Lay She Thiam and Another v. Lai Si Kan

DCCJ 4253/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4253 OF 2006

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Coram: His Hon Judge Leung in Chambers (open to public)

Date of hearing: 14 May 2008

Date of decision: 14 May 2008

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DECISION

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1.The parties are of Indonesian origin.  Thiam and Siauw (the Plaintiffs) were husband and wife.  Kan (the Defendant) is the younger brother of Thiam.  Thiam and Siauw purchased the flat in question at North Point in 1980 in their names as joint tenants.  But the flat has since been occupied by Kan and his family.  By this action, Thiam and Siauw seek, among others, possession of the flat.  Kan resisted.  Thiam passed away in March 2007 after the commencement of this action.  Pleadings have closed.  Siauw now applies for summary judgment against Kan.  There is no dispute about her capacity to continue the action as the surviving joint tenant of the flat.

2.The applicable principles need no introduction.  Kan has to show his defence raises real issues in dispute which ought to be tried or there are some other reasons for which the case ought to proceed to trial: O.14, rr.3-4 of the Rules of the District Court.

PLAINTIFF’S CASE

3.According to Thiam and Siauw, they purchased the flat as investment.  At the request of Thiam’s mother, they granted a licence to Kan and his family to reside in the flat.  They agreed out of filial piety, love and affection.  The licence was revocable at will.

4.In about 2003, Thiam and Siauw, through Thiam’s two sisters, gave notice to Kan of their intention to take back the flat.  At Kan’s request, they agreed to give him 3 more years and a sum of HK$40,000 to assist Kan in his relocation.  This amount was later said to be a rough conversion of US$4,175 into Hong Kong currency.

5.In November 2005, Thiam, his son and Siauw’s brother-in-law had a meeting with Kan at the flat.  While Kan refused to vacate from the flat, he made no claim of any beneficial interest or rights over the flat.

6.By letter to Kan on 23 February 2006, Thian and Siauw reminded Kan of the 1 June 2006 deadline for vacating.  This, according to them, amounted to revocation of the licence with effect from that date.

7.By their solicitors’ letter in June 2006, Thiam and Siauw extended the deadline to 3 July 2006.  However, Kan and his family still refused and failed to vacate.  Thiam and Siauw now claims possession, mesne profit or alternatively, decline in the market value of the flat.

8.Apart from her own affirmation, Siauw relies on the signed statements of Thiam (made prior to his death) and his two sisters as well as the affirmation of her brother-in-law in support.

DEFENDANT’S CASE

9.Kan’s pleaded case is that in April 1979, Thiam, himself and their mother as well as Siauw agreed that Thiam and Siauw would purchase the flat as Kan’s residence.  By his affirmation, Kan added that Thiam did that in effective settlement of their mother’s loan of gold to assist Thiam to build his business in early years.

10.According to the pleading, Thiam and Siauw would pay about HK$230,000 while Kan would pay the balance of the purchase price.  Kan paid HK$45,285.32 towards the purchase price.  Kan was given an irrevocable licence to occupy the flat.  By his affirmation, Kan says that not only was the flat intended to assist his family with a long-term accommodation, but his family was also supposed to live there ultimately to the exclusion of Thiam or his family.  The flat was supposed to be registered in his name.  For various reasons, Kan had no choice but to forsake the intention to have property registered in his name then.  However, Siauw agreed that the title to the flat should be changed to Kan’s later on when necessary.

11.In August 1999, there was a meeting at the mother’s home where Kan suggested that Thiam and Siauw transferred the title to the flat to him or sold the flat to him at a low price.  They refused.  This was said to have given rise to recurrent argument between the parties.

12.Apart from a gift of US$4,175 from Thiam in 2003, Kan has never received the alleged HK$40,000 from Thiam and Siauw through his sisters in connection with his relocation.  He also denies having received any letter in conjunction with that from Thiam.  While he does not deny the meeting with Thiam, his son and Siauw’s brother-in-law at the flat in November 2005, he denies there was any discussion of taking back the flat.  The first time he heard about the plan of Thiam and Siauw to take back the flat was over the long distance telephone call from them in May 2006.

13.Over the past 27 years of occupation, Kan has spent not less than HK$31,760 towards the maintenance of the flat and the other outgoings.  Thiam and Siauw are therefore estopped from denying the irrevocable licence.  He produced some documents in support of these expenses.

14.Alternatively, by actually contributing towards the purchase of the flat, Kan claims to be entitled to 16.45% of the beneficial interest in the flat by way of resulting trust.

15.Kan has not pleaded any counterclaim.

IS THIS AN O.14 CASE?

16.Here we have 2 divergent versions of what was behind the acquisition of the flat by Thiam and Siauw and the occupation of the flat by Kan and his family at all times since its acquisition.  Since the affirmation of Siauw in reply to Kan’s affirmation, parties have highlighted the apparently improbable parts of each other’s case and evidence.  Both sides criticise each other for making bare assertions.

17.Even as I do accept that as defendant, Kan has a duty to condescend upon particulars and to show that his defence contains relevant arguable issues; I am not here to go so far as to conduct a mini trial on the basis of the affidavit evidence in hands whether the allegations and evidence of Kan will be believed in at trial.  I am here to determine whether his evidence is capable of being believed in at trial: see Hong Kong Civil Procedure 2008 at 14/4/8-14/4/9.

18.It has not been suggested that even assuming that Kan’s case is accepted as a matter of fact; it is bound to fail as a matter of law.  Mr Cheung described what Kan is claiming is a life tenancy.  He submitted that this is defeated by section 6 of the Conveyancing and Property Ordinance, Cap. 219, which requires the creation of interest in land to be in writing.  Yet to begin with, the licence to Kan to occupy the flat is a common ground.  The only issue is whether this was agreed or intended to be irrevocable.

19.As far as Kan’s right in the flat is said to exceed that of a right to occupy, there are at least the issues of the alleged contribution by Kan towards the purchase of the flat and the alleged estoppel by virtue of his contribution towards the maintenance of the flat.  Indeed on the one hand, not much was said about how such contribution towards the purchase by Kan could be and was made then.  On the other hand, there is no documentary evidence to really show Thiam and Siauw contributed more than HK$230,000.  There does not seem to be substantial dispute about Kan’s contribution towards the maintenance of flat over the past decades.

20.In short, neither the alleged contribution towards the purchase nor that that towards the maintenance of the flat by Kan is already shown at this stage to be inherently improbable.  No conclusion could already be drawn at this stage that these facts, if true, could not have founded the claim for some proprietary right in the absence of writing either.

21.Apart from the affirmation of her brother-in-law, which concerns the alleged meeting at the flat in November 2005, Siauw is not relying on proper affirmations from Thiam’s sisters or her husband as corroborating evidence.  The contemporaneous documentary evidence relied on by her were not those that clearly contradict the version of Kan.  I could not conclude that Kan’s evidence is inherently implausible and incapable of being believed in at trial.  He may well be believed in.

22.Not less than 27 years have elapsed since the parties’ arrangement in respect of the flat in 1980.  Considering the circumstances of the present case revealed at this stage, including those analysed above, I conclude that this is not a suitable case for disposal in the summary manner under either limb of O.14.

[Parties submits on whether the summons should be dismissed and costs.]

ORDER

23.Having considered parties’ submissions and Hong Kong Civil Procedure 2008 at 14/7/3-14/7/4, I take the view that this application should be dismissed with costs to Kan in any event.  Costs shall be taxed, if not agreed.  Kan’s own costs shall be subject to legal aid taxation.

Representation:

Mr Lawrence Cheung instructed by Messrs Howell & Co for the Plaintiff

Mr Jesse Kwok of Messrs Jesse H Y Kwok & Co for the Defendant upon the instruction of the Director of Legal Aid