Wan Po Jun Mary Pauline v. Liu Chan and Lam and Another

HCA 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10 OF 2010

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Before: Deputy High Court Judge L. Chan in Chambers

Date of Hearing: 19 October 2010

Date of Decision: 25 October 2010

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D E C I S I O N

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1.This is an appeal by the plaintiff against an order of Master Lung which struck out the statement of claim and dismissed the action as against both defendants.

Background

2.The plaintiff used to have an intimate relationship with one Au-Yeung, deceased.  The deceased passed away on 11 April 2008 because of a serious illness.  The deceased left a will dated 18 October 2007.  He made his daughter, the 2nd defendant, the executrix of the will.  He left everything in his estate to his daughter and his son.  The plaintiff claims to be the cohabitee of the deceased and the step-mother of his children.  However, she was not made a beneficiary in the will.

3.She alleged that the deceased made the will when he was mentally unbalanced and without a clear mind and/or under the undue influence of the 2nd defendant and his signature on the will was different from his usual one.  She filed a caveat with the Probate Registry disputing the validity of the will.  The 2nd defendant then started HCAP No. 19 of 2008 against her.  She filed a defence and counterclaim on 28 November 2008.  Master Levy struck out her defence and counterclaim on 17 June 2009, ordered her caveat to cease to have effect and that the 2nd defendant herein was entitled to apply for a grant of probate of the deceased’s estate.  She then appealed against Master Levy’s decision.  Her appeal was dismissed by Yam J on 19 August 2009.  Her further appeal to the Court of Appeal was dismissed on 6 October 2010.  She said in this appeal that she would be seeking leave to appeal so as to take that matter to the Court of Final appeal.  A grant of probate of the deceased’s estate was issued to the 2nd defendant herein on 10 November 2009.

4.The plaintiff is living in a flat in Harbourfront Landmark, 11 Wan Hoi Street, Hong Kong.  She has been living there for some years.  The flat is registered in the name of the deceased.

5.After the deceased had passed away on 11 April 2008, the 2nd defendant, in the capacity of the executrix and trustee of the deceased’s estate and acting through the 1st defendant herein, issued two notices to quit to the plaintiff on 30 April 2008 and 10 December 2009 respectively requiring her to quit and deliver up the flat to the 2nd defendant.  The plaintiff then issued this action against the 1st and 2nd defendants. 

The plaintiff’s claim

6.The plaintiff pleaded in her statement of claim that the notices to quit were illegal, premature and abusive.  Her grounds were that the 2nd defendant had not obtained the grant of probate, the notices to quit were issued under the ill advice of the 1st defendant, she had a right of equity to stay in the flat and was protected under section 3(1)(ix) of the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 (“the Ordinance”). She sought an injunction to enjoin the 1st and 2nd defendants from issuing further notices to quit to her.

The striking out

7.Each of the 1st and 2nd defendants issued a summons on 10 February 2010 to strike out the statement of claim under O.18 r.19 of the Rules of the High Court and the inherent jurisdiction of the court on the grounds that the statement of claim discloses no reasonable cause of action, is frivolous and vexatious and an abuse of the process of the court.

8.The plaintiff filed her third affirmation to oppose the applications to strike out.  She said in the third affirmation that she had a right to live and stay in the flat and was protected under section 3(1)(ix) of the Ordinance.  She also said that the deceased had not evicted her from the flat.  She also denied that she was only living in the flat under a licence granted by the deceased.  She filed a fourth affirmation repeating these points.

9.Master Lung struck out the statement of claim and dismissed the action on 9 July 2010. 

The appeal

10.The plaintiff lodged a notice of appeal on 16 July 2010 and filed her fifth affirmation setting out her grounds of appeal. These grounds are a repetition of what she has said in her third and fourth affirmations.  She in addition alleged that Yam J had adjudicated that she had a right of equity to live and stay in the flat and was protected by section 3(1)(ix) of the Ordinance.  This allegation is incorrect. Yam J in a decision dated 11 March 2010 only acknowledged that these were the two claims she was making in another action HCA 1478/2009.  The learned Judge did not make any adjudication as she alleged.  I now deal with this appeal by way of rehearing. 

Analysis

11.The 2nd defendant, being the executrix of the deceased’s estate, had the power to issue to the plaintiff the notices to quit with a view to repossess the flat which is part of the estate.  She had the power even before the grant of probate to her.

12.The plaintiff is claiming that she has a right of equity to live and stay in the flat.  She is making this claim in HCA 1478 of 2009.  So far, she has not stated in this action any basis of such alleged equitable right which can affect the 2nd defendant’s power to issue the notices to quit to her.  I do not think she can rely on the assertion of an equitable right to stop the 2nd defendant from issuing to her further notice(s) to quit.

13.Regarding her claim under section 3(1)(ix) of the Ordinance, if she should be successful in that claim, the court may order under section 4 of the Ordinance the payment of a lump sum and/or periodic payments out of the deceased’s estate to her.  The court may also order the transfer to her of property comprised in the estate or the settlement of such property for her benefit.  However, even if she may in future succeed in HCA 1478 of 2009 in securing a right to live and stay in the flat under an order made pursuant to section 4 of the Ordinance, that does not mean that she can in the mean time seek an injunction to stop the 2nd defendant from issuing further notices to quit to her requiring her to deliver up the flat.

Legal Principles for Striking Out

14.The 1^st defendant has reminded me the legal principles governing striking out applications (Hong Kong Civil Procedure 2010, paragraphs 18/19/4, 18/19/8 and 18/19/10).  It is only in plain and obvious cases that the court should exercise the power to strike out.  Disputed facts are taken in favour of the respondent to the application. Difficult points of law should not be decided in such applications and only claims that are obviously unsustainable and pleadings unarguably bad that they should be struck out.

Decision

15.Since the 2nd defendant has the power to issue notices to quit to the plaintiff and the plaintiff has not demonstrated in this action any right to stop the 2nd defendant from doing so, I do not think the Statement of Claim has disclosed any reasonable cause of action as against the 2^nd defendant.

16.Since the 1st defendant is merely a firm of solicitors acting for the 2nd defendant and the 2nd defendant has the right to issue notices to quit to the plaintiff, I do not think the plaintiff can stop the 1st defendant from acting for the 2nd defendant in issuing notices to quit on behalf of the 2nd defendant to the plaintiff.  The plaintiff’s statement of claim again discloses no reasonable cause of action as against the 1st defendant.

17.The plaintiff has also alleged that she is a creditor of the deceased’s estate to the tune of more than HK$3 million.  That however is also not a ground that can stop the 2nd defendant from issuing her with notices to quite.

18.I therefore uphold the decision of Master Lung and dismiss the plaintiff’s appeal.

19.I also make a costs order nisi that the plaintiff do pay the 1st defendant costs of the appeal assessed summarily at HK$23,423.  I also make a costs order nisi that the plaintiff do pay the 2nd defendant costs of the appeal assessed summarily at HK$1,000 as the 2nd defendant has also filed a skeleton argument.

The Plaintiff, in person, present

Mr David Choi, of Messrs Liu, Chan & Lam, for the 1st Defendant

The 2nd Defendant, in person, present