Wong Lei Ah v. Lee Jim Wing

CACV 281/2017

[2020] HKCA 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 281 OF 2017

(ON APPEAL FROM HCA NO. 970 of 2015)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.This is the plaintiff’s appeal against the judgment of Deputy High Court Judge Sakhrani (“the Judge”) given on 15 November 2017 dismissing her claim for declaratory reliefs in adverse possession, and entering judgment on the defendant’s counterclaim for vacant possession and payment of mesne profits together with costs of the action.      

2.Both parties were legally represented at the trial. 

3.The plaintiff’s appeal was scheduled to be heard on 9 November 2018.  On 30 April 2018, the Registrar of Civil Appeals directed the plaintiff to lodge with the court and serve on the defendant her written submission and authorities, if any, in accordance with section G of Practice Direction 4.1.  Under paragraph 57 of section G, the plaintiff’s written submission should be lodged and served no later than 28 days before the hearing of the appeal.  The plaintiff was reminded of the above direction in the Notice of Hearing dated 23 May 2018.  The plaintiff did not comply with the direction.  Instead, she applied by letter dated 16 October 2018 to adjourn the appeal for six months on the ground that she was having difficulty obtaining documents from the management office. 

4.On 19 October 2018, Chu JA refused her request for adjournment having regard to the fact that an appeal does not operate as a re-trial and the plaintiff had not applied for, and there was no permission for her, to adduce new evidence at the appeal.  An unless order was made requiring the plaintiff to lodge and serve her written submission by 4:00 pm on Monday 29 October 2018, failing which she shall be barred from lodging written submission and the hearing date shall be vacated with the appeal being determined on paper.  This was communicated to the plaintiff by the Court’s letter of the same date. 

5.This Court has on many occasions emphasised the importance of due compliance by litigants with the requirement under Practice Direction 4.1 to lodge written arguments in an appeal to the preparation of an appeal, both for the judges and the litigants, and, in turn, the proper and effective functioning of the appeal process.  Non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this Court has taken a firm stance on the requirement to lodge written arguments.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing. 

6.In the present case, despite the directions and the unless order imposed by the court, the plaintiff failed to lodge and serve her written submission.  As a result of the plaintiff’s non-compliance with the unless order, the hearing date was vacated, and we have processed this appeal on paper based on the available materials, including the written submission of the defendant.   

The facts

7.The dispute in this action concerns a property known as Flat D on 6^th Floor of Block 5 Balwin Court and Carparking Space No. 94 on the Ground Floor of Balwin Court, Nos 154-164 Argyle Street, Kowloon, Hong Kong (“the Property”).

8.The following facts are not disputed:

(1)  Both the plaintiff and the defendant are now over 70 years of age. 

(2)  The plaintiff was formerly known as Wong Yuk Ling.  By a deed poll dated 29 June 1996, she changed her name to Wong Lei Ah, the present name.

(3)  The defendant has since 1977, when Balwin Court was newly completed, been the registered owner of the Property.

(4)  By a Chinese tenancy agreement dated 11 July 1977 made between the parties (“Tenancy Agreement”), the Property was let to the plaintiff for three years from 10 July 1977 to 9 July 1980 at a monthly rent of $1,800.  The Tenancy Agreement was duly stamped on 12 July 1977.

(5)  Under the Tenancy Agreement[1], the defendant was responsible for the rates and property and government taxes while the plaintiff was responsible for the other miscellaneous expenses relating to lift, utilities, pumping, cleaning and watchmen.

(6)  A cheque issued by the plaintiff to the defendant in the sum of $3,600 representing the rental deposit was twice dishonoured upon being presented for payment.  The defendant had brought this to the plaintiff’s attention. 

(7)  At the time of the signing of the Tenancy Agreement, it was agreed that the plaintiff would deposit the monthly rental into a bank account of the defendant at the Chase Manhattan Bank (“the Account”).  This account was closed by the defendant in 1979.

(8)  The plaintiff moved into the Property pursuant to the Tenancy Agreement and have been residing at the flat and using the carparking space.    

The issues in dispute at the trial

9.At the trial, three issues were agreed to be tried:[2]  

(1)   Was the Tenancy Agreement a valid tenancy agreement;

(2)   If the Tenancy Agreement was not a valid tenancy agreement, was there a licence granted by the defendant to the plaintiff; and

(3)   If the Tenancy Agreement was a valid tenancy agreement, has the plaintiff proved physical possession (factual possession) of and the requisite intention to possess (animus possidendi) the Property for the requisite 20 years before the commencement of the action below. 

10.The parties also agreed that if issue (3) was resolved in the plaintiff’s favour, she would be entitled to a declaration that she had acquired a possessory title to the Property; and if it was resolved in the defendant’s favour, he would be entitled to an order for vacant possession of the Property with mesne profit at $18,000 per month from 6 August 2015 (the date of the Defence and Counterclaim) until delivery of vacant possession of the Property.

The plaintiff’s case

11.The plaintiff’s case is that after being informed by the defendant of the dishonour of her cheque, she had paid the rental deposit into the Account.  She had also paid the rent into the Account until around early 1980 when she was informed by the bank staff that the Account was closed.  She tried to contact the defendant by telephone but it was not picked up.  She then deposited one year’s rent with a solicitor’s firm and instructed them to contact the defendant.  However, the solicitors also could not find the defendant and they return the rent to the plaintiff.

12.The plaintiff said that after the Tenancy Agreement expired in July 1980, the defendant did not re-appear or made any demand regarding the Property, while she and her family continued to occupy the Property without paying any rent.  They have since remained in open, uninterrupted and exclusive possession and occupation of the Property, and the plaintiff has paid for the management fees, utility and renovation expenses of the Property.  The plaintiff said that in the circumstances she had evinced an intention to, and did possess, the Property to the exclusion of all other parties, and accordingly had since July 1979 dispossessed the defendant and acquired possessory title to the Property by adverse possession.  The plaintiff sought various declaratory reliefs to that effect.

The defendant’s case

13.The defendant denied that the plaintiff had paid the rental deposit or the rent into the Account.  The Account was opened for the sole purpose of receiving rent.  He closed the Account in 1979 as it was of no use.  It is the defendant’s case that as there was no payment of rental deposit or rent, the plaintiff had provided no consideration for the Tenancy Agreement and there was no valid tenancy agreement between the parties.  The defendant contended that the plaintiff and her family occupied the Property under a licence, which was revoked by the Counterclaim.  The defendant denied that the plaintiff had the intention to and did in fact dispossess him, or that his title in the Property has been extinguished.  He counterclaimed for an order of vacant possession, and payment of mesne profit as from the date of the Defence, and, alternatively, damages for trespass since July 1977.     

The Judge’s findings and judgment

14.The Judge noted that the defendant had difficulty recalling exactly what happened in July and August 1977, and the bank book of the Account was lost due to lapse of time.[3]  On the question of whether the rental deposit and the rent had been paid, the Judge preferred the evidence of the plaintiff.  He found that the plaintiff had paid the rental deposit and the monthly rent of $1,800 into the Account for about two years, and she stopped paying rent after the Account was closed.[4] 

15.The Judge, however, did not accept the plaintiff’s case that she had deposited one year’s rent with a solicitors’ firm and it was returned to her after the solicitors could not find the defendant with the contact telephone number she provided.[5]  The Judge nevertheless accepted that until mid-1980, the plaintiff was prepared and willing to pay the defendant the rent due and uncollected.[6]

16.With regard to agreed issue (1), the Judge rejected the defendant’s contention that the Tenancy Agreement was not a valid tenancy agreement, having found that the defendant’s case that there was no consideration for the Tenancy Agreement was not made out.[7] 

17.In light of the finding on issue (1), issue (2) did not arise for determination.[8]

18.On issue (3), the defendant did not dispute that the plaintiff has proved factual possession.  The dispute turned solely on whether the intention to possess (animus possidendi) was established.[9] The Judge also found on the facts that the plaintiff was in possession as a tenant until the end of the Tenancy Agreement in July 1980, and she became a trespasser thereafter.[10] 

19.With regard to whether the intention to possess was established, the Judge had regard to the plaintiff’s evidence that she considered herself under a duty to pay rent even after the Account was closed, noting further her evidence (which the Judge rejected) that she had taken the trouble to seek legal advice and place one year’s rent with a solicitors’ firm for payment to the defendant when he could be contacted.  The Judge found it incredible that suddenly in mid-1980 she was no longer willing to pay the outstanding rent or return the Property to the defendant, and further regarded the Property as her own property.[11] 

20.The Judge rejected the reliance placed by the plaintiff on the proposition that animus possidendi could be established even though the occupier mistakenly believed himself to be the lawful owner of the land[12] as he found that there was no question of a mistaken belief upon the rejection of her evidence and having regard to the statement of law set out in Cheung Kwong Yuen v.Sun Hui Fang.[13] 

21.The Judge also did not believe the plaintiff’s evidence that immediately after the Tenancy Agreement expired in mid-1980 she changed the locks of the Property[14] and informed the management office she had become the owner of the Property.     

22.The Judge took into account the payments made by the plaintiff in relation to the Property.[15]  The Judge considered that the plaintiff’s payments of management fees and expenses to renovate the Property were on account of her occupation of the Property, and in the circumstances of the case did not advance the plaintiff’s case on the issue of intention to possess. 

23.The Judge also had regard to the undisputed evidence that the defendant has paid the rates over the years except for one quarter ending 31 December 1986 as well as the documentary evidence that the defendant had made various payments, including management fees and building maintenance expenses, in 1990 to 1992 and also in 2010.    

24.The Judge concluded that, in all the circumstances of the case, the plaintiff failed to prove, on a balance of probabilities, the requisite intention to possess the Property for the requisite period as from mid-1980.  Issue (3) was thus determined in the defendant’s favour.  The Judge accordingly ordered the plaintiff to deliver vacant possession of the Property to the defendant and to pay mesne profits at $18,000 per month from 16 August 2015 until delivery of vacant possession together with costs of the claim and counterclaim.

The plaintiff’s grounds of appeal

25.The notice of appeal contained a statement of appeal, in which the plaintiff set out eight grounds of appeal under two headings as follows:

A.     The Judge’s decision was based on wrongful speculations and failure to consider in depth the plaintiff’s and the defendant’s evidence.  The two specific grounds of appeal argued that:

(1)  The judge failed to consider why the defendant closed the Account.  The evidence suggested that the defendant did not want others to know his residential address or to contact him.  The Judge was wrong to accept his explanation.

(2)  The Judge erred in disbelieving the plaintiff’s evidence that she had instructed solicitors to contact the defendant to collect the rent due.

B.      The Judge erred in his understanding and findings on the documents showing the plaintiff’s payment of management fees and building maintenance expenses, and further erred in disbelieving the plaintiff’s evidence that she informed the management office in 1980 that she had become the owner of the Property.  Six specific grounds were put forward under this heading, namely:

(1)  The plaintiff paid the renovation expenses of the Property because she regarded the Property as hers and not, as the Judge held, because the building was old and she was living in the Property.

(2)  The Judge wrongly speculated that the plaintiff did not intend to pay for the rates and taxes relating to the Property.  The Judge failed to consider that the Property was registered in the defendant’s name and the plaintiff, who had no proof of title, could not have asked for the demand for rates to be addressed to her.  Besides, the defendant paid for the rates and taxes by autopay such that there was no way the plaintiff could handle the payment.

(3)  The Judge was biased in favour of the defendant in disbelieving the plaintiff’s evidence that she had more documents relating to the maintenance of the building.  The truth is the plaintiff did have many documents that came into existence after the action was commenced, but she was advised by her lawyer(s) that it was too late and the production of these documents could cause the trial to be adjourned.

(4)  The Judge wrongly disbelieved the plaintiff’s evidence as a result of the October 1990 reminder from the management office to the defendant to pay the outstanding management fees.  The plaintiff was in Australia with her husband between 1990 and 1993, and the Property was occupied by her mother and her son.  It was because the management office could not contact the plaintiff that it sent the reminder to the defendant. 

(5)  The Judge failed to consider that the management fee receipt dated 10 February 2010 was the only management fee receipt addressed to the defendant, and there was another management fee note bearing the same date as well as subsequent receipts that did not bear the defendant’s name.  It was probably due to an oversight that the 10 February 2010 management fee receipt was addressed to the defendant.

(6)  The Judge’s decision was unfair, based solely on his speculative views that the plaintiff’s evidence was not credible and his bias in favour of the defendant.      

Reasons for decision on the appeal

26.In a nutshell, the plaintiff’s grounds of appeal seek to challenge the Judge’s finding on the credibility of the plaintiff and the defendant, his assessment of the documentary evidence as well as his decision to accept or reject the evidence given by the parties. 

27.It is well established law that the appellate court will rarely interfere with a trial judge’s assessment of the credibility and evidence of witnesses and his findings of primary facts: see, for example, the Court of Final Appeal’s judgment in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at [41] and [42], and this Court’s judgment in Tin Kwong International Enterprise Co Ltd v San Tung [2006] 2 HKLRD 185, para 14(b) and ZJW v SY (unreported) CACV 10/2017, 1 December 2017 at [28] and [29].  This is because the trial judge has the advantage of seeing the witnesses and hearing the evidence directly, thus having a greater familiarity with the evidence and a deeper insight in reaching conclusions of fact than an appeal court whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence:Ting Kwok Keung v Tam Dick Yuen, supra; and McGraddie v McGraddie [2013] UKSC 58 at [3] and [4].  Further, the re-opening of all questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources: see Carlyle v Royal Bank of Scotland Plc [2015] UKSC 13 at 22.  The appellate court will only interfere where the trial judge is shown to be plainly wrong, such as where the finding of fact is one (i) which there is no evidence to support, (ii) which is based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached: see Ting Kwok Keung v Tam Dick Yuen, supra at [44] to [46], and ZJW v SY, supra.

28.The plaintiff’s first two grounds of appeal challenge the Judge’s evaluation of the evidence about the payment of rent during the continuation of the Tenancy Agreement.  The parties’ dispute on this issue is twofold.  First, while the plaintiff said she had paid the monthly rent into the Account until it was closed, the defendant’s case is that the plaintiff had only paid rent into the Account on a few occasions but not the full monthly amount of $1,800.  The Judge preferred the plaintiff’s evidence to that of the defendant, taking the view that it was inconceivable that the defendant would not have chased the plaintiff for the rent if indeed no rent was paid for two years.  The plaintiff did not take issue with this finding, which is in her favour.  

29.The second dispute relates to payment of rent after the Account was closed.  The plaintiff said she deposited a year’s rent with a solicitors’ firm with instruction to contact the defendant, and that the money was later returned to her because the solicitors could not find the defendant. The Judge did not believe the plaintiff, after considering the following matters:

(1)   There is no documentary evidence to show that she had deposited in advance one year’s rent with solicitors.

(2)   There is no evidence as to what the solicitors had done to try to contact the defendant.

(3)   The defendant telephone number as stated in the Tenancy Agreement had not changed all these years.

(4)   The plaintiff accepted she had not made enquiries with the management office of Balwin Court as to the whereabouts of the defendant.

(5)   The unchallenged evidence that immediately after acquiring the Property, the defendant informed the Treasury to send demands for rates to his address at 1/F, 40 Gillies Avenue, Kowloon.  The solicitors acting for the plaintiff in the action stated this as the defendant’s address (albeit stated more fully) in the writ, and also did not appear to have difficulty locating the defendant.     

30.In our view, the Judge has given cogent reasons for his assessment and finding on the credibility of the parties and their evidence on this issue.  He had taken into account the relevant objective evidence and made a proper analysis of them.  It is opened to the Judge, on the basis of the materials before him, to reject the plaintiff’s evidence about having set aside one year’s rent and/or not being able to contact the defendant.  There is no basis for the complaint that the Judge did not consider the evidence thoroughly or that his findings are mere conjecture and speculation.  The plaintiff has failed to show that the Judge’s findings are wrong, let alone plainly wrong. The first two grounds of appeal therefore fail.

31.In any event, whether the plaintiff had set aside one year’s rent and/or instructed solicitors to locate the defendant has no direct relevance to the plaintiff’s claim in adverse possession and the issue in this appeal.  As the Judge pointed out, it is clear on the plaintiff’s evidence that up to mid-1980, she was quite prepared and willing to pay the rent due under the Tenancy Agreement.   

32.Turning to the remaining six grounds of appeal, they are essentially complaints against the Judge’s rejection of the plaintiff’s evidence that after the Tenancy Agreement expired, she informed the management office that she became the owner of the Property and his assessment of the evidence relating to the plaintiff’s payment of expenses and costs concerning the Property.  These assessments and findings were made in the context of considering whether the plaintiff has proved the requisite intention to possess.

33.In respect of the plaintiff’s evidence, the Judge disbelieved her on a few matters and gave his reasons as follows:      

(1)  The plaintiff’s evidence that in mid-1980 she considered herself to be the owner of the Property was incredible.[16] The judge observed that she was evasive when giving evidence on this, and that it was contrary to common sense that she would have considered the Property was hers just because the defendant did not come to collect the rent

(2)  The Judge did not believe the plaintiff changed the locks in mid-1980 immediately after the solicitors returned the one-year rent set aside for the defendant.[17]  The Judge pointed out that this was not mentioned in the witness statement and was mentioned for the first time in her oral evidence.  The Judge found that the plaintiff made this up to bolster her case on the intention to possess.  The Judge further observed that it would not be surprising that over the years, the plaintiff would have changed the locks but it would have been an equivocal act done for her and her family’s security at the Property.[18]

(3)  The Judge did not question the plaintiff’s evidence that she had lost some of earlier receipts evidencing payment of building maintenance and repair.  He, however, rejected her evidence that she had some further receipts, but was told by her solicitors that it was too late to adduce additional documents.[19]  The Judge noted that this was not mentioned in her witness statement.  Importantly, the Judge observed that at the trial, while the defendant had, with the plaintiff’s agreement, put in additional documents, it was never suggested on behalf of the plaintiff that there were further documents available that she wished to rely on and there was no attempt on behalf of the plaintiff to adduce further documentary evidence.

(4)  The Judge also rejected the plaintiff’s evidence that in 1980 she informed the management office that she had become the owner of the Property.[20]  The Judge pointed out that, had she done so, the management office would not have sent to the defendant a reminder[21] for payment of management fees for September and October 1990, with a handwritten note telling the defendant that he was responsible for the payment because the tenant had failed to pay the two months’ management fees.  The Judge also noted that the defendant had made various payments to the management office during 1990 to 1992 and had received receipts for them.[22]  As to the plaintiff’s evidence that she was living in Australia from 1990 to 1993 and she had asked her mother to pay the management office in her absence, the Judge observed that there was no satisfactory explanation why her mother did not pay the fees that were later paid by the defendant.[23]  The Judge further referred to a receipt dated 10 February 2010 issued by the management office to the defendant for the management fees of the carparking space for July to December 2009[24], and commented that the plaintiff was unable to satisfactorily explain why the receipt was made out to the defendant instead of her.[25]

34.As to the documentary evidence adduced by both sides, the Judge’s findings are that:

(1)   The documents show that the plaintiff had paid the management fees, incurred expenses for the renovations of the Property and paid contributions to the maintenance and repair of the building. 

(2)   However, the plaintiff’s payment of the management fees was for her occupation of the Property as she was liable to pay management fees under the Tenancy Agreement, and she continued to do so after the Tenancy Agreement ended, which was also for her occupation of the Property.

(3)   Likewise, the plaintiff’s payment of renovation expenses was referable to her occupation of the Property.  Given the long period of time that the plaintiff has been occupying the Property, it was hardly surprising that the Property would require renovation, and it was also not surprising that the plaintiff would incur expenses to renovate the Property.  In this regard, the documentary evidence shows that the first renovation was in October 2009[26] with some other renovations being made subsequently. 

(4)   The plaintiff had made payments which would usually be paid by a property owner, such as building renovation fees and contributions to the building improvement fund and window inspection and repairs.  This is to be taken into account when considering whether the intention to possess has been established in all the circumstances of the case.  On the available documentary evidence, the earliest payment made by the plaintiff would be in 1996.[27] By then, the plaintiff had occupied the Property for 19 years. 

(5)   The defendant’s evidence is that he used to pay the building maintenance fees upon being notified by the management office, and he did not do so in the later years because he did not receive payment notice from the management office.  The documentary evidence shows that the defendant had made various payments between 1990 and 1992, including management fees for October to December 1990,[28] contribution for urgent elevator repair in June 1991,[29] and contribution for building maintenance in January 1992.[30]

(6)   The undisputed evidence is that demands for rates were addressed to the defendant at a PO Box address he provided to the Treasury[31], and the defendant has paid the rates by autopay throughout the years, except for the quarter ending 31 December 1986, which was paid by the plaintiff.

(7)   The plaintiff confirmed she made no enquiries about payment of rates, although she was aware that rates had to be paid quarterly and she has throughout her occupation of the Property only made one payment of rates.  From the evidence, it did not appear that the plaintiff had sought to replace the defendant as the ratepayer.       

35.The plaintiff’s third ground of appeal (see B(1) at [25] above) argued that she paid the renovation expenses of the Property because she regarded the Property as hers and not because the Property was old and she was living in it.  The documents adduced by the plaintiff show that since 1977, three renovations had been done to the Property in 2009, 2013 and 2015.[32]  As the Judge observed, the first renovation took place in October 2009.  By then the plaintiff had occupied the Property for more than 30 years.  As can be seen from the quotations and receipts, the works involved were primarily repairs and remedial works.  In our view, it is open to the Judge to find that over the long period that the plaintiff was staying at the Property, it was not surprising that the Property would require renovation, and as she was staying there, it was not surprising that she would pay for the renovations. The Judge is further not in error to hold that the payment of the renovation expenses did not assist the plaintiff in establishing the intention to possess.

36.The plaintiff’s fourth ground of appeal (see B(2) at [25] above) argued that the Judge was wrong to think she had no intention to pay rates and taxes relating to the Property.  This is in relation to the Judge’s finding that the ratepayer’s name on the demands was at all times the defendant, and it did not appear the plaintiff had sought to replace the defendant’s name with her name.[33]  The Judge made this finding after observing that the plaintiff was evasive when being cross-examined about the payment of rates.  He further found that while the plaintiff knew that rates had to be paid every quarter, for all the years that she had been in occupation, she had only paid the rates for the last quarter of 1986, and she did not make any enquiries whether rates were paid from 1977 to 1986.  The plaintiff contended that because she did not have proof of title and the defendant paid rates by autopay, she could not have substituted the defendant as the ratepayer or paid the rates.  These arguments, however, do not address the Judge’s finding that there is no evidence of any attempt by the plaintiff to deal with the payment of rates when she knew all along that rates had to be paid and when she should have known that the defendant was paying the rates throughout the years.  We do not accept the Judge erred in his findings over the payment of rates.

37.We would further point out that the defendant had explained[34] that it was because he was not able to find the plaintiff at the Property, coupled with the fact that he did not need the rent for his living and was busy with his business, that he had not taken action to chase the plaintiff for rent or to claim possession.  He, however, stressed that he has always considered himself the owner of the Property.  Although the Judge did not make any specific finding on this, in light of his other findings, he must have accepted this part of the defendant’s evidence, which is consistent with his continuing to pay the rates over the years and also, upon being informed by the management office, the management fees and other expenses relating to the Property and the building.  

38.The plaintiff’s fifth ground of appeal (see B(3) at [25] above) complained about the Judge’s rejection of her evidence that she had available further documents relating to the maintenance of the building.  The plaintiff maintained that she was advised by her lawyer(s) that it was too late to adduce them at the trial and to do so would risk the trial being adjourned. However, as the Judge rightly observed, the defendant had adduced additional documents at the trial with the agreement of the plaintiff.  There is no conceivable reason why the plaintiff’s lawyer(s) would not have similarly sought the defendant’s agreement to adduce additional documents if indeed the plaintiff had further supporting documents that she wished to produce and rely on. 

39.In short, the plaintiff fails to show that the Judge was wrong, let alone plainly wrong, in disbelieving her assertion that she had told her lawyer(s) that she had further documents relating to payment of building maintenance and repairs and she did not produce the documents at the trial due to legal advice.         

40.Both the sixth and seventh grounds of appeal (see B(4) and (5) at [25] above) concern the Judge’s rejection of the plaintiff’s evidence that she had in 1980 informed the management office that she became the owner of the Property.  The Judge pointed out that had this been the case, the management office would not have sent a reminder to the defendant to demand payment of the outstanding management fees for September and October 1990.  Under the sixth ground of appeal, the plaintiff argued that it was because she was in Australia at the time and the management office could not contact her that the reminder was sent to the defendant.  This argument, however, misses the point.  The thrust of the Judge’s reasoning is that if the management office had been told the plaintiff was the new owner of the Property, it would not have sent the reminder to the defendant.  More importantly, the management officer would not have written on the reminder that the defendant was responsible to pay the management fees because the tenant failed to make payment. 

41.The Judge also referred to a receipt dated 10 February 2010 issued to the defendant for management fees in respect of the carparking space for July to December 2009.  Under the seventh ground of appeal, the plaintiff argued that this was the only management receipt made out to the defendant, there were many management fee receipts that did not bear the defendant’s name, and it was probably due to an oversight that this receipt was issued in the defendant’s name.  This ground is unarguable.  In the first place, no evidence was adduced at the trial on the circumstances leading to the issuance of this receipt.  There is simply no basis to suggest that the defendant did not pay for the management fees stated in the receipt or that the receipt was made out to him by mistake.  Secondly, if the plaintiff had indeed told the management office in 1980 that she was the new owner, it is difficult to understand how it was that 30 years later in 2010 the management office would issue a receipt to the defendant, whether this was a mistake or otherwise. 

42.For the above reasons, the third to seventh grounds of appeal have no merits.  There is also no basis for the complaint in the last ground of appeal that the Judge’s decision was unfair or the rejection of the plaintiff’s evidence was based on the Judge’s speculations. 

Conclusion and costs

43.As none of the grounds of appeal has been made out, we dismiss the appeal.   

44.Applying the usual rule of costs follow event, we make an order that the plaintiff pays the defendant the costs of this appeal, to be taxed if not agreed.

The plaintiff, unrepresented, acted in person up to 23 September 2019.

Ms Candy Tang, instructed by Chak & Associates, for the defendant

James K L Sin & Associates acted for the plaintiff as from 24 September 2019.