PUN JONG SAU AND OTHERS v. POON WING KONG AND OTHERS
|IN THE HIGH COURT OF JUSTICE ||1976 No. 1750 |
|BETWEEN || || |
| ||PUN JONG SAU ||1st Plaintiff |
| ||PUN CHING WA ||2nd Plaintiff |
| ||POON WING CHUNG ||3rd Plaintiff |
| ||POON WING KAI ||4th Plaintiff |
| ||LILY RUTH POON |
(suing on behalf of and as representing the estate of Poon Wing Ting, deceased)
|5th Plaintiff |
| || |
| ||POON WING KONG ||1st Defendant |
| ||SAMUEL POON CHING SUN ||2nd Defendant |
| ||JASON POON CHING TSO ||3rd Defendant |
| ||VICTOR POON CHING SAI ||4th Defendant |
| ||THE ATTORNEY GENERAL ||5th Defendant |
Coram: Trainor, J.
Date of Judgment: 15 June 1979
1. The plaintiffs in these proceedings seek an order that leasehold property which all the parties, save the Attorney General, hold as tenants in common be partitioned or, in the alternative, that there be an order for sale. In fact what the plaintiffs want is an order for sale.
2. Originally the proceedings were instituted by the first and second plaintiffs against the remaining parties, the Attorney General being added simply to comply with the provisions of the Partition Ordinance. All the defendants entered an appearance but later the proceedings were amended and the original 1st and 7th defendants became the 3rd and 4th plaintiffs. The 6th defendant died and his personal representative became the 5th plaintiff.
3. The premises in question are known as 82 and 84 To Kwa Wan Road, Kowloon, and a building which is four storeys high in front and six storeys high at the rear has been erected on them. The premises are held on a lease from the Hong Kong Government but are occupied by the Hing Wah Battery Factory (Hong Kong) Limited. How that company occupies the premises I do not know, but I was told that for its occupancy it pays a sum of money bi-annually, and it is common case that the occupancy may be determined by six months notice to quit.
4. The issue between the parties is narrow. It is the contention of the plaintiffs that they, being co-owners of the property are "eligible", and that is the word used by Mr. Waite leading counsel for the plaintiffs as descriptive of their right, by virtue of the Partition Ordinance to apply for the relief they seek. In the circumstances of the case, he maintains, they are entitled, subject to the Court"s discretion, to an order for sale.
5. Mr. Ching, leading counsel for the defendants, maintains that an order for sale may only be made where the circumstances are such that an order for partition could be made but by reasons of the provisions of the Ordinance the Court considers that a partition would not be beneficial to all the persons interested in the property. In other words, sale is only an alternative to partition when partition is a permissible relief.
6. Only one witness was called. He was called by the plaintiffs and his evidence was substantially accepted by the defendants. He said that, theoretically, it would be possible physically to partition the property but he did not think it would be practicable; parts would have to be held in common and it would result in something totally uneconomical. Partition could not be effected without structural alterations and that would require the building of walls and, possibly, staircases.
7. The proceedings are brought under the Partition Ordinance, to which I shall refer as the Ordinance, and it is common case that under it a co-owner may apply for partition and sale of the property he holds with others or one or other of these reliefs.
8. Opening the case for the plaintiffs Mr. Waite said that the building with which this case is concerned was built in two periods. The first part was completed in 1953 and the second in 1958; comparatively old buildings by Hong Kong standards. He said the occasion is ripe for their demolition and reconstruction and that on reconstruction the floor space of 6,300 square metres could be increased to 15,800 square metres. At the moment (and both counsel were roughly in agreement on this) the value of the premises with vacant possession is approximately $20,000,000. The interest of the five plaintiffs in the property represents almost 80% leaving 20% approximately to the four defendants. It was Mr. Waite con-tention that on a proper construction of the Ordinance the circumstances of the case are such that an order for sale is a proper order to be made.
9. To support his contention Mr. Waite suggested that it would be helpful to refer to the early law pertaining to partition in England and Hong Kong, later legislation in England and the Ordinance; it would be helpful to look at the development of the right of co-owners to partition as it indicates the philosophy behind the development.
10. Originally partition was a matter of common-law and only available to coparceners. By the Act 31 Henry VIII c.1 the right was extended to joint tenants and tenants in common in freehold estates of inheritance. By the Act 32 Henry VIII s.32 the right was further extended to include co-owners whose interest was in a life estate or a term of years, but that Act provided that partition would not be ordered if it were prejudicial to persons who were not parties to the proceedings.
11. That was the position in England until the Partition Act, 1868 was enacted, and in Hong Kong until the Ordinance was enacted in 1969.
12. The Partition Act, 1868, which did not apply to Hong Kong, further liberalised the position in England by providing for the sale of the property and, indeed, in certain circumstances making an order for sale almost obligatory. The extent of the liberalisation may be appreciated from the relevant sections:
| ||"3. In a suit for partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if it appears to the Court that, by reason of the Nature of the Property to which the Suit relates, or of the number of the parties interested or presumptively interested therein ... or of any other circumstances, a Sale of the Property and a Distribution of the Proceeds would be more beneficial for the Parties interested than a Division of the Property between or among them, the Court may, if it thinks fit, on the Request of any of the Parties, and notwithstanding the Dissent ... of any others of them, direct a Sale of the Property accordingly, and may give all necessary or proper consequential Directions. || |
| ||4. In a suit for Partition where, if this Act had not been passed, a Decree for Partition might have been made, then if the Party or Parties interested, individually or collectively, to the Extent of One Moiety or upwards in the Property to which the Suit relates, request the Court to direct a sale of the Property and a Distribution of the Proceeds instead of a Division of the Property ... the Court shall, unless it sees good Reason to the contrary, direct a Sale of the Property accordingly, and give all necessary or proper consequential Directions. || |
| ||5. In a Suit for Partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if any party interested in the Property to which the Suit relates requests the Court to Direct the Sale of the Property and a Distribution of the Proceeds instead of a Division of the Property ... the Court may, if it thinks fit, unless the other Parties interested in the Property, or some of them, undertake to purchase the share of the party requesting a Sale, direct a Sale ... and give all the necessary and proper consequential Directions, and in case of such Undertaking being given the Court may order a Valuation of the Share of Share of the Party requesting a Sale in such manner as the Court thinks fit, and may give all necessary or proper consequential Directions." || |