Choi Wai Kwong v. Choi Wai Keung
|
DCCJ 6076/2019 [2026] HKDC 1614 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 6076 OF 2019 ________________ BETWEEN
________________ IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4763 OF 2023 ________________ BETWEEN
________________ IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2168 OF 2024 ________________ BETWEEN
________________
___________________ JUDGMENT ___________________ 1.By an order of this court dated 9 October 2025, the above three actions were to be heard together. 2.These actions essentially stem from a dispute in land between two brothers who inherited certain pieces of land from their father dating back to an Estate Division Agreement (written in Chinese) dated 24 April 1998 (the “EDA”, Trial Bundle B2, p. 304 and 305). 3.DCCJ 6076/2019 (“6076”) is the main action. The plaintiff, Choi Wai Kwong, is the youngest of the three brothers and is seeking Lot 527A3 (the “Garden”) and half interest of Lot 527A2 (the “Road”) (together, the “Disputed Lands”) to be restored to him by the defendant, Choi Wai Keung, who is the second eldest brother. 4.DCCJ 4763/2023 (“4763”) concerns the plaintiff’s application for an injunction restraining the defendant from obstructing a certain assess road (the “Path”) to various areas including the Disputed Lands and the plaintiff’s house. An interlocutory injunction has already been granted by this court on 25 March 2024 (the “Interlocutory Injunction”). 5.The defendant has issued a Summons to discharge the Interlocutory Injunction on 3 November 2025 (Trial Bundle A1, p. 117-1 – 117-2). This Summons has been dismissed by the Court on 15 December 2024 before the hearing of the main trial. The reasons for decision have also been read out in Court so there is no need to repeat the same here. 6.DCCJ 2168/2024 (“2168”) was initiated by the plaintiff in acting in person subsequent to obtaining the Interlocutory Injunction in 4763. It concerns seeking another injunction due to the defendant’s non-compliance of the Interlocutory Injunction. Thus, the factual matrix of 2168 is the same as 4763. 7.The plaintiff has subsequently commenced a contempt of court action (DCMP 1525 of 2025). 8.On 17 July 2025, this court found the defendant guilty of contempt and after considering his mitigation, gave a suspended sentence of 4 week’s imprisonment. This appeared to have resolved, at least for the time being, the defendant’s non-compliance issue. Thus, 2168 and 4763 can be dealt with together (except for the additional issue of damages raised in 2168). 9.The plaintiff claims various damages in 6076 and 2168 as below. 10.The plaintiff claims for damages which concerned, amongst others, parking space rental fees due to being denied vehicle access to his house (and thus his parking space) and costs for rectification work on the Road due to the bollard installed by the defendant etc. (paragraph 38 and 45 of the 6076 Re-Amended Statement of Claim, Trial Bundle A1, p. 10-11). 11.Further, the plaintiff claims for loss of rental income. He pleaded that he has rented the house on 527ARP to a tenant but the defendant has positioned “the Black Car in the garden in front of the tenant’s covered parking space preventing the tenant’s vehicle from entering” the rental house, thus “restricting the tenant’s use of the garden and access to his vehicle”. This has allegedly caused the early termination of an existing tenant, Mr. Yau in November 2018 and difficulty in procuring a new tenant (paragraphs 42-43 of the Re-Amended Statement of Claim of 6076, Trial Bundle A1, P. 10-11)) which resulted in a reduction of the rental value by half from HK$17,500 monthly to HK$8,750 starting from June 2024 (Statement of Claim of 2168, Trial Bundle A1, p. 132-135). In paragraph 44(3) of the Re-Amended Statement of Claim of 6076 (Trial Bundle A1, p. 11), the plaintiff claims HK$207,000 under this head. Background 12.The following background is not disputed (unless stated otherwise). 13.The family has 7 children of which 3 are boys, namely Choi Wai Leung (“Leung”, the eldest child), the defendant (the second eldest) and the plaintiff (the sixth eldest). 14.The father owned two pieces of land known as Subsection 1 of Section B of Lot 517 (“517B1”) and Section A of Lot 527 (“527A”) into Lot 517, both of DD112. 527A had been subdivided into Subsection 1 (“527A1”) and (what should be labelled) the Remaining Portion of 527A (“527ARP”). 15.There was a house on each of the plots, i.e. one on 517B1, one on 527A1 and one on 527ARP. 16.The father passed away intestate in September 1995. There were family discussions and the subsequent agreement was documented in the EDA dated 24 April 1998. The EDA was signed by the mother and all 7 children (Trial Bundle B2, p. 304-305). 17.Paragraphs 4, 5 and 6 of the EDA stated that Leung would inherit 517B1, the defendant 527A1 and the plaintiff “527A” respectively. 18.The content of the EDA was formally incorporated into a Deed of Family Agreement dated 12 October 1998 (“DFA 98”) prepared by Messrs. Tommy Lai & Co. solicitors. This was also signed by the mother and all 7 children. It was registered in the Yuen Long New Territories Land Registry by Memorial No. 833677 on 27 October 1998 (Trial Bundle B2, p. 356-369). DFA 98 still stated that the plaintiff inherited “Section A of Lot No. 527 in Demarcation District 112…”, i.e. 527A (Trial Bundle B1, p.365) 19.Subsequent, the Administratrix (the mother) executed the relevant Assent to vest the lots to each son accordingly. 20.According to the plaintiff (and disputed by the defendant), sometime later, the solicitors realised that “527A” should properly be labelled “527ARP” given that 527A1 had been curved from 527A. Thus, DFA 98 was amended so that the relevant plot inherited by the plaintiff was now correctly labelled as “the Remaining Portion of Section A of Lot 527 in Demarcation District 112…”. This correction was again counter-signed by the mother and all 7 children (Trial Bundle B1, p. 122). 21.This amended version was then registered in the Yuen Long New Territories Land Registry by Memorial No. 946098 on 11 January 2001 (“Amended DFA”, Trial Bundle B1, p. 116-126). 22.According to the Lot Index Plan dated 24 April 1998 (“the Lot Plan”) disclosed by the plaintiff in his Supplemental Witness Statement dated 17 July 2024 (and filed and served on 18 July 2024) (Trial Bundle B2, p. 302), 527A1 is in shape of a square roughly corresponding to the house built on it and the rest of the plot was 527ARP. 23.I note that the date of the Lot Plan coincides with the date of the EDA. 24.The plaintiff claimed that at the time of the family discussion, the three brothers had sight of this plan to verify and confirm the lot and the buildings on such when they were choosing (paragraph 7 of the plaintiff’s Supplemental Witness Statement, Trial Bundle A2, p. 295). 25.The defendant was silent on this point in all subsequent witness statements or affirmations. During the trial, under cross-examination, the defendant denied that the Lot Plan was available during the family discussion. 26.The plaintiff owned another plot of land on an adjacent lot north of 527A (Subsection 2 of Section A of Lot 517 of DD112, “517A2”). He bought 517A2 back in June 1995 from his uncle (paragraphs 5 and 25 of the plaintiff’s Witness statement, Trial Bundle A2, p.275 and 281-282). 27.In October 2009, the plaintiff mortgaged 527ARP to finance the construction of a house on 517A2 (“the Plaintiff’s House”). He repaid the mortgage 7 years later in October 2016 (Trial Bundle B1, p.175-211). 28.In 2017, the plaintiff instructed a surveyor, GLand Surveying, Planning & GIS Co. Ltd., to conduct a survey of 527ARP and the report dated 14 March 2017 is enclosed Trial Bundle B1, p. 128-146) which confirmed the boundary of 527A1 as rectangular plot roughly corresponding to the footprint of the house on it (inherited by the defendant, “the Defendant’s House”). 29.On 7 July 2017, the plaintiff executed a Deed Poll further subdividing 527ARP into Subsection 3 of Section A of Lot 527 in DD112 (i.e. the Garden) and Subsection 2 of Section A of Lot 527 in DD112 (i.e. the Road) and the remaining portion renamed 527ARP again (Trial Bundle B1, p. 148-152) (the “Deed Poll”). 30.There are disputes as to the circumstances and reasons why the plaintiff instructed a surveyor and executed the Deed Poll. 31.However, it is not disputed that on 22 November 2017, both the plaintiff and the defendant attended C.O. Chan & Co. Solicitors to sign an Agreement for Sale and Purchase (the “Agreement for S&P”) for the plaintiff to sell 50% of the share of the Road to the defendant for both to hold as tenants in common in equal shares for the purchase price of HK$55,000. The completion date was 30 November 2017 (Trial Bundle B1, p. 213-227). 32.On 1 December 2017, the plaintiff and defendant executed an Assignment for the Garden “in consideration of the sum of…HK$270,000 paid by the Purchaser to the Vendor (the receipt whereof is acknowledged) …” (Trial Bundle B1, p. 229-233). 33.On 4 December 2017, the plaintiff and defendant further executed an Assignment for the Road “in consideration of the sum of…HK$55,000 paid by the Purchaser to the Vendor (the receipt whereof is acknowledged) …” (Trial Bundle B1, p. 235-239). 34.It is not in dispute that the defendant has not paid the sum of HK$270,000 nor the sum of HK$55,000 for the two Assignments. 35.Instead, the plaintiff and the defendant have signed two letters which waived all liabilities of the solicitors arising out of the two Assignments (Trial Bundle B1, p. 242 and 244). 36.The plaintiff and the defendant have been in dispute since this incident. The acrimonious relationship would have likely led to the incident concerning 4763. As stated above, this court has already found that the defendant has obstructed the Path which is an access road to various areas including the Plaintiff’s House and the Disputed Lands and thus has granted the Interlocutory Injunction. The plaintiff’s case 37.The plaintiff claimed that around mid-October 2016, the defendant negotiated with him and agreed to buy half of the area of 527ARP to become the garden of the defendant’s house for HK$270,000 (i.e. the Garden). They also agreed to share the ownership of the Road (which provided access to the defendant’s house via the Garden and also to the plaintiff’s house on the adjacent lot further north, i.e. 517A2) by the defendant paying the plaintiff HK$55,000. 38.It was for such reasons that the plaintiff instructed the surveyor to plot out 527ARP in early 2017 thus identifying the Garden and the Road, and then executed the Poll Deed in July 2017. 39.The parties then attended the solicitors’ office to sign the Agreement for S&P on 22 November 2017. 40.However, around late November 2017, the defendant told the plaintiff that his assets were tied up in stocks and timed deposits and has little available cash, and that his assets would become available in September 2018. However, he would be able to pay the total consideration of HK325,000 plus all the legal costs and surveyor’s fee from October 2018 onwards by way of a monthly repayment sum of HK$10,000 over 34 instalments. 41.Further, the defendant also promised that if he did not pay accordingly, he would return the Garden and the share of the Road to the plaintiff. 42.It was on reliance of such oral promises that the plaintiff executed the two Assignments and agreed to signed the receipts and the letters of waivers. 43.However, the defendant has not paid the plaintiff nor returned the Garden and the share of the Road to the plaintiff as promised or at all. When the plaintiff confronted the defendant on 1 November 2018, the defendant shouted at him. 44.Further, at a certain period of time, the defendant has also constructed a metal pole as a bollard in the middle of the Road to hinder vehicle access to the plaintiff’s house. 45.The plaintiff therefore commenced 6076 to seek, amongst others, for restoration of the Garden and the Road to him. The defendant’s case 46.In essence, the defendant alleged that there was a common mistake. He claimed that there has always been a common intention that he should inherit 527A1 (and his house) together with the Garden (527A3). 47.According to the 6076 Amended Defence:
48.As for the circumstances of the Deed Poll and the Assignments, the defendant pleaded:
49.Despite 4763 having nothing to do with the dispute regarding the Garden and the Road (it was about the defendant’s obstruction of the Path), the defendant expanded his pleadings on the “common mistake” (paragraph 35 of the 4763 Defence and Counterclaim of the 1st Defendant, Trial Bundle A1, p84):
50.In short, in 4763 the defendant not only pleaded (as he did in 6076) that there was the “common mistake” at the making of the DFA 98, but further that, at some point of time between 1998 and late October 2000, the family all realised this mistake and attended the solicitors’ office in an apparent attempt to correct this mistake. But yet they made another “common mistake” in the correction which inadvertently maintained the old mistake (i.e. distributing the same piece of land to the plaintiff). 51.As such, the defendant’s case now is that the family was aware of the “common mistake” and has instructed the solicitors around 2000 to correct it. However, the whole family and the solicitors somehow failed to take the process of identifying the Garden and Road as belonging to the defendant and had simply, as it appeared, relabelled “527A” as “527ARP” in the Amended DFA, thus making the second “common mistake”. 52.Further, despite pleading in the 6076 Defence that the plaintiff did not require the defendant to pay for the 2 Assignments because he considered it the rectification of the “common mistake”, here, in the defence of 4763, the defendant seeks the Counterclaim, amongst others, for:
Legal Principes 53.The relevant legal principles on mutual (common) and unilateral mistake in an action for rectification are stated by Lord Hoffmann NPJ in Kowloon Development Finance Limited v Pendex Industries Limited (2013) 16 HKCFAR 336:
54.The defendant’s pleaded case is “common mistake”. There is no allegation (nor the requisite evidence) that there was any “bad faith” on part of the plaintiff when the family entered into the EDA, the DFA 98 or the Amended DFA. Considerations 6076 Defence 55.In short, the 6076 Defence is that the Deed Poll and Assignments were the rectification of the “common mistake” to restore the defendant’s rightful inheritance which, for some twist of logic, he was induced to sign by the plaintiff. 56.In other words, it is a “conspiracy”: the plaintiff took the initiative to voluntarily restore the Disputed Lands back to the defendant but cunningly set it up so that the defendant had to pay HK$270,000 and HK$55,000 as considerations without informing him of such, but then agreed to execute the two Assignments despite the defendant having NOT paid such considerations. 57.This line of defence clearly defies logic. 58.Firstly, the plaintiff was taking a risk that a) the solicitors would not inform the defendant of the considerations, and that b) the defendant would not himself see the figures printed on the legal documents. 59.Pausing here: the defendant claimed that he could not read English, but I note that the receipts of such considerations were in Chinese and the defendant had signed them (Trial Bundle B1, p. 241 and 243). 60.Secondly, why would the plaintiff “induce” the defendant to sign for the receipts stating that the considerations were paid when they were not? These documents were clearly detrimental to the plaintiff. 61.More importantly, what could possibly be the plaintiff’s purpose for such an elaborate “conspiracy”? The plaintiff, by inducing the defendant into such Assignments for considerations the defendant did not pay, went ahead with the Assignments. For what purpose? So that he could now initiate a court action to reverse the Assignments? 62.As such, the court does not accept this defence. 4763 Defence The alleged intention of the Amended DFA 63.The pleaded defence in 4763 was that the whole family was aware of the common mistake and had attempted to amend it in 2000 via the solicitors. 64.It would be unlikely that anyone in the family would, out of the blue, suddenly discovered the “common mistake” between 1998 and 2000. The defendant’s evidence is completely silent on the circumstances of how and by whom the “common mistake” was discovered, and who instructed the solicitors and what instructions were given. Indeed, it is of note that the defendant did not call any other members of the family to support his pleaded case. 65.Of course, if the intention for the Amended DFA was to correct the “common mistake” and that the solicitors were properly instructed, the amendments could not be simply in form of a “re-labelling” of “527A” to “527ARP”. The solicitors would first need to identify the exact boundaries of various plots as well as the land claimed by the defendant. They would likely require a surveyor’s report to do so. There was no explanation on why these were not done. 66.As such, I find that the plaintiff’s version of the events (as stated in paragraph 20 above) is the more likely scenario on balance, i.e. the solicitors approached him and the family because they realised the “mislabelling” of 527A in the DFA 98. Thus, the circumstances of the Amended DFA had nothing to do with the current dispute. The alleged discovery of the “common mistake” 67.Under cross-examination, the defendant claimed that he had partially dismantled the temporary structure (which the defendant called “Store Room” (“士多房”) and was situated inside the Garden near 517A2) to allow heavy construction vehicles access for construction of the Plaintiff’s House on 517A2. Later, he planned for reconstructing the Store Room (to be used as a rental property) and had asked a friend (who was an estate agent) to make the application to the Lands Department. His friend then told him that the land that the Store Room was situated did not belong to him. 68.The defendant confirmed in court that this was the first time he was aware that this did not belong to him and the time was around 2016 or 2017. Alleged subsequent events 69.Under cross-examination, the plaintiff’s counsel, Mr. Albert Yau (“Mr. Yau”), invited the defendant to tell the court what happened after this alleged discovery. The defendant gave evidence as follows. The alleged first offer 70.The defendant said that he approached the plaintiff and asked him why the Store Room did not belong to him, and the plaintiff said that he did not know but that 527ARP was mortgaged to a bank to raise funds to build the Plaintiff’s House (this last matter was not disputed). 71.The defendant claimed that the plaintiff told him:
72.However, I note that the defendant did not give any details as to whether the plaintiff was offering to give the entire lot under mortgage (which would have meant the entire 527ARP including the house on it), the Garden or just the plot of land that the Store Room was standing on. 73.I find the Alleged First Offer unlikely to have occurred. Firstly, this was entirely new evidence from the defendant. Secondly, I cannot see how the plaintiff would simply offer to “return the land” to the defendant just like that without identifying the land that he was offering. The alleged second offer 74.In any case, according to the defendant, he told the plaintiff that he had no money (not to the sum of HK$500,000), and the plaintiff then said:
75.As such, the defendant gave evidence that, again for the first time, the plaintiff actually offered to gift the land to him after the plaintiff had repaid the mortgage himself. 76.I find the Alleged Second Offer even more unlikely. 77.The plaintiff and the defendant were clearly negotiating. If the defendant was telling the truth, the plaintiff was first asking for HK$500,000 for the land, and when the defendant said he could not pay, he immediately offered to return the land effectively as a gift (after the plaintiff himself redeemed the mortgage). This would have been an immediate and drastic change of position by the plaintiff during the negotiation. 78.When asked whether the defendant could provide any reasons for the plaintiff’s drastic change of position, the defendant immediately changed the story and claimed that the plaintiff was asking him for a loan of HK$500,000 to redeem the land:
The alleged admissions by the plaintiff 79.More importantly, if the plaintiff was offering to “return the land”, this would have meant that the plaintiff had made an admission that the land should belong to the defendant. 80.When asked whether the plaintiff had actually orally admitted that the land belonged to the defendant and he would “return the land”, the defendant confirmed that he had, and not just once:
81.Of course, this was also the first time that the defendant gave such evidence. 82.I also find this scenario unlikely: if the plaintiff had on more than one occasion made such an important admission, it would be the most important and strongest evidence against his claim in 6076. Logically, it would be amongst the first things that the defendant would mention to his solicitors. He would have been pleaded such in various defence and given such evidence in any of his affirmations and witness statements. 83.Instead of pleading the admissions in the defence, the defendant only tried to establish the “common mistake” out of a rather weak and indirect argument of “unfairness”:
The Assignments 84.The defendant went on and said that after a while, he noticed that the plaintiff has purchased a Mercedes Benz motor car and realised that the plaintiff had money. He asked the plaintiff: “When will you return the land to me?” “Is that matter sorted yet? (“咁你幾時俾返我?” “嗰度搞掂未?”). 85.Then the defendant said that, very shortly afterwards, the plaintiff invited the defendant to go together to a solicitor’s office in Yuen Long and assigned the lands to him. 86.The defendant then talked about an argument when leaving the solicitors’ office because he thought that the Road should belong to him 100% but the plaintiff had “tricked” him by adding his own name as co-owner to it. This alleged dispute was, again, new evidence. 87.It is of note that the defendant failed to provide any details of the circumstances of how the Assignments came about, i.e. what transpired between how he allegedly asked for the return of the lands (after noticing the plaintiff purchasing a Mercedes Benz) and the signing of the Assignments. 88.There is a good reason why the defendant is completely silent on this: I cannot see how the defendant can provide any logical explanations for this version of events:
89.Furthermore, this version of event given in court was inconsistent the defendant’s own pleaded case regarding this “verbal representation” (paragraphs 8 and 9 of the Amended Defence of 6076, Trial Bundle A1 p.22):
90.Firstly, during cross-examination, the defendant denied that there was the pleaded “verbal representation”: he denied being told by the plaintiff about the instruction of the surveyor. He also claimed that after he heard about that, he instructed his own surveyor and had paid HK$20,000. 91.However, the defendant has not disclosed his claimed surveyor’s report. The only report in the Trial Bundle was from GLand Surveying, Planning & GIS Co. Ltd disclosed by the plaintiff. 92.Further, the defendant’s pleaded case was that, out of the blue, the plaintiff had simply represented to him that he would divide up the Old 527ARP and then asked the defendant to attend the solicitors’ office to sign the Assignments etc.. 93.The defendant denied the plaintiff’s case that he had offered to buy the Disputed Lands from the plaintiff but did not provide any explanation as to why the plaintiff took the trouble to do all these some 17 years after the Amended DFA. The defendant evidence is clearly not credible. 94.As such, the court also finds the 4763 Defence wholly unconvincing and illogical. 95.On balance, I find that the plaintiff’s version of events of what happened from 2016 onwards (as stated in paragraphs 37-45 above) more convincing and logical. It is also consistent with the documentary evidence like the Amended DFA, the Survey Report, the Deed Poll, the Assignments and the Letters of Waivers. The alleged “common mistake” 96.Having dealt with what happened from the DFA 98 to after the execution of the Assignment, I will now turn to the alleged “common mistake” when the family made the EDA. The defendant did raise some objective evidence to support this allegation, in particular:
97.The defendant argued that this showed that the family must have intended that the defendant’s land be more than just the square plot for his house because there must have been buildings that would need dismantling for the access road. Further, the family must have intended that should be a common boundary between 527A (i.e. the old 527ARP) and 527A1 for a wall and / or a path. 98.On the other hand, I note that the plaintiff’s case was that the Lot Plan was available to the parties during the family discussion concerning the EDA. 99.This was supported by the evidence from Madam Choi Fung Ying, one of the daughters of the family who had attended the family discussions. 100.Crucially, the defendant did not deny this important point until during his own cross-examination. I also note that the Lot Plan has the same date as the EDA. Furthermore, it is difficult to see how, without the Lot Plan, the 3 brothers would know the exact names and locations when choosing their lots. 101.I would therefore accept that, on balance, the Lot Plan was indeed available during the family discussion concerning the EDA. 102.With the Lot Plan, it should be clear to everyone the sizes and locations of the lots that each of the brother has chosen. And the lot numbers were clearly stated under clauses 3, 4 and 5 of the EDA. There was no ambiguity as to the identity of such lots. Such clauses again reproduced and affirmed in the DFA 98 and the Amended DFA (which, as I found above, was only for the correction for the misdescription of “527A”). 103.In the closing submission, Ms. Virginia Leung, counsel for the defendant, attempted to raise a new argument that the “true intention” of the family when putting in the lot numbers (e.g. 527A) in clauses 3, 4 and 5 was “just for identifying the location of the house (not the land area) allocated”. I would reject this submission: this evidence was never raised by any witness at trial and, of course, Ms. Leung never put this to the plaintiff and Madam Choi Fung Ying under cross-examination. 104.Furthermore, I find that the relevant clauses on the EDA (and reproduced in the DFA 98 and Amended DFA) were vague as to the exact positions of any boundaries / paths / buildings. It is not in dispute that there have been various extensions made over the years in the Defendant’s House, and it would be unclear where these were and their relationships to the boundaries of 517A2 and the old 527ARP without any survey report at the time. 105.Importantly, the defendant has not presented any evidence to show the court how these vague clauses should be interpreted to show that the true common intention of the family was that the defendant should have inherited exactly the areas now defined as the Garden and the Road (half share only), with those exact boundaries as described in the Deed Poll. As mentioned above, the defendant did not call any family members to provide any evidence. 106.I also find it likely that the defendant would have chosen 527A1 in any case because he admitted that he had been living there for many years and that, where compared with the house on 527ARP (inherited by the plaintiff), the house on 527A1 was bigger and in better repair. 107.As stated above, the defendant has raised the argument of “unfairness” in that “there was no reason” why the family intended for the defendant to only inherit such a small area of land. 108.However, the defendant also gave evidence that, at the time of the EDA, it was the plaintiff who protested that he inherited the oldest and smallest house. But Leung (the eldest brother) said that the plaintiff could build his own house on 517A2. 109.This would appear hardly a “consolation prize” given that the plaintiff still had to pay for the construction himself (which he did eventually, i.e. the Plaintiff’s House) whilst his two elder brothers inherited existing bigger and newer houses. In any case, the defendant clearly did not offer to exchange his lot out of love or care for his younger brother. 110.Further, the defendant also agreed during cross-examination that farm land (which the extra areas of 527ARP were comprised of) was worth much less than land that was licensed to be built upon. 111.Thus, on face of it, it would seem that the defendant had inherited a smaller piece of land but with a bigger and newer house, whilst the plaintiff had inherited a bigger but mostly less valuable piece of land with a smaller and older house. 112.Therefore, it cannot be said that “there was no reason” why the family had intended and agreed as such. On balance, when seen objectively, this agreement did not seem to be particularly “unfair” to the defendant, at least at the time the family agreement was made. 113.Summing up the above considerations, I find such objective evidence inconclusive in establishing that there was a “common mistake” on balance of probability. In other words, when adopting an objective stance, I find that a reasonable observer would not have found, on balance of probability, that there was a “common mistake” in the agreement from the family’s intention. The defendant’s conduct 114.More importantly, if, as alleged by the defendant, he discovered the “common mistake” around 2016 or 2017, one would reasonably expect that he would have confronted the plaintiff and the rest of the family to seek their agreements for rectification. If there was no agreement, one would expect him to seek legal assistance and advice for possible action for rectification. 115.Instead, as found by the court (see above), the defendant has offered to purchase the Disputed Lands from the plaintiff and went on to execute the Assignments. 116.Such conduct, when viewed objectively by a reasonable observer, would not support that there was a “common mistake”. Affirmation, waiver and estoppel 117.I note that such arguments were not specifically canvassed during the trial. 118.Nevertheless, even if I am wrong about my findings and there was indeed a “common mistake”, I am of the view that the defendant’s conduct subsequent to the discovery of the “common mistake” may also support an argument that the he had affirmed such and waived any right to rectify the same. 119.I may think that there can an arguable case for estoppel. The defendant may be estopped from raising the equitable remedy of rectification: having discovered the alleged “common mistake”, the defendant still offered to purchase the lands from the plaintiff with consideration, and the plaintiff had clearly relied upon such to his detriment: incurring the effort and expenses for the Survey Report and Poll Deed, and executing the Assignments without receiving any agreed consideration. Adverse Possession 120.The defendant has appeared to raise an alternative claim on adverse possession (paragraph 55 of the Defence and Counterclaim of 4763, Trial Bundle A1, p.92). 121.However, it is not in dispute that before the death of the father, the family had lived together in various locations within the houses on the premises. All the relevant land belonged to the father. Facilities like the kitchen were shared and the family members were free to enter and exit the lands. 122.The defendant’s own case was that he was only occupying the ground floor of the house on 527A1 since the 70s’. He has produced no evidence exclusive possession of the Garden and (half share?) of the Path continuously for 12 years e.g. building of boundary walls, fences etc. to the exclusion of the paper owner. It is also not in dispute that the Store Room in the Garden was partially demolished in around 2010 to allow access for construction of the Plaintiff’s House. 123.Further, the fact that the defendant had executed the Assignments would be evidence against him having the requisite animus possidendi. 124.The defendant’s adverse possession claim clearly cannot be established. The Bollard 125.The plaintiff alleged that the defendant had, for around 1 year, placed a metal rod as a bollard in the middle of the Road (“the Bollard”) thus denying the plaintiff’s vehicle access via the Road to the Plaintiff’s House. 126.In court, the defendant first said he never put up the Bollard. Then he said he was only “testing” it in-situ but could not remember how long he placed it in-situ, but it “might only be around 3 odd days”. 127.When asked why he would “test” the Bollard for a few days, he said he was wating for the cement (that presumably formed the hole for the insertion of the Bollard) to set. 128.This clearly did not make sense: it would be common sense that one would not insert a metal rod in wet cement to wait for the cement to set over a few days. 129.When so challenged, the defendant again changed his story and claimed that he was “testing” whether the cement was dry. 130.This explanation did not make sense either: if one simply wanted to test whether the cement was set, one would only need to inset the Bollard and could remove it immediately. There was no need to leave the Bollard inside the hole for “around 3 odd days”. 131.As such, the defendant was clearly not an honest witness. He was making things up as he thought might suit his case. 132.The court would, on balance, accept the plaintiff’s case that the defendant has put the Bollard on the Road to prevent access by the plaintiff’s vehicle for around 1 year. 4763 133.4763 concerns the defendant parking a vehicle on or near the Path obstructing or hindering vehicle access to the Road, thus causing nuisance to both the plaintiff and his tenant renting the house on 527ARP. 134.I have already granted an Interlocutory Injunction on 3 November 2025 and the reasons have been fully canvassed in the relevant decision. As above, I have also dismissed the defendant’s Summons to discharge the Interlocutory Injunction with reasons given in Court before the trial. No further evidence nor submissions regarding 4763 were advanced in the main trial so I cannot see any reason why I should not find for the plaintiff. 2168 135.As above, the factual matrix of 4763 and 2168 is similar. Given that I find for the plaintiff in 4763, I would similarly find for the plaintiff in 2168. Damages 136.As stated in paragraphs 9-11 above, the plaintiff is also claiming various loss and damages. 137.As for the loss of rental income claim, the plaintiff at trial gave evidence that he was willing to accept an adjustment of 20% of the claim. 138.I am of the view that this is reasonable given the trouble that the defendant has clearly caused to the plaintiff’s tenants all through the years. I would therefore allow this claim:
139.As for the other heads of damages, Mr. Yau, in the Plaintiff’s Closing Submission, stated that the plaintiff only seeks assessment of such in the future “should the plaintiff deem it necessary to proceed” (paragraph 76 of the Written Closing Submissions of the Plaintiff). Order 140.In conclusion, the court enters judgment for the plaintiff in 6076, 4763 and 2168. 141.Regarding 6076, I will grant the following:
142.Regarding 4763 (and 2168), I will grant the following:
143.As for damages, I would award HK$41,400 under the claim for loss of rental income payable by the defendant to the plaintiff. There be liberty to apply for damages assessment for the other heads of claim. 144.Interest on the damages be payable at half judgment rate from November 2018 to the date of this Judgment, and thereafter at judgement rate until the date of payment. 145.There be costs order nisi that the cost of all 3 actions (6076, 4763 and 2168) be to the plaintiff to be taxed if not agreed, including certificate for Counsel.
DCCJ 6076/2019 Mr Albert Yau, instructed by Messrs ZM LAWYERS, for the plaintiff Ms Virginia Y T Leung, instructed by Messrs Pauline Wong & Co., for the defendant DCCJ 4763/2023 Mr Albert Yau, instructed by Messrs ZM LAWYERS, for the plaintiff Ms Virginia Y T Leung, instructed by Messrs Pauline Wong & Co., for the 1st defendant DCCJ 2168/2024 Mr Albert Yau, instructed by Messrs ZM LAWYERS, for the plaintiff Ms Virginia Y T Leung, instructed by Messrs Pauline Wong & Co., for the 1st defendant |
Cases cited in this judgment