TNAG-1612-FCO40-2220-Executive-Council-of-Hong-Kong-memoranda-and-minutes-of-meet-1987 — Page 147

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on 17 February 1987

Introduction

5/2/8760

XCR (87) 28 Copy No...

MEMORANDUM FOR EXECUTIVE COUNCIL

Partition Ordinance

Chapter 352)

PARTITION (AMENDMENT) BILL 1987

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Annexed for the consideration of members is the

Partition (Amendment) Bill 1987.

Background

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Partition Ordinance

Where land is co-owned, the provides the

the machinery for division by the Court in an equitable manner of the undivided

of the undivided shares of the property in land, and the allotment among the co-owners of the parts so as to put an end to community of ownership between some ΟΙ all of them. The present Partition Ordinance was enacted in 1969 and was based substantially on the Partition Acts 1868 and 1876 of the United Kingdom.

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Section 3(3) of the Ordinance, inter alia, makes the Crown a necessary party to the proceedings, a requirement not found in the UK law. This requirement was included in the 1969 Ordinance at the instance of the Acting Registrar General of the time who laid much emphasis on the element of public interest in partition proceedings in Hong Kong by virtue of the Crown's position as the universal landlord in Hong Kong. Although the rationale for its inclusion is not stated anywhere in SO many words the only reasonable conclusion is that it was motivated by concern to protect any interest the Crown might have in the land sought to be partitioned.

The need for legislation

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In a case under the Ordinance in the High Court in 1985, the Court disallowed the costs of the Crown on the ground that the Crown's participation was unnecessary, notwithstanding the statutory requirement that it be made party. The Crown Solicitor has consequently reviewed the position of the Crown in partition actions. This review has

a

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