Lam Mui As the Lawful Administratrix of the Estate of Wong Shing, Deceased and Another v. Frontrich Investments Ltd and Others
Read the full judgment text of HCA 34/2021 on BabelCite. This High Court CFI judgment was delivered on 30 August 2024.
1. Before this court are 2 substantive matters for determination pursuant to the order dated 30 January 2024 of DHCJ M K Liu, namely:
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HCA 34/2021 [2024] HKCFI 2295 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 34 OF 2021 ________________________
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________________ D E C I S I O N ________________ A. Introduction 1.Before this court are 2 substantive matters for determination pursuant to the order dated 30 January 2024 of DHCJ M K Liu, namely:
2.P2 makes the Retrospective Leave Application notwithstanding his breach of §5 of the order of Wilson Chan J dated 14 April 2023 (“the April 2023 Order”) requiring such application to be taken out within 21 days thereafter (namely, on or before 5 May 2023). 3.In the Injunction Application, the Plaintiffs seek injunctions to restrain:
(collectively, “the Defendants”). 4.At the conclusion of the hearing, the Decision was reserved which I now give. B. Relevant background and chronology 5.These proceedings have a complicated history. It is important to set out the events that occurred since their commencement and their procedural history in some detail given their materiality to the exercise of the Court’s discretion. 6.These proceedings were commenced on 8 January 2021 by P1 (as administratrix of the estate of Wong Shing (“the Deceased”)) and P2 (one of her sons) by way of a writ endorsed with the statement of claim which was amended and filed on 14 January 2021. The Plaintiffs seek (inter alia) a declaration that P1 (in her capacity as the administratrix of the estate of the Deceased) is entitled to possessory title of the Occupied Area; and an order that the estate of the Deceased or P1 be the new registered owner of the Occupied Area. 7.On 8 January 2021, the Plaintiffs also issued a summons for injunctive relief (“the Injunction Application”) which came before the Court on 15 January 2021. Undertakings were given by D1, D2 and D3 (“the Undertakings”) as described in the schedule to the order (“the January 2021 Order”), pending the determination of the Injunction Application or further order of the Court. Directions were given for the filing of evidence and for the substantive hearing to be adjourned to a date to be fixed with 3 hours reserved. The Plaintiffs seek the injunctions mentioned in §3 above. 8.P1 passed away on 14 May 2021. 9.Pleadings closed on 8 July 2021. 10.Some 14 months later, on 8 August 2022, the Plaintiffs[3] filed a notice of intention to proceed and on 24 August 2022, they filed a summons dated 22 August 2022 (returnable on 9 September 2022) seeking relief that was identical to that sought in the Injunction Application. 11.By consent, that application was amended to further restrain D1 from doing certain acts on the Occupied Area (“the Further Injunction Application”). 12.At the hearing of the Further Injunction Application on 9 September 2022, directions were given for the filing of further evidence upon D1’s further undertaking (“the Further Undertaking”), with the substantive hearing adjourned to a date to be fixed. 13.The Plaintiffs took no steps to progress the hearing of the Injunction Application and/or the Further Injunction Application. 14.It was on D1’s initiative, commencing on 11 January 2023, that the substantive hearing of the Further Injunction Application came to be fixed for hearing on 14 April 2023 before Wilson Chan J. (1) The 14 April 2023 hearing and order 15.2 days prior to that hearing, the Defendants came to understand that P1 had passed away 2 years earlier. When D1 raised this matter at the hearing, Wilson Chan J gave directions for the filing of evidence and ordered P2 to apply for a carry-on order within 21 days (“the April 2023 Order”). 16.Later the same day, P2 (as a walk-in[4]) obtained an appointment for 24 October 2023 at the Probate Registry. (2) The 26 July 2023 hearing and order 17.On 3 May 2023, Yu Sun Yau Mak & Lawyers (“YSYM”) filed a notice to act for the Plaintiffs in place of MK Lam & Co (“MKL”)[5]. 18.On 11 May 2023, D1’s solicitors sought directions from the Court having regard to the Plaintiffs’ breach of the April 2023 Order and requesting a hearing date for a hearing on costs and dismissal of the Further Injunction Application. That letter was copied to YSYM as were the Court’s directions given on 12 May 2023. 19.The next step in the proceedings was again not taken by YSYM/P2 but by D1 giving notice to YSYM on 16 May 2023 that the date for the hearing ordered on 14 April 2023 would be fixed on 23 May 2023. That resulted in the hearing date of 26 July 2023 fixed by agreement. 20.Despite the matters stated in §18 above, surprisingly, YSYM did not request a copy of the sealed April 2023 Order from D1’s solicitors Justin Chow & de Bedin LLP (“JCC”) until 12 July 2023. 21.When JCC received the request, it realised that MKL had failed to have the April 2023 Order drawn up despite JCC’s request made to MKL to be provided with a copy when it became available. To save time, JCC prepared a draft order and provided the same to YSYM on 14 July 2023. 22.On 19 July 2023, JCC declined YSYM’s proposal that the hearing fixed for 26 July 2023 be vacated and adjourned given the absence of any sufficient reason and/or justification from P2. 23.On 20 July 2023, P2 took out an ex parte summons returnable on 26 July 2023 for a carry-on order. 24.Upon hearing P2’s ex parte application on 26 July 2023, DHCJ MK Liu dismissed the ex parte application and ordered that the hearing of the Injunction Application and the Further Injunction Application (collectively “the Injunction Applications”) be adjourned to a date to be fixed for substantive argument before him with 3 hours reserved (“the 26 July Order”). (3) The 1 February 2024 hearing date 25.YSYM/P2 failed to take any steps to fix a date as directed by the 26 July Order. Again, it was D1 who gave notice on 15 September 2023[6] for the date to be fixed. On 20 September 2023, by agreement, the hearing date was fixed for 1 February 2024. (4) The 30 January 2024 hearing and order 26.2 weeks before that hearing, on 18 January 2024, P2 filed the 2024 Summons, returnable on 30 January 2024 (one day before the adjourned substantive hearing), containing the Retrospective Leave Application and for leave to withdraw the Further Injunction Application. 27.At the hearing on 30 January 2024, DHCJ MK Liu made the order described in §1 above and vacated the hearing fixed for 1 February 2024. 28.Meanwhile, on 9 November 2023, letters of administration in respect of the estate of P1 were granted to P2. 29.On 23 May 2024, P2’s solicitors sought the Defendants’ consent to the Retrospective Leave Application. The Defendants refused as they oppose both the Retrospective Leave Application and the Injunction Application. C. The Retrospective Leave Application 30.Mr KM Chong and Mr Alvin Cheng, counsel for the Plaintiffs, acknowledged that there has been delay on P2’s part in applying for the carry-on order. They referred to P2’s 7th affirmation filed on 18 January 2024 (P2 7th) which gave the following reasons for the delay:
31.Both Mr Edward Tang, counsel for D1, and Mr Ryan Chan, counsel for D2-D4 referred to §3/5/2 which states that where a party seeks a retrospective extension of a court-imposed deadline, the court will consider O.2 r. 5 (relief from sanctions) and O.1A (underlying objectives). 32.The relevant circumstances to be taken into consideration set out in O.2 r. 5[8]. (1) Adequacy of P2’s explanation for the delay 33.The Defendants highlighted the fact that P2 failed to provide any adequate explanation for the delay. They submitted that the Retrospective Leave Application is blatantly abusive and should be dismissed. 34.The requirement of an explanation for delay on an application for time is the norm. Cases where it may be appropriate to exercise a discretion to extend time notwithstanding the absence of an adequate explanation for the delay are an exception to the rule that an adequate explanation is normally required: see Wing Fai Construction Co Limited v Cheng Kit Yin Kelly, CACV 249/2010, 8 April 2011 at §28. 35.The second of the 2 reasons given for the delay[9] cannot possibly constitute a valid reason for not complying with a Court order and falls to be rejected out of hand. It is not for the litigants (or those with an interest in P1’s estate) to disregard Court-imposed deadlines. 36.It is apparent from P2 7th that, essentially, P2 seeks to pin the blame on MKL in not rendering proper advice and being uncooperative in handing over its files to YSYM. 37.P2’s explanation does not withstand scrutiny for the reasons below. 38.At the hearing, Mr Eugene Tang, counsel for D1 referred to P2 7th where P2 sought to explain in detail why it took him so many months from the April 2023 Order to eventually make the application. It is suggested that despite telling MKL of P1’s demise, MKL did not give him any advice as to the need for a carry-on order and that was the reason P1’s death was not disclosed. 39.Mr Tang invited attention to the fact that what P2 omitted from that explanation is his own conduct which contributed not only to the non-disclosure of P1’s death, but also the concealment of the suggestion that she did not in fact pass away. He referred to P2’s 3rd affirmation dated 7 June 2023 filed on 27 June 2022 (“P2 3rd”)[10] where P2 stated (at §1) that
40.P2 not only knew that P1 passed away more than 13 months earlier but that P1 herself became the administratrix of the Deceased’s estate when letters of administration were granted by the Probate Registry of the High Court to her on 9 August 2013[11]. P2’s statement in P2 3rd set out above inevitably raises serious questions as to his integrity and honesty. 41.That aside, P2’s conduct since the April 2023 Order also merits closer consideration. 42.P2 apparently became dissatisfied with MKL in April 2023 and YSYM filed a notice to act on 3 May 2023 in place of MKL. Counsel was instructed and represented P2 at the April 2023 hearing. As P2 attended the hearing, it defies belief that the outcome of that hearing was not explained to him. In any event, Counsel must be an alternative source from whom YSYM could have ascertained the nature of the April 2023 Order. There is no explanation as to why that was not done. 43.It is clear from the chronology that on 11 May 2023, YSYM was aware not only of the existence of the April 2023 Order but also that P2 was allegedly in breach. There is no evidence of any enquiries made by YSYM to the Court or JCC regarding the April 2023 Order. 44.On 20 July 2023 P2 made his application by way of an ex parte summons for a carry-on order. Pausing here, it is to be noted that as of 20 July 2023, P2’s siblings had not even given their verbal consent to P2’s application[12]. 45.While P2’s ex parte summons was dismissed on 26 July 2023, he did not make his Retrospective Leave Application until 18 January 2024. He has not proffered any valid explanation for this delay of over 6 ½ months. 46.There is an affirmation dated 29 January 2024 from Mr Sun Po (“Mr Sun”) of YSYM seeking to offer an explanation for the delay. It referred to P2’s visit to the Probate Registry immediately after the hearing in April 2023[13] to obtain an appointment for a grant to P1’s estate. 47.YSYM’s advice[14] to P2 was to apply for retrospective leave after having obtained the grant[15], apparently to save time and costs. After P2 obtained the grant on 9 November 2023, YSYM began to prepare the papers for the present application. 48.That explanation is somewhat disingenuous since YSYM was responsible for the ex parte application made on 20 July 2023. 49.More fundamentally, P2’s attempt to blame the delay on his former legal representatives is a nonstarter as Mr Chong had to acknowledge. In Wing Fai Construction Co Limited (in liquidation) v Yip Kwong Robert (2011) 14 HKCFAR 935, Ma CJ held (at §75 (11)) as follows:
50.Despite accepting that principle, Mr Chong had the temerity to submit (without citing any authority in support) that it is subject to a rider, namely, that the other party suffered no prejudice. Such conduct is unbecoming of counsel. 51.On the question of prejudice, the Defendants had been bound by their undertakings given on an interim-interim basis for more than 3 ½ years. That fact alone must constitute prejudice. (2) The Plaintiffs’ litigation conduct 52.In Top One International (China) Property Group Co Limited v Top One Property Group Limited [2011] 1 HKLRD 606 at §41, Fok J (as he then was) set out guidelines the Court adopts when scrutinising the explanation proffered by the defaulting party:
53.P2 and/or his legal representatives’ approach to litigation and Court orders/directions is telling. Section B above, inter alia, provides a chronology of the relevant events in the present litigation. It is replete with examples of a cavalier approach adopted by the P2 to litigation. For example:
54.Mr Ryan Chan, counsel for D2 and D3, submitted that given the matters considered above, this is an appropriate case where the Court should find as it did in Miranda Gems (HK) Limited v Jose Miranda da Costa Jr & Anor [2014] 6 HKC 582 at §76 that “enough is enough[16]” and to “put an end to the games being played” and that P2’s litigation conduct is “as bad as it gets[17]”. 55.He submitted that the Court’s primary aim (to secure a “just to resolution of the disputes in accordance with the substantive rights of the parties”) does not necessarily mean that relief against sanction must be granted, even if the result is that the party in breach would be shut out from litigating its claim. Otherwise it would result in relief being granted in every case. (3) Conclusion 56.In my view, P2’s non-disclosure and concealment of P1’s death alone merits the refusal of his application for retrospective leave to carry-on. Such conduct cannot be condoned. It also belies P2’s integrity and honesty. 57.That aside, P2’s litigation conduct described above is wholly unacceptable and merits the strongest judicial disapproval. Coupled with the woefully inadequate (not to mention dishonest) explanations proffered for the delay, they lead to the ineluctable outcome that the application for retrospective leave must fail. 58.The refusal to grant retrospective leave to P2 would have the consequence that P1’s estate would no longer be able to pursue, inter alia, the substantive claim of the Deceased having acquired a possessory title to the Occupied Area. 59.In anticipation of such an outcome, Mr Chong reminded the Court that the Retrospective Leave Application is a mere procedural matter. As a grant to P1’s estate has now been made to P2, there is nothing to prevent P2 from commencing fresh proceedings against the Defendants the day following the Court’s refusal, suggesting that any such refusal would be contrary to the objectives of the CJR. 60.Mr Chong’s submissions had the trappings of a challenge to the Court. 61.His primary submission is that if P2’s application to carry on the claim of the Deceased’s estate against D1 to D3 is dismissed, although P2 would not be entitled to carry on the proceedings of behalf of the Deceased’s estate, somebody else could. The dismissal is no more than procedural. Someone else could commence a new action against the Defendants. 62.His so-called fall-back position is that as a matter of law, P1 had been representing the Deceased’s estate. On P1’s death, P2 obtained a grant of letters of administration to P1’s estate. That grant entitles him to sue on behalf of P1’s estate. However, P2 cannot sue on behalf of the estate of the Deceased unless this Court were to exercise its discretion and make the carry-on order. 63.Mr Chong sought to persuade the Court not to dismiss the retrospective leave application. His reasoning is that if P2 has a right to represent the estate of P1 under the Probate and Administration Ordinance and P1 had a right to represent the estate of the Deceased, P2 would be the appropriate person to whom the order to carry on should be granted despite the delay. While P2 in his personal capacity may be to blame for the delay, the Deceased’s estate had done nothing wrong. Mr Chong suggested that P2 could be penalized for costs. 64.When pressed by the Court to clarify whether his submission amounted to stating that the Court has no option but to allow the Retrospective Leave Application, Mr Chong replied that it is a matter for Court’s discretion. 65.The notion that somehow P2’s shortcomings could be written off simply by penalizing P2 by way of a costs order is misguided. 66.I do not consider that the Court should exercise its discretion in P2’s favour. The fact that P2’s integrity is highly questionable is troubling and his approach to conducting litigation is next to scandalous. D. The Injunction Application 67.With the dismissal of the Retrospective Leave Application, P1 would be unrepresented in these proceedings, leaving P2 as the only party pursuing the Injunction Application. 68.The Defendants submitted that P2 has no locus to pursue the injunctive relief sought. D1 invited attention to the fact that the Plaintiffs’ stated purpose of the Injunction Application as set out in §1 of P2’s 1st affirmation dated 8 January 2021 (“P1 1st”) is the following:
69.That stated purpose is consistent with §§11 and 12 of the ASOC:
70.It is reflected in prayer (b) of the ASOC where the Plaintiffs seek a “declaration that [P1] is entitled to possessory title of the Occupied Area.” Relevantly, no similar declaration is sought in the ASOC for P2. 71.In oral submissions, there was some suggestion that this is a case of joint occupation by the Wong family since the 60s or 70s. But that is inconsistent with the evidence[18] and P2’s own pleaded case. 72.Moreover, the only evidence from P2 of his alleged use and/or occupation of the Occupied Area is to be found in P2 1st at §29 where P2 describes his use and enjoyment of the Occupied Area in these terms:
73.Since from inception the Injunction Application was made for the exclusive purpose of maintaining P1’s use and enjoyment of the Occupied Area, upon her death, there is no valid basis for continuing to pursue the Injunction Application. 74.In so far as P2 seeks to cure the defect by amending the existing ASOC “to include, inter alia his claim for declaratory relief for squatter’s title to the Occupied Area along with the estate of [the Deceased][19]”, I accept D1’s submission that the Court has regard to the existing state of the pleadings. Despite submitting in the Plaintiffs’ skeleton submissions for the substantive hearing on 1 February 2024 (which has since been vacated) that P2 would in due course amend the ASOC, nothing has been done in the 6 months that have since elapsed. 75.Leaving aside for the moment this fundamental point that the basis of the injunction itself has fallen away, the Defendants submitted that even on the Plaintiffs’ claim to adverse possession, there is no serious issue to be tried. Other than assertions by P2 that the Occupied Area was used by the Deceased as his family as their “homeland”, there is no elaboration of what that term is supposed to mean. 76.The Defendants take issue with both the factual and exclusive occupation of the Occupied Area as well as the intention of the Wong family or the Deceased in dispossessing the Occupied Area. 77.The evidence that the Plaintiffs rely on for adverse possession consists of
78.As regards those matters,
79.D2’s evidence[23] is that there are no structures on the Occupied Area other than wire fences and that the Plaintiffs’ family had moved out from House 3 before 1989 and had never resided in any of the Houses 3A to 3E[24] which, like House 3, are not situated within the Occupied Area. 80.That is corroborated by the addresses of the Deceased and of P1 (P2’s father and mother) shown in the letters of administration granted to P1 of the Deceased’s estate which are not at the Occupied Area or in Man Kok Tsui Village. 81.P2 also admitted[25] that for the convenience of his work he also lives at Ngau Keng Village. There is no evidence as to when he started living there. 82.There is a letter before action dated 16 December 2020 from P2’s solicitors to D2 which alleged that P2 had all along been occupying and living in squatter structures namely Houses 3, 3A to 3E. Relevantly, the squatter structures are not within the Occupied Area. Conclusion 83.For the reasons stated above, the basis of the Injunction Application has fallen away such that the Injunction Application must be dismissed. In any event, in my view, the Plaintiffs’ evidence on adverse possession does not meet the standard of a serious issue to be tried. Orders 84.The 2024 Summons is dismissed with an order nisi of costs in favour of the Defendants, with certificate for counsel, such costs to be summarily assessed and payable forthwith. 85.The Injunction Application be dismissed with an order nisi of costs in favour of the Defendants, with certificate for counsel, such costs to be summarily assessed and payable forthwith.
Mr K M Chong and Mr Alvin Cheng, instructed by Yu Sun Yau Mak & Lawyers, for the 1st to 2nd Plaintiffs Mr Edward Tang, instructed by Justin Chow & de Bedin Solicitors LLP, for the 1st Defendant Mr Ryan Chan, instructed by Ellen Au & Co., for the 2nd to 4th Defendants [1] See the description in §7 of the ASOC and shown coloured orange on the plan annexed to the ASOC filed on 14 January 2021. [2] At the hearing, it was confirmed that no injunctive relief is being sought against D4. [3] The notice was filed despite the death of P1. It is to be noted that as of that date, no grant of letters of administration had been made to the estate of P1. [4] P2 exhibited the appointment letter dated 14 April 2023. He went to the Probate Registry immediately after the hearing before Wilson Chan J. See §46 below. [5] It is P2's own evidence that by April 2023, he became dissatisfied with the services rendered by MKL and began looking for new solicitors. [6] The time lapse between the hearing on 26 July 2023 and 15 September 2023 was over 7 weeks. [7] The siblings did not give their verbal consent until 24 July 2023: see P2 7th at §14. [8] They include the following:
[9] See §30(ii) above. [10] P2 3rd is exhibited to the affirmation of Chow Justin Ting Fun dated and filed on 26 January 2024 at B2//57/445. [11] See P2's affirmation dated 8 January 2021 ("P2 1st") at §3. [12] See footnote 7 above. [13] At §6. [14] Mr Sun did not mention the date when he rendered that advice. [15] At §8. [16] See Wing Fai Construction Co Ltd (in liquidation) v Yip Kwong Robert (2011) 14 HKCFAR 935 at §4. [17] See the written submissions of D2-D4 at §50. [18] See §§72 and 81-82 below. [19] See the Plaintiffs' written submissions at §10. [20] P2 1st at §9. [21] Despite P2's evidence that he had instructed the surveyor, Winner Survey Co, to ascertain the exact boundary of the Occupied Area 3 1/2 years ago, to this day there has been no draft report no application for directions to adduce expert evidence. [22] P2 1st at §9. [23] D2's affirmation filed on 14 January 2021 at §5. [24] It is also D2's evidence that Houses 3A to 3E were unlawfully built by P2 in 2011/2012 for rental purposes. [25] P2 1st at §22. | |||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 34/2021