BRISILVER INVESTMENT LTD. v. WONG CHO MUI

BRISILVER INVESTMENT LTD. v. WONG CHO MUI

The Court has jurisdiction under the Partition Ordinance to order a sale of the suit property even though part is owned by a tso; in the absence of evidence that customary prohibitions extend to outsiders, unanimous consent of tso members is not required to bar a court-ordered sale; section 15 NTO applies to disposals by a tso manager and does not prevent a court from ordering sale without the Secretary for Home Affairs' consent.

Citation
BRISILVER INVESTMENT LTD. v. WONG CHO MUI
Parties
Plaintiff: Plaintiff; 1st Defendant (one Third Co Owner): 1st Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 July 2000
Case Number
HCMP2038/1997
Procedural Posture
Partition Action Under Partition Ordinance (cap. 352) / Interlocutory Determination on Jurisdiction and Consent Issues (pre Trial Application)
Outcome
Application allowed; both issues answered in favour of the Plaintiff; Plaintiff entitled to costs of the application
Legal Topics
Partition, Order for Sale, Tso (clan) Land, Chinese Customary Law, Jurisdiction, Consent of Secretary for Home Affairs, Unanimous Consent of Tso Members, Article 40 Basic Law
Source Language
EN
Property/land Law Administrative/constitutional Law Civil Procedure Partition Order for Sale Tso (clan) Land Chinese Customary Law Jurisdiction +3 more

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Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant (one Third Co Owner)

Procedural Posture

Partition Action Under Partition Ordinance (cap. 352) / Interlocutory Determination on Jurisdiction and Consent Issues (pre Trial Application)

Legal Issues

  1. 1 Whether the Court has jurisdiction under the Partition Ordinance (Cap. 352) to order sale of property partly owned by a tso given the New Territories Ordinance (Cap. 97) and Article 40 Basic Law
  2. 2 Whether the Court may order such a sale in the absence of consent of the registered manager under s.15 NTO, unanimous consent of all tso members, and/or consent of the Secretary for Home Affairs

Ratio Decidendi

The Court has jurisdiction under the Partition Ordinance to order a sale of the suit property even though part is owned by a tso; in the absence of evidence that customary prohibitions extend to outsiders, unanimous consent of tso members is not required to bar a court-ordered sale; section 15 NTO applies to disposals by a tso manager and does not prevent a court from ordering sale without the Secretary for Home Affairs' consent.

Court Disposition

Application allowed; both issues answered in favour of the Plaintiff; Plaintiff entitled to costs of the application

Orders

  • Both the jurisdiction issue and the consent requirement issue answered in the affirmative in favour of the Plaintiff
  • The costs of this application are to be paid by the Defendants to the Plaintiff