Kwok Mei Ha May v. Chiu Yung

HCA 3079/2015

[2018] HKCFI 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3079 OF 2015

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DECISION

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1.I will now give my Decision in this matter. I make an order that the same be transcribed and that copies be provided to the parties.

2.This is an application for leave to appeal this court’s decision madeon 5 February 2018, whereby the court dismissed the plaintiff’s application to strike out the defence and counterclaim and the plaintiff’s applications under Order 14 and Order 14A.

3.This morning the defendant again appears unrepresented.  The background to this matter is set out in the court’s decision of 5 February 2018, and I will not repeat the same here. 

4.Today, Mr Wong, on behalf of the plaintiff, has identified a number of matters which appear in paragraph 2(a) to (g) of the plaintiff’s summons dated 13 February 2018, which he submits have a reasonable prospect of success, if they are permitted to be considered by the Court of Appeal. 

5.These matters were substantially considered by the court at the hearing held on 5 February 2018.  The foundation of the plaintiff’s proposedappeal is that Mr Charles Tang had no equitable proprietary interest, or indeedany specifically enforceable right against Mr Ho, the former registered owner of the premises, and thus had nothing to gift or transfer to the defendant. 

6.As noted, Mr Tang entered into an agreement with Mr Ho to finance and build a house on Mr Ho’s land, and having done so and pursuant to the agreement, Mr Tang was given and entered into possession of the top floor and roof of the premises, in expectation, under the agreement, that legal title to the same would be transferred to him.

7.Then, before the premium payable to the government and assignment of the legal title to Mr Tang could be affected, he died. 

8.Mr Wong today submits therefore, that unarguably Mr Tang had no equitable proprietary interest or enforceable rights against Mr Ho, and that there was nothing unconscionable about Mr Ho then selling the premises that Mr Tang had built to the plaintiff, and receiving, through his agent, the purchase moneys, whilst all along the plaintiff had notice that the defendant resided in the premises with her daughter, having allegedly been gifted the same by Mr Tang. As noted in the earlier decision, the defendant had also expended sums on improving the property and furnishing the same. 

9.A student in equity may, in these circumstances, be somewhat surprised by the submission made by Mr Wong, but whether Mr Wong is right or wrong, the same, in my view, is plainly arguable. 

10.Mr Wong has then raised legal arguments in relation to common intention and constructive trusts, proprietary estoppel, and constructive notice.  In this context, I note that the courts have repeatedly stressed that summary judgment is not appropriate where there is a serious dispute of law, and that Order 14 proceedings are only appropriate for crisp legal questions. 

11.As I observed in the earlier hearing, there is nothing crisp about the legal issues raised in this case. 

12.In conclusion, I have to decide whether the plaintiff’s proposed appeal has a reasonable prospect of success.  In my view this is a case which manifestly should go to trial.  The plaintiff’s applications for a strike-out or summary judgment and for a determination under Order 14A are, in my respectful view, entirely misconceived, and as such have in my view no prospect of success in the Court of Appeal.  The plaintiff’s application is dismissed. 

13.The order that the court makes is as follows:

(1)   the plaintiff’s application for leave to appeal to the Court of Appeal is dismissed; and

(2)   the plaintiff will pay the costs of and occasioned by this application, to be taxed if not agreed.

Mr David P H Wong, of Wong, Hui & Co, for the plaintiff

The defendant appeared in person