Order for sale – need to show that the nature of the land makes partition undesirable?

Lam Sik Shi v Lam Sik Ying ([2010] HKEC 779, CA) concerned a dispute between two half-brothers who were tenants in common of a shop in Causeway Bay. The plaintiff’s application for an order for sale had succeeded at first instance. Indeed, the defendant had accepted that partition was not the appropriate relief. Rather, he sought to prevent a sale. The defendant appealed on the ground that there was no basis on which the judge could have decided that partition was not feasible. But there had been no suggestion before him that partition was feasible and such evidence as there was provided a sufficient basis on which to conclude that partition was not feasible. The defendant also argued that it had not been shown that partition would not be beneficial to all the parties because of the lack of evidence that it was not practicable. The Court of Appeal pointed out that section 6(1) of the Partition Ordinance specified four reasons for finding that partition was not beneficial and that the nature of the land was only one of these.

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