Lee Wai-choi v. Lam Yee-lan and Others

HCA002827/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Mayo in Chambers.

Date of Judgment: 17th February, 1973.

Mr. F.T. Lam, Solicitor, of Bernard Wong & Co., Solicitors, for the plaintiff.

Miss T. Trieu, instructed by Messrs. A. Lau, Solicitors, for the defendants.

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DECISION

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1. This is an application by the plaintiff for summary judgment under Order 14.

2. The plaintiff is seeking an order for vacant possession of a flat on the ground floor at No. 12 Sun Wai Street, Kowloon. This claim is based on a right conferred upon him in an underlease entered into on or about the 29th of June 1972 made between the Third Party and himself. The plaintiff attempted on or about 15th of July 1972 to enter into possession of the flat in accordance with the terms of the said underlease and was unable to do so as the premises were occupied by the defendants who are relatives of a Mr. LAM Chung-kee who was a previous tenant or is a tenant of the flat by virtue of an underlease entered into towards the end of 1969 which was made between the Third Party and Mr. LAM Chung-kee. There appears to be no dispute over these facts.

3. The plaintiff's solicitor claims that Mr. LAM Chung-kee's interest under his underlease was terminated by his resignation from the Third Party in accordance with its rules. The plaintiff's solicitor further contends that because the 1st and 2nd defendants do not come within the scope of relatives who are entitled to be members of Mr. LAM Chung-kee's household in accordance with the rules of the Third Party Corporative Society they therefore should be treated as trespassers.

4. In reply to this Miss Trieu submitted on the defendants' behalf that according to the affidavit evidence of Madam LAM Yee-lan, the defendants paid the sum of HK$40,000 to Mr. LAM Chung-kee for their interest in the said flat and that this payment had the effect of constituting a resulting trust in favour of the defendants. Miss Trieu further submitted that such a resulting trust could not be determined by Mr. LAM Chung-kee's unilaterally tendering his resignation to the Third Party and that even if he did resign from the Third Party such resignation would not automatically determine any interest he or the defendants may be entitled to under the underlease which was entered into between the Third Party and him at the end of 1969.

5. I have attempted to outline the main submissions which were advanced to me by both parties. I fear that the position is not quite as simple as this. It occurs to me that the most important matter to be determined is the nature of the interest which was acquired by the plaintiff when the underlease was entered into between the Third Party and himself on or about the 29th of June 1972. When the plaintiff acquired this interest did he obtain a right to vacant possession of the flat? I do not think that the Third Party had a title to confer upon the plaintiff a right to vacant possession unless they had already obtained vacant possession of the premises themselves. It seems to me that any prudent potential purchaser of any interest in land would be well advised to make inquiries as to whether vacant possession of the property in question would be rendered up on the completion of the transaction. Any physical inspection of the flat in question prior to the completion of the underlease would have shown that the defendants were in possession of the flat. Perhaps the most prudent course of action for the plaintiff to have adopted would have been to require the Third Party to obtain vacant possession of the flat prior to his completing the said underlease. It would appear from the documents available to me that no such attempt was ever made by the Third Party.

6. The plaintiff's solicitor contended that the person entitled to immediate possession of land is the person who has a right of action for trespass against an occupier vested in him. He further contended that any effort, however slight, to dislodge the trespassers would be sufficient to enable him to start an action in trespass. While this may well be a correct statement of the law of trespass I still consider that it is necessary to establish whether or not the defendants are trespassers in this case. Although the Perpetual Co-operative Building Society Ltd. has been joined as Third Party to these proceedings I do not think that all the procedural difficulties which are likely to arise in this action can necessarily be resolved. It may well be the case that the defendants may be able to successfully defend their rights to retain possession of the said flat. It is quite possible that even if there have been breaches of both the rules of the Third Party and the terms of the first underlease that waiver of these rules and terms may be established. It would however be inappropriate for me to attempt any detailed analysis of the questions which will inevitably arise in this action. I am only considering whether the plaintiff is entitled to summary judgment under Order 14. At the very least the defendants have shown that there are triable issues in this case. I therefore dismiss this application. Costs shall be to the defendants in any event. There shall be a certificate for counsel.

7. Dated this 17th day of February, 1973.

Representation:

Mr. F.T. Lam, Solicitor, of Bernard Wong & Co., Solicitors, for the plaintiff.

Miss T. Trieu, instructed by Messrs. A. Lau, Solicitors, for the defendants.