Read the full judgment text of CACV 107/2017 on BabelCite. This Court of Appeal judgment was delivered on 5 March 2020 before Hon Lam VP, Cheung JA and Au JA.
Civil appeal – land law – New Territories village land – common intention constructive trust – proprietary estoppel – estoppel by silence/acquiescence – adverse possession – account of occupation rent between co-owners – three registered co-owners died between 1991 and 1999 – substantial construction work by 3rd defendant after their deaths – whether causes of action were constituted by the time of death – whether the equity from proprietary estoppel can bind the estate of the deceased promisor – whether detrimental reliance is judged at death of promisor or at time of repudiation by personal representative – whether adverse possession available where occupation was with consent of legal owners – whether Hong Kong should adopt the modern approach to occupation rent in Re Pavlou and Re Byford – Whether the Common Understanding was established – three brothers Wan, Kau and Fuk were the registered tenants in common in equal shares of Lot No. 1101 in DD 221, Sha Kok Mei Village, Sai Kung – Common Understanding that 3rd defendant should become sole owner of the Disputed Land and could build a small house there – 3rd defendant built two structures in 2002 and 2003 after the deaths of all three brothers – whether the 1997 Consent Statement supported the Common Understanding – whether the 3rd defendant was too young to be party to the Common Understanding in the late 1970s – whether detrimental reliance before the deaths of the three brothers was substantial enough to bind their conscience – whether a personal representative is bound by the promisor's assurance – whether knowledge of the promisor's detrimental reliance is a necessary ingredient of promise-based proprietary estoppel – whether detriment is judged at the moment of death or at the moment the promisor/personal representative goes back on the assurance – whether estoppel by silence or acquiescence applies against the plaintiff who stood by while the 3rd defendant built the structures – whether the use and occupation of the Disputed Land being with the consent of the legal owners precludes adverse possession – whether the court of equity may order an account of occupation rent without ouster under the modern approach – whether the plaintiff should be permitted to raise issues not pleaded or argued below in the assessment of account – Court of Appeal set aside the judgment of Wilson Chan J and remitted specified issues to him for determination, holding by majority (Lam VP and Au JA, Cheung JA dissenting on scope) that the modern approach to account should be followed in Hong Kong – appeal allowed to a limited extent – costs of the appeal to be in the cause of the remitted trial – costs of the lower court not disturbed.
Legal issues: Constitution of common intention constructive trust by death of legal owners · Whether proprietary estoppel equity binds the estate of a deceased promisor · Whether the 3rd defendant's claim based on adverse possession can succeed · Modern approach to account of occupation rent between co-owners in Hong Kong
Outcome: Appeal allowed to a limited extent; the judgment of Wilson Chan J is set aside; specified issues are remitted to Wilson Chan J for determination in accordance with the legal analysis of the Court of Appeal; the remainder of the trial judge's findings are not to be disturbed.
Cited by 4 cases · Cites 4 cases