CHAN CHING KIT KATHERINE v. LAM SIK SHI

CHAN CHING KIT KATHERINE v. LAM SIK SHI

On an informed interpretation of section 3(1) of the Partition Ordinance the words "person interested" do not include an equitable chargee of a co-owner who has no right to possession or foreclosure; therefore the plaintiff lacks locus to seek an order for sale of the entire property under Cap.352; accordingly the plaintiff's application for sale under the Ordinance is dismissed, but a receiver by equitable execution may be appointed as alternative relief.

Citation
CHAN CHING KIT KATHERINE v. LAM SIK SHI
Parties
Plaintiff: CHAN CHING KIT KATHERINE; 1st Defendant: LAM SIK SHI; 2nd Defendant: LAM SIK YING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 June 2002
Case Number
HCMP2239/2000
Procedural Posture
Originating Summons to Enforce Charging Order / Partition Ordinance Proceedings (hcmp 2239/2000) / Hearing and Judgment on Originating Summons
Outcome
Plaintiff's application for order for sale under the Partition Ordinance dismissed for want of locus; receiver by equitable execution appointed to collect 1st defendant's share of rents and profits; costs orders nisi made
Legal Topics
Charging Order, Partition Ordinance (cap.352), Locus Standi, Order for Sale, Appointment of Receiver, Equitable Charge, Interpretation of Statute
Source Language
EN
Property Law Family Law Civil Procedure Equity Statutory Interpretation Charging Order Partition Ordinance (cap.352) Locus Standi +4 more

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Parties

CHAN CHING KIT KATHERINE

Plaintiff

LAM SIK SHI

1st Defendant

LAM SIK YING

2nd Defendant

Procedural Posture

Originating Summons to Enforce Charging Order / Partition Ordinance Proceedings (hcmp 2239/2000) / Hearing and Judgment on Originating Summons

Legal Issues

  1. 1 Whether an equitable chargee by virtue of a charging order is a "person interested" under section 3(1) of the Partition Ordinance and therefore has locus to apply for sale of the whole property
  2. 2 Whether the grammatical/plain meaning of "person interested" should be adopted or an informed interpretation informed by pre-enacting and enacting history
  3. 3 Whether, if eligible, the court should exercise its discretion to order sale of the property

Ratio Decidendi

On an informed interpretation of section 3(1) of the Partition Ordinance the words "person interested" do not include an equitable chargee of a co-owner who has no right to possession or foreclosure; therefore the plaintiff lacks locus to seek an order for sale of the entire property under Cap.352; accordingly the plaintiff's application for sale under the Ordinance is dismissed, but a receiver by equitable execution may be appointed as alternative relief.

Court Disposition

Plaintiff's application for order for sale under the Partition Ordinance dismissed for want of locus; receiver by equitable execution appointed to collect 1st defendant's share of rents and profits; costs orders nisi made

Orders

  • Dismissal of plaintiff's application for sale of the Property under the Partition Ordinance (Cap.352)
  • Order appointing a receiver by way of equitable execution to receive the 1st defendant's share of rents and profits of the Property; precise terms to be finalised on draft by plaintiff