Nelson Kwan v. Byron Kwan

• Jurisdiction: Fiji
• Judgment Date: 26 July 2017
• Date: 26 July 2017
• Docket Number: Civil Action No.: HBC 323 OF 2016
• Counsel: Ms. M. Rakai for the Plaintiff,In Person for 1 Defendant,Ms. Nayacalevu for the 2 Defendant
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

Civil Action No.: HBC 323 OF 2016

Between:

Nelson Kwan of 88 Milverton Road, Raiwaqa, Suva.

Plaintiff

v.

Byron Kwan of 88 Milverton Road, Raiwaqa, Suva.

1^st Defendant

And

Karen Kwan of 88 Milverton Road, Raiwaqa, Suva.

2^nd Defendant

Appearance:

Ms. M. Rakai for the Plaintiff

In Person for 1^st Defendant

Ms. Nayacalevu for the 2^nd Defendant

Date of Hearing: 29^th June,2017

Date of Judgment: 26^th July,2017

JUDGMENT

INTRODUCTION

1. This is an Originating Summons filed by the Plaintiff seeking valuation of a property under joint tenancy between the three siblings, who are parties to this action and sale of the same. The Defendants vehemently object to the sale of the property. All the parties are living in the same property while some flats are being rented. 2^nd Defendant is a person who needs some special caring and attention and in the last will of late Kwan Chew Kuvan, the late father, referred to her as ‘invalid’ daughter. This property was owned by their late father. According to the undisputed Psychiatrist Report 2^nd Defendant is capable of participating in legal action, but her ability to manage finance needed further assessments, and no such further assessment was available at hearing.

FACTS AND ANALYSIS

2. The Originating Summons filed by the Plaintiff was filed in terms of Section 119 of the Property Act.

3. The said Originating Summons sought following orders

• i. An Order that the property comprises in certificate of Title No 9338 being Lot 57 on deposited plan number; 2274 (The Property)be valued by a court appointed valuer and the cost of the valuation be shared equally by the Plaintiff and the Defendants.

• ii. An order that the Defendants be given an option to buy out the Plaintiff's one third share of the valuation in (1); or

• iii. Alternatively, and order that the property comprised in Certificate of Title No. 9338 being Lot 57 on deposited plan number; 2274 be sold by the Plaintiff by tender to the highest tenderer and in the event the Defendants refuse to execute the instrument of Transfer, the Acting Chief Registrar of the High Court execute the said instrument of Transfer and all other documents in place of the Defendant.

• iv. An order that all sale proceeds be deposited in Court.

• v. An order that after deduction of costs, the net proceeds of sale to be shared equally between the parties.

• vi. Until the sale of said property, all further rental monies be collected by the Plaintiff as in the status quo.

• vii. Such further or other reliefs.

4. The Property in issue is a building owned previously by late Kwan Chew Kuvan. Parties to this action are issues of said Kwan Chew Kuvan and they lived in it. At the moment they live in that property and some flats are being rented and income is generated too.

5. Late Kwan Chew Kuvan died in 2003 surviving his wife and three children. This property was part of the estate of Kwan Chew Kuvan and wife and three children inherited it accordingly.

6. After demise of mother in 2013, the parties to the action, who are issues of her, became the only joint tenants of the property.

7. The Plaintiff who was one of the two executors of the estate of Kwan Chew Kuvan was removed by court order in 2015.

8. After he was restrained from collecting rents from the Property, he had filed this action for the sale of it in terms of Section 119 of the Property Act.

9. This action for sale of the Property was only supported by one joint tenant, whereas remaining two objected to it.

10. The Plaintiff who was the executor and also as the person who collected rentals from the Property till he was restrained, never sought to sell the Property for nearly 15 years. This request for sale and reasons adduced were not new, but...