18/F.  By comparison with the recent transactions in Gramercy at No 38 Caine Road, 28 Aberdeen Street at No 28 Aberdeen Street and The Richmond at No 62C Robinson Road, she derives a gross development value in the sum of $436,824,720 at an average unit rate of $372,000 per square meter saleable.  In her residual valuation, she adopts the demolition cost at $4,336,462, the construction period of 3 years and the interest rate at 5% per annum previously proposed by Mr YS Wong, but she maintains her view on the marketing cost at 4%, the construction cost at 77,656,683 (i.e. on the basis of high to very high quality and with allowance for small development scale; on average $43,738 per square meter gross) and the developer’s profit at 20% that are disputed by Mr YS Wong. 

55.  After reviewing the residual valuation as at 5 March 2020 prepared by Ms Dorothy Chow, I accept her assessment generally. However, it is odd to note again that she accepts the valuation parameters, which have been criticized by her in the Rebuttal Report, and she has not explained why she changed her mind in such a short period. Similar to the adjustment for internal condition in the EUV assessment, the agreed demolition cost, construction period and interest rate appear to be in favour of the applicant. 

56.  I consider there is no compelling reason not to accept the demolition cost at $2,311,452 and the construction period of 2.75 years previously proposed by Ms Dorothy Chow.  Ms Dorothy Chow should have carried out her research before she adopted such data in her 1^st RDV assessment.  Whilst, since the interest rate in general has been dropping, I consider it is reasonable to adopt the interest rate at 4% per annum only. Nevertheless, I accept the marketing cost at 4% for such development project, the construction cost at $77,656,683 that is supported by building data and the developer’s profit at 20% (i.e. without further allowance of stamp duty and legal cost on residual land value). I agree a higher percentage of developer’s profit is justified in the then uncertain market.

RDV of the Lots as at 5 March 2020

57.  Based on the agreement between the two valuation experts and the above determinations, the residual valuation of the Lots as at 5 March 2020 is listed in Appendix V of the judgment.  The Lots are assessed at $234,000,000, equivalent to an accommodation value of about $131,793 per square meter (i.e. about $12,244 per square foot), which should be the reserve price for public auction.

ORDERS

58.  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) Ms Anna SH Chow and Mr Anthony WK Chow, nominated by the applicant, 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 Guantao & Chow dated 20 February 2020;

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 $234,000,000;

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 applicant, the respondents, and the Trustees to apply to the tribunal for further directions.

COSTS

59.  Following Good Faith [2], I make a costs order nisi that the applicant do pay costs of these proceedings, except the costs of and occasioned by R2’s argument on the issue of an EVA, to the respondents on High Court scale, with certificate for counsel, including any reserved costs, to be taxed if not agreed, and there be no order as to costs of and occasioned by R2’s argument on the issue of an EVA.  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.

60.  It was alleged by R2 and its valuation expert, Mr YS Wong, that the EVA of Wellesley, a new development immediately next to the Lots, was less than 6 meters in width and there was town planning requirement that the main entrance of Wellesley had to be widened and moved westward to the Lots. In such circumstances, Mr YS Wong opined that, by obtaining an order for sale of the Lots for redevelopment, the developer of Wellesley, which is related to the applicant, would be able to make use of a portion of the Lots for widening the EVA of Wellesley to 6 meters for complying with the said town planning requirement, and therefore R2’s unit should have an additional value attributable to the applicant’s acquisition of this access land in favour of Wellesley.

61.  No doubt, R2’s argument in this regard is unacceptable at all. If R2 and/or Mr YS Wong had carried out brief research to verify the then facts, this argument could have been dropped much earlier. In fact, the said town planning requirement comprised of site areas other than that of Wellesley and was not relied on when Wellesley was developed; some units in Wellesley were pre-sold in 2016; an occupation permit was issued for Wellesley on 26 October 2018; and sales of some units in Wellesley were completed in 2019 before Mr YS Wong prepared his 1^st valuation report.

62.  R2 withdrew this argument at trial only, but then the applicant has already spent considerable costs in reply. I accept the compensation approach of costs in compulsory sale case and the minority owners should have the right to explore every possible compensation, but all the claims should at least appear reasonable. It is not difficult to verify the facts in this regard, but R2 had been maintaining its stance until the trial.  In the circumstances, I am of the view it is fair and equitable to have no order as to costs of and occasioned by R2’s argument on the issue of an EVA.