Cheung Lai Mui (張麗梅), The Executrix of the Estate of Cheung Ping Kau and The Administratrix of the Estate of Cheung Ping Fuk (Alias Cheung Bing Fuk) v. Cheung Wai Shing and Others

CACV 107/2017

[2020] HKCA 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 107 OF 2017

(ON APPEAL FROM HCA NO. 1652 OF 2012)

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BETWEEN

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Before:  Hon Lam VP, Cheung and Au JJA in Court

Date of Decision:  3 July 2020

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D E C I S I O N

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The Court :

I.  Leave to appeal to the Court of Final Appeal

1.1The plaintiff applies for leave to appeal to the Court of Final Appeal against our judgment dated 5 March 2020 on the ground that the appeal raises questions of great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  The two questions are :

1)  Whether there can be proprietary estoppel arising from an oral promise relating to interest in land binding on the estate of the promisor in the absence of any or any reasonable detrimental reliance by the promisee prior to the death of the promisor; and in such case whether detrimental reliance of the promisee only after the death of the promisor can give rise to proprietary estoppel against the estate of the deceased promisor overriding the interest of the successors or beneficiaries to the estate?

2)  Whether a co-owner in sole occupation of land, in cases other than partition or ouster and in the absence of agreement, should be ordered to account to the other co-owners for occupation rent. Alternatively, whether the proposition of law in Re Pavlou (A Bankrupt) [1993] 1 WLR 1046 at 1050D that ‘a court of equity will order an inquiry and payment of occupation rent even if there is no ouster when it is necessary to do so to do equity between the parties’ should be confined to partition or analogous proceedings?

1.2We are of the view that these two questions are prima facie reasonably arguable for the purpose of granting leave to appeal but since the Court below has to rehear issues that we have directed, it would be more appropriate as a matter of case management and following the approach of Chee Fei Ming v. Director of Food and Environmental Hygiene (2017) 20 HKCFAR 64 to adjourn the application sine die with liberty to the parties to restore it for hearing, if so advised, in the light of the decision of the rehearing.  Costs of the application is reserved.

II.  Variation of Costs

2.1The plaintiff also applies to vary the costs order that we have made in our judgment.  The plaintiff asks for the following variation :

1)  the order for costs below be set aside and substituted with an order that the costs below be in the cause of the remitted trial; and

2)  30% of the costs of the appeal be to the plaintiff, with the remaining be in the cause of the remitted trial.

2.2We will vary the order for costs below as requested by the plaintiff but the order for costs of the appeal will be unchanged.

2.3We will order 50% of the costs of the application for variation to the plaintiff.  We will grant certificate for two counsel.

2.4Although we have not stated in our judgment, we will grant certificate for two counsel for the appeal.

Ms Audrey Eu SC and Mr Anson Wong Yu Yat, instructed by Chan & Chan, for the plaintiff

Mr William Wong SC, Mr Alan Kwong and Ms Stephanie Wong, instructed by Tung, Ng, Tse & Lam, for the 1^st to 3^rd defendants