Lau Chung Kei v. Lau Miu Ting
Read the full judgment text of CACV 57/2021 on BabelCite. This Court of Appeal judgment was delivered on 7 February 2022 before Kwan VP, G Lam JA, Chow JA.
Property law – co-ownership – agreement for change of title – oral agreement – whether the trial judge was manifestly wrong – tenancy – vacant possession – co-owner's sale of undivided share – implied terms – breach of contract – costs – Property A is a residential unit at Luk Yeung Sun Chuen, Tsuen Wan; Property B is an industrial unit at Kingswin Industrial Building Phase 2, Kwai Chung; Property C is a car parking space at the same industrial building – the parties inherited the three properties from their father's estate as joint tenants, with their mother as executor – whether an Oral Agreement existed between the Plaintiff, the Defendant and the Mother that the Mother would continue to collect the rents of the three properties until she passed away – held, the trial judge's finding of the Oral Agreement was not manifestly wrong as it was supported by testimony of the Plaintiff and the Mother, as well as WhatsApp messages exchanged between the Defendant and the Mother – whether the Agreement for Change of Title was a valid and binding contract – held, yes, the Agreement was valid and binding as it clearly stipulated the title to each property, the value, the means of change of title and the date of completion – whether the Defendant was in breach of the Agreement by insisting on vacant possession of Properties B and C on completion – held, the Defendant was in breach as the implied term of vacant possession does not apply to a co-owner's sale of their undivided share to another co-owner, and the 'as-is basis' clause did not constitute an express agreement on tenancy or vacant possession – whether the Defendant was dispossessed of the properties by the Plaintiff – held, no, the Defendant failed to prove long-term occupation by the Plaintiff and her counterclaim was therefore properly dismissed – appeal dismissed – Defendant to pay the Plaintiff's costs of the appeal, to be assessed summarily on paper under Order 62 rules 28A as the Plaintiff is unrepresented.
Legal issues: Existence of Oral Agreement for the Mother to collect rents · Validity of Agreement for Change of Title · Whether the Defendant was in breach of the Agreement for Change of Title · Whether the Defendant was dispossessed of the properties by the Plaintiff
Outcome: Appeal dismissed.
Cited by 13 cases · Cites 7 cases
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[English Translation - 英譯本] CACV 57/2021 [2022] HKCA 199 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 57 OF 2021 (ON APPEAL FROM HCA NO 2030 OF 2017) ____________
____________ Before: Hon Kwan VP, G Lam JA and Chow JA in Court Date of Hearing: 14 January 2022 Date of Judgment: 7 February 2022 _________________ J U D G M E N T _________________ Hon G Lam JA (giving the Judgment of the Court): Introduction 1.The Defendant and the Plaintiff in this case are elder sister and younger brother. The parties inherited three properties (Properties A, B and C) from the father’s estate as joint tenants. The two of them signed a written agreement on 26 March 2017 for the change of the title to the three properties, pursuant to which the Plaintiff would solely own Property A and the Defendant would solely own Properties B and C. Subsequently, they did not complete the transactions for the change of the title because the Defendant considered that vacant possession of Properties B and C, which were subject to tenancy, should be delivered up on completion. The Plaintiff later commenced legal proceedings to enforce the agreement. After a trial, Madam Justice B. Chu of the Court of First Instance of the High Court held in favour of the Plaintiff and dismissed the Defendant’s counterclaim. The Defendant appealed to this Court against the judgment. Background 2.The parties’ father, Lau Chun-Yu (“Father”), passed away in 1994, leaving behind his wife Hui Lai-Kuen (“Mother”) and two children, the Plaintiff and the Defendant. The Father’s estate included their family residence in Fu Yung Shan, Tsuen Wan (the “Fu Yung Shan Property”) and the three properties involved in this case, namely: (1) a residential unit at Block Q, Luk Yeung Sun Chuen, Tsuen Wan (“Property A”); (2) a unit at Kingswin Industrial Building Phase 2, 32-50 Lei Muk Road, Kwai Chung (“Property B”); and (3) a car parking space at Kingswin Industrial Building Phase 2 (“Property C”) (collectively, the “Three Properties”). 3.The Father made a will and appointed the Mother the executor. According to the Father’s will, the properties were to be dealt with in the following manner:
4.On 1 March 1996, the Mother was granted probate. She has rented out the Three Properties for rentals since the Father passed away. 5.The two children were underage when the Father passed away. In about 2000, the Plaintiff reached the age of 21, but the Mother did not instantly hand over the Three Properties to her two children. 6.On 29 April 2011, the Mother as the executor signed three Assents to transfer the Three Properties to the Plaintiff and the Defendant who held them as joint tenants. 7.The Court of First Instance held that before the Mother signed the above three Assents, the Mother, the Plaintiff and the Defendant had reached an oral agreement that after the signing of the Assents, the Mother would continue to rent out the Three Properties so that she would receive the rents to provide for herself until she passed away (the “Oral Agreement”). 8.By 2016, the Defendant requested to have an arrangement for the co-owned properties so that she would no longer own the Three properties jointly with the Plaintiff. The Defendant raised various proposals and so did the Plaintiff. Finally, on 26 March 2017, the Plaintiff and the Defendant signed an “Agreement for Change of Title”. On the same day, the Defendant and the Mother signed an “Additional Agreement”. 9.The terms of the Agreement for Change of Title are as follows:
10.The main clause of the Additional Agreement is that within 30 days after the completion of the transactions for the change of title, the Defendant shall move out of the Fu Yung Shan property, remove her personal belongings, and no longer have any unnecessary contact with the Mother and her family members. 11.Between April and May 2017, the Plaintiff and the Defendant had disputes over how the change of title is to be transacted and the stamp duty to be paid, but they finally agreed to proceed by way of agreements for sale and purchase; that is, the Plaintiff would sell his half share in the ownership of Properties B and C to the Defendant while the Defendant would sell her half share in the ownership of Property A to the Plaintiff. The Plaintiff also agreed to pay all the stamp duties on the Agreement for Change of Title. 12.On 24 April 2017, the Defendant submitted the Agreement for Change of Title to the Inland Revenue Department for stamping. On the same day, the law firm appointed by the Plaintiff (i.e. Y. T. Szeto & Co., “YTS”) sent a letter to the law firm appointed by the Defendant (i.e. Yip, Tse & Tang, “YTT”) and attached the draft agreements for the sale and purchase of Property B and Property C. The two draft agreements for sale and purchase provided that the properties were sold subject to tenancy and copies of the tenancy agreements were attached. Property B was subject to a two-year tenancy which would expire on 14 December 2017 and Property C was subject to a one-year tenancy which would expire on 30 November 2017. 13.On 17 May 2017, YTS sent a letter to YTT and put forward the following proposal to resolve the disputes between the parties at that time:
14.On 5 June 2017, YTT sent the draft agreement for the sale and purchase of Property A to YTS, stating that the Plaintiff would sign the agreement if there would be no further amendment. At that time, YTT did not object to the proposal made by YTS in the letter dated 17 May 2017. 15.On 14 June 2017, the Plaintiff registered three Notices of Severance for the Three Properties with the Land Registry. YTS also sent a letter to inform YTT of the same on 16 June 2017. 16.On the same day, 16 June 2017, YTT amended the agreements for the sale and purchase of Property B and Property C drafted by YTS and sent them to YTS. The amendments included the following:
17.YTS replied and pointed out that, in fact, both parties had always known that the properties were subject to tenancy and it was unreasonable for the Defendant to request an inspection of the properties prior to completion of the transactions. YTS pointed out that the transactions were in effect agreements for severing the ownership of the properties co-owned by them. YTS suggested that if there was any issue in the title to any of the Three Properties, the parties could postpone the completion date of the transactions until the issue was resolved by them. Moreover, all the tenancy agreements would expire in a few months. By then vacant possession of the properties could be delivered up. 18.YTT replied on 21 June 2017, claiming that the Defendant did not know whether the Three Properties were subject to tenancy before signing the Agreement for Change of Title and that the tenancy agreements were not signed by the two owners of the properties (that is, the Defendant and the Plaintiff). Therefore, the tenancy agreements should be invalid. The Defendant insisted that vacant possession of Property B and Property C be delivered up; otherwise, the Defendant proposed that the Three Properties be sold and the parties should share the sale proceeds equally. 19.The next day, YTS responded and proposed two options for the Defendant to consider. As the tenancy of Property B and Property C would expire on 14 December 2017 and 30 November 2017 respectively, the Plaintiff proposed that the date of completion of the sale and purchase of Properties B and C be postponed to mid-December 2017 and vacant possession be delivered up. Alternatively, the Plaintiff proposed that the date of completion should remain unchanged on 26 June 2017, on which the Defendant would become the sole landlord in the tenancy agreements of Properties B and C so that she could start receiving the rents on 26 June 2017. 20.YTT replied on 23 June 2017, insisting that the Defendant had no knowledge of the then tenancy and did not agree to postpone the date of completion of the transaction. She insisted that either vacant possession should be delivered up on completion of the transaction on 26 June 2017, or that both parties should sell the Three Properties and share the proceeds of the sales equally. YTS subsequently by a letter of reply dated 26 June 2017 withdrew the Plaintiff’s former proposal to pay all the stamp duties of all transactions concerned and informed the Defendant that she must comply with the terms of the Agreement for Change of Title on that day (i.e. 26 June 2017) to complete all the transactions. Nevertheless, YTT replied that the Defendant still insisted that vacant possession of Property B and Property C should be delivered up on the date of completion. In the end, the parties did not complete any transaction on 26 June. Contentions of Both Parties in the Action 21.On 30 August 2017, the Plaintiff commenced legal proceedings. The Plaintiff claimed that the Defendant’s insistence on delivery up of vacant possession of Properties B and C would amount to a refusal to perform the Agreement for Change of Title, thus rendering it impossible for the Plaintiff to obtain the other half of the title to Property A. Furthermore, on 29 July 2017, the Defendant wrote to the tenant of Property A, asking the tenant to move out upon the expiry of the tenancy. The Defendant also obtained four resident cards from the management office of Property A on 6 September 2017, which prevented the Plaintiff from letting out Property A again. The Plaintiff suffered loss in rental as a result. 22.The Defendant pleaded in her defence that the deeds and the tenancy agreements of Properties B and C were all along kept by the Plaintiff, who deliberately concealed the relevant information before entering into the Agreement, failed to disclose that the Defendant would have to accept two tenancy agreements which were not entered into by the owners as landlords and refused to reach a reasonable resolution of the dispute over the tenancy by the date of completion (26 June 2017). The Defendant believed that the transaction of the Agreement for Change of Title was fraudulent and refused to perform it. The Defendant complained that the Plaintiff “forcibly inferred” that she was unwilling to rent out Property A jointly. The Defendant claimed that she was dispossessed of the Three Properties by the Plaintiff who occupied or rented them out. The Defendant filed a counterclaim, seeking an order for sale of the Three Properties jointly with the Plaintiff and that the sale proceeds and expenses be shared by the parties in equal share in order to resolve the problem of the co-ownership. The Defendant claimed the legal costs of $10,000 that she spent unnecessarily and loss of the rental income during which she was dispossessed of the properties. Judgment of Court of First Instance 23.The trial judge pointed out in the judgment that the main disputes between the two parties were:
24.Regarding the first dispute above, the trial judge took the view that the Mother and the Plaintiff were reliable witnesses and accepted that the Oral Agreement referred to in their evidence did exist. 25.Regarding the second dispute above, the trial judge considered that the Defendant had sufficient time to peruse the Agreement for Change of Title and seek legal advice before signing it on 26 March 2017. The fact that the Defendant had filled out property tax returns for the fiscal years of 2013/14, 2014/15 and 2015/16 for the Three Properties indicated that she was aware of the tenancy and the rental of the Three Properties in March 2016. Furthermore, the subsequent record of her messages on WhatsApp showed that she continued to know that the Three Properties were subject to tenancy. The trial judge was of the view that the Defendant failed to prove that the Plaintiff had deliberately concealed relevant information or covered up anything to deceive anyone prior to the signing of the Agreement for Change of Title. The Defendant also failed to prove that the consideration for the transactions of the Three Properties was unreasonable. Therefore, the trial judge held that the Agreement for Change of Title was valid and binding on both parties. 26.Regarding the third dispute above, the trial judge pointed out that after YTT had received the draft agreement for the sale and purchase of Properties B and C from YTS on 24 April 2017, they had not raised any objection to its content until 16 June when they mentioned for the first time that Properties B and C should not be sold with tenancy and that vacant possession should be delivered up. The trial judge noted that YTT’s reply on 21 June alleged that the Defendant did not know that the Three Properties were subject to tenancy before signing the Agreement for Change of Title, but she held that the Defendant knew clearly that the Three Properties were so. Moreover, the Agreement for Change of Title provided that the properties were to be transacted on an as-is basis, but did not provide that vacant possession should be delivered up. The trial judge held that the Defendant clearly knew that the Three Properties were subject to tenancy and vacant possession could not be delivered up on 26 June 2017; hence, the Defendant’s insistence on delivery up of vacant possession was unreasonable. It was not reasonable for the Defendant to reject the agreements for the sale and purchase and refuse to complete the transactions. Accordingly, the trial judge held that the Defendant was in breach of the Agreement for Change of Title. 27.Regarding the fourth dispute above, the trial judge held that the Mother was entitled to the rental income of the Three properties until the Agreement for Change of Title was duly performed. Therefore, the Plaintiff’s claim for the loss of the rentals of Property A was invalid. As for the Plaintiff's other losses, the trial judge ordered that the assessment of damages be heard by a master. 28.In addition, the trial judge held that the Defendant failed to prove that she was dispossessed of Properties B and C by the Plaintiff for a long time. Moreover, it was the Defendant who was in breach of contract. Even if she suffered any loss of rental income from Properties B and C, it was caused by her own fault. The Defendant’s counterclaim was not substantiated and was dismissed. Grounds of Appeal and Analysis 29.In the following, we shall discuss the grounds of appeal raised by the Defendant based on her notice of appeal, skeleton submissions for the appeal and oral submissions at the hearing. 30.Regarding the trial judge’s ruling that there was the Oral Agreement among the Plaintiff, the Defendant and the Mother that the Mother was entitled to the rentals until she passed away, the Defendant submitted that the trial judge did not explain the basis on which the Plaintiff and the Mother were inferred to be reliable witnesses. She submitted that the fragmentary text messages exchanged on WhatsApp between the Defendant and the Mother as extracted by the trial judge were insufficient to prove the consent or promise made by the Defendant in the Oral Agreement. The Oral Agreement was fabricated by the Mother as an excuse to cover up her unauthorised act of signing the tenancy agreements without the owners’ permission; hence, the Mother “in her capacity” as a witness had a “conflict” of interest. The trial judge’s reliance on the tone of the parties’ dialogues to show the existence of the Oral Agreement was far-fetched. The Defendant asked, if the children were willing to let the Mother go on disposing of the Three Properties at will after 2011, why did they need to make an unnecessary move to change the title to the properties and make an oral agreement? It would have been fine for them to refrain from handling the procedure for the change of title. 31.We must point out that in the judicial system of Hong Kong, it is the trial judge’s duty to assess and weigh the witnesses’ credibility and evidence. An appeal is not a retrial. The trial judge has the benefits that an appellate court does not have when finding the facts. For example, the trial judge has the opportunity to hear the evidence directly, observe a witness’s demeanour, behaviour, reaction, expression, tone and so on to assess whether the witness is credible and the evidence reliable. An appellate court has no such benefits. 32.The appellate court respects and relies on the findings of fact at the trial not only because the trial judge has the above benefits in assessing credibility of witnesses. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. The trial on the merits should be the “main event” rather than a “tryout on the road”(see Yu Man Fung Alice v Chiau Sing Chi Stephen [2021] HKCA 1456, paras 6-8, citing Anderson v City of Bessemer (1985) 470 US 564, 574-575). 33.Furthermore, according to the trial procedure, the trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged (see Yu Man Fung Alice v Chiau Sing Chi Stephen [2021] HKCA 1456, paras 6-8, citing Housen v Nikolaisen [2002] 2 SCR 235, §14). 34.Accordingly, in accordance with long-established principles, an appellate court will not hastily interfere with the trial judge’s assessment of witnesses’ testimony and other evidence, including whether the trial judge is satisfied with the testimony of a witness, and will not hastily overturn the trial judge’s findings of fact. To persuade an appellate court to overturn the trial judge’s finding of facts, the appellant must have sufficient grounds to prove that the decision is plainly wrong, including the trial judge ignoring crucial evidence, misinterpreting evidence, making a finding of facts that is not supported by the evidence, or making a finding that no judge in his or her rational judgment could have made. This is a rather high threshold, and the appellant is not entitled to assert that the decision was manifestly wrong simply because the judge did not accept his evidence or submission. See: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd (unreported) CACV 11/2015, judgment dated 27 November 2015; and Tsang Chun Duen (transliteration, 曾春段) v Manulife (International) Limited (unreported) CAMP 37/2017, judgment dated 7 December 2017. 35.We believe that in this case, the trial judge made the ruling, based on sufficient evidence, that there was the Oral Agreement among the Plaintiff, the Defendant and the Mother, which was not manifestly wrong. As a matter of fact, the Three Properties had been rented out since 2011 and the Defendant did not deny that the rents were always collected by the Mother for her only use as she liked. The documentary evidence includes the record of the messages exchanged on WhatsApp between the Defendant and the Mother from 7 December 2016 to 28 April 2017, which shows the following messages from the Mother to the Defendant:
There are also messages from the Defendant to the Mother:
36.As the trial judge mentioned, the above messages showed that the Defendant all along knew and agreed that the Mother received the rents for the Three Properties. The Defendant said that these were “fragmentary conversations”, but she brought up other snippets as follows:
37.We believe that these conversations are also consistent with the testimonies of the Plaintiff and the Mother; that is, the three parties had reached a consensus that the Mother would collect the rents for the Three Properties. By 2017, the Defendant asked for “dividing up the family properties and living apart”. The Mother was willing to give up collecting the rents by herself once the Defendant and the Plaintiff reached an agreement for the exchange and transfer of title. 38.The judgment of the trial judge was not only based on the testimonies of the Plaintiff and the Mother, but also consistent with the objective facts and the documentary evidence. The Defendant failed to prove that the judgment of the trial judge was manifestly wrong and therefore her grounds for appeal against the issue about the Oral Agreement were not substantiated. 39.Regarding the ruling of the trial judge that the Defendant was in breach of the Agreement for Change of Title, the Defendant submitted that although she filled out the property tax returns for 2015/16 and the years before, it did not mean that she knew the situation of the tenancy in 2016/17 or thereafter. The Defendant agreed in 2013 that the Mother would collect the rents, but this did not mean that the Defendant would agree so regarding other future tenancy. As the purchaser under the contract and one of the co-owners, the Defendant had the right to know the status of the of the properties in the transactions, but the Plaintiff did not provide her with the relevant information. At the time of signing the Agreement for Change of Title, she was not informed of the fact that the tenancy agreements were not signed by the owners. These tenancy agreements, which were not protected by law, might pose a risk of future tenancy disputes or applications for mortgage loans being rejected. The Agreement for Change of Title did not provide that the sale and purchase of the properties were subject to tenancy. While it provided that the properties would be transacted on an “as-is basis”, it was supposed to be a reference to the “hardware” such as the existing structure and fittings of the properties, rather than the “software” such as whether they were subject to tenancy. In usual conveyancing transactions, even if the property was subject to tenancy at the time when the preliminary agreement was signed, the vendor could still deliver up vacant possession on the date of completion. Therefore, it should not be ruled that the Defendant had no reasonable ground to refuse completion simply because the Defendant was aware of the existence of the tenants. In fact, the Defendant only knew the actual situation close to the date of completion; otherwise, she would have no motive to refuse to perform the Agreement. 40.In usual conveyancing transactions, if there is no express provision in the agreement for the sale and purchase, it will be legally implied that vacant possession should be delivered up on completion: see Wong Yuk Ying v Chan Pui Shan May (CACV 265/2013, 4-3-2016), paragraph 22.1; Strong Beauty Ltd v Gain Legend Industries Ltd [2008] 1 HKLRD 570, paragraph 13. However, in the present case, this is not an ordinary agreement for sale and purchase of properties. What the Plaintiff and the Defendant signed was an agreement for the change of the title. In each of the Three Properties, what they wanted to assign to each other was not the title to and the entire ownership of each of them, but only a half share in each of them, as the other party had already owned the remaining half. According to law, as co-owners, both parties had unity of possession over each property prior to the transaction. In our view, when a co-owner sold his or her interests in a property to another co-owner, there would not be a contractual term legally implied into their transaction that the vendor had to deliver up vacant possession of the property. 41.This type of contract is not a “contract of utmost good faith”. The Plaintiff was not legally obliged to disclose all the information about Property B and Property C to the Defendant before signing the agreement. The Defendant said that she repeatedly requested to inspect the tenancy agreements before signing the agreement but was rejected by the Plaintiff. We believe that this does not prove that the parties agreed to have the properties assigned clear of tenancy. If the Defendant believed that she did not have sufficient information, she could refuse to sign the Agreement for Change of Title at that time. In fact, the Defendant had already authorised the tenancy of the properties. When the Defendant signed the agreement, she knew and agreed that Property B and Property C were subject to tenancy, and she certainly knew that she had not signed the tenancy agreements for the two properties. 42.Even though the Defendant did not read the tenancy agreements at that time and did not know when the tenancy agreements would expire, she did not add an express term in the Agreement for Change of Title that vacant possession of the properties should be delivered up on completion. As a result, the Agreement for Change of Title does not expressly provide that Property B and Property C were sold subject to tenancy or that vacant possession should be delivered up. Under these circumstances, we consider that there was no agreement between the parties as to whether the transactions were subject to tenancy or whether vacant possession should be delivered up. If the tenancy expired and the tenants moved out by the date of completion, vacant possession of the properties would be delivered up. If the tenancy had not expired, the properties would be assigned subject to tenancy. Therefore, on the date of completion, the Defendant was not entitled to vacant possession of Property B and Property C as of right. The trial judge correctly held that the Defendant was the party in breach of contract. 43.The Defendant mentioned in her skeleton submissions that the copies of the tenancy agreements provided by YTS at a later time “could be forged after the Agreement was signed”, which was unfair to the Defendant. We consider that there is no reasonable ground for the Defendant to make such a serious allegation. She did not give any notice pursuant to the Rules of the High Court at the trial that she would challenge the authenticity of those tenancy agreements, and therefore this Court will not accept her speculative allegation. 44.The Defendant submitted in her skeleton submissions for appeal that the Agreement for Change of Title did not provide that the transaction was subject to the condition of “must buy and sell” or was “specifically enforceable”. However, this is not an arguable ground of appeal: a contract to convey interests in land is usually enforceable by an order for specific performance granted by a court. In addition, the Defendant mistakenly thought that the court would just order her to perform the Agreement unilaterally and to assign the properties to the Plaintiff for free. This was her own misunderstanding. The purpose of the order for specific performance is indeed to enforce the Agreement for Change of Title as a whole (including the obligations of both parties thereunder). It was made on the condition that the Plaintiff was willing, able and ready to perform his contractual obligations. It would never allow the Plaintiff to acquire the Defendant’s properties without consideration. 45.The Defendant also submitted that she believed that the transaction was conducted in the form of “deeds of exchange”, while the Plaintiff believed that it was conducted in the form of “assignments”. Therefore, the two parties did not reach any consensus at that time and the Agreement should be deemed invalid. We consider that the content and wording of the Agreement indicated that the parties regarded it as a proper and binding contract. A court would not hastily rule that the Agreement was invalid just because it does not contain the full particulars. We consider that the Agreement for Change of Title was a valid contract for it clearly stipulated the title to each of the properties, its value, the means of change of title and the date of completion. In addition, the Defendant submitted the Agreement to the Inland Revenue Department for stamping, which showed that she believed it to be a valid document. The parties later failed to complete the transaction simply because the Defendant insisted on delivery up of vacant possession of Property B and Property C. At that time, YTT did not say that the Defendant refused to complete because the parties had different views as to whether the transaction should be conducted in the form of an “exchange” or a “sale”. 46.Regarding the question of whether the Defendant had been dispossessed of the properties by the Plaintiff, the Defendant asked, if the Plaintiff entered Property A just due to the typhoon and he then locked it up instead of doing so for the purpose of preventing the Defendant from having access to it, why did the Defendant not give the Defendant the key afterwards? In a letter of reply dated 24 January 2019, the Defendant requested the Plaintiff to return the keys to the Three Properties and to stop interfering with the Defendant’s activities in those units. 47.Regarding the Defendant’s allegations, the trial judge said in the judgment as follows:
48.The trial judge ruled that the Defendant failed to prove that the Plaintiff had occupied Property B and Property C for a long time, which was her finding of fact. We consider that the Defendant has failed to provide any valid grounds to show any manifest error in the judgment of the trial judge and therefore her complaint in this regard is not substantiated. 49.Moreover, the trial judge mentioned in paragraph 36 of the judgment that “the Plaintiff and the Defendant continued to agree that the Mother could keep collecting the rents until the Plaintiff got married”. The Defendant submitted that the trial judge formed this view “out of nothing”. However, according to the judgment, the Mother confirmed this when she gave evidence at the trial. The Defendant did not produce a transcript of the Mother’s testimony given at the trial to prove that the Mother did not say so. Therefore, the Defendant’s complaint is not substantiated. 50.Finally, the Defendant complained that the trial judge disclosed in the judgment the family background and private conversations of the parties involved in the case without the parties’ consent, which was suspected of having violated personal privacy. We consider that this complaint is not substantiated either. Trials in Hong Kong courts are generally held openly and judgments are generally public documents. Judges must give reasons for their judgments. It is nothing inappropriate to mention the background and evidence of a case in a judgment, and in fact this is inevitable. 51.To sum up, in this appeal, none of the grounds put forward by the Defendant is substantiated. Accordingly, the appeal should be dismissed. Defendant’s Affirmation Filed on Appeal 52.The Defendant filed an affirmation on 7 January this year, containing the transaction record of Luk Yeung Sun Chuen for the past six months. She sought an order requiring the Plaintiff to pay damages in lieu of assignment of title which should be equivalent to half of the value of Property A. As the Defendant’s appeal is unsuccessful and the affirmation does not materially affect the outcome of the case, it does not meet the requirements for admitting new evidence on appeal (see Ladd v Marshall [1954] 1 WLR 1489). Hence, we have disallowed the Defendant to adduce the affirmation as evidence on appeal. Conclusion 53.By reason of the matters explained above, it is our ruling that the Defendant’s submissions are not substantiated and the appeal is dismissed. 54.The parties at the trial agreed that the losing party should bear the costs of the successful party. Accordingly, we order that the Defendant do pay the Plaintiff the costs of this appeal. The Plaintiff shall be at liberty to file his list of costs to the court and serve it on the Defendant within 14 days of this judgment. (As the Plaintiff is unrepresented, the costs shall be calculated pursuant to Order 62 rules 28A of the Rules of the High Court (Cap. 4A, Laws of Hong Kong)). The Defendant shall be at liberty to file her objection in writing and serve it on the Plaintiff within 14 days thereafter. This Court shall assess the costs summarily on paper.
The Plaintiff / Respondent: acting in person The Defendant / Appellant: acting in person Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.
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