CHEN, LILY v. CHAN, LEO KWONG HO also known as CHAN KWONG HO LEO AND ANOTHER

CHEN, LILY v. CHAN, LEO KWONG HO also known as CHAN KWONG HO LEO AND ANOTHER

The Striking Out Application was dismissed because it was not plain or obvious that the Partition Application was bound to fail; a co-owner may enforce statutory rights under the Partition Ordinance independently of ongoing matrimonial proceedings, and the absence of Family Court power to order interim sale does not prohibit relief under a different statute; therefore the Partition Application is not frivolous, vexatious or an abuse of process.

Citation
[2018] HKCFI 2518
Parties
Applicant: CHEN, LILY; 1st Respondent: CHAN, LEO KWONG HO (also known as CHAN KWONG HO LEO); 2nd Respondent: CHAN KING YIU
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 November 2018
Case Number
HCMP155/2018
Procedural Posture
Partition Application Under the Partition Ordinance (high Court) / Striking Out Application Heard and Dismissed; Originating Summons Adjourned for Substantive Hearing With Directions
Outcome
Striking Out Application dismissed; Partition Application to proceed to substantive hearing; costs awarded to applicant to be summarily assessed; directions given for further pleadings and hearing date.
Legal Topics
Partition, Sale of Co Owned Property, Abuse of Process, Striking Out, Ancillary Relief, Jurisdiction
Source Language
EN
Property Law Family Law Civil Procedure Partition Sale of Co Owned Property Abuse of Process Striking Out Ancillary Relief +1 more

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Parties

CHEN, LILY

Applicant

CHAN, LEO KWONG HO (also known as CHAN KWONG HO LEO)

1st Respondent

CHAN KING YIU

2nd Respondent

Procedural Posture

Partition Application Under the Partition Ordinance (high Court) / Striking Out Application Heard and Dismissed; Originating Summons Adjourned for Substantive Hearing With Directions

Legal Issues

  1. 1 Whether the Partition Application is frivolous, vexatious or an abuse of process warranting striking out or stay
  2. 2 Whether the Family Court's lack of power to order interim sale precludes a Partition Ordinance application in the High Court
  3. 3 Whether the applicant, as a joint tenant, may enforce statutory rights to sale and distribution independently of matrimonial proceedings

Ratio Decidendi

The Striking Out Application was dismissed because it was not plain or obvious that the Partition Application was bound to fail; a co-owner may enforce statutory rights under the Partition Ordinance independently of ongoing matrimonial proceedings, and the absence of Family Court power to order interim sale does not prohibit relief under a different statute; therefore the Partition Application is not frivolous, vexatious or an abuse of process.

Court Disposition

Striking Out Application dismissed; Partition Application to proceed to substantive hearing; costs awarded to applicant to be summarily assessed; directions given for further pleadings and hearing date.

Orders

  • Striking Out Application dismissed
  • Costs of the Striking Out Application to be paid by the respondents to the applicant, to be summarily assessed