Lam Yuet Yau and Others v. 鄧慧妹

DCCJ 323 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 323 OF 2010

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BETWEEN

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Coram: Deputy District Judge Harold Leong in Chambers

Date(s) of hearing: 15^th October 2010

Date of handing down Judgment: 26^th October 2010

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JUDGMENT

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1.This is a hearing for two summons:-

(1)   an application dated 11 June 2010 for summary judgment for a claim for vacant possession and rent in arrears and mesne profits in respect of a property known as Section A of Subsection 3 of Section C of Lot No. 1212 in Demarcation District No. 115, Yuen Long, New Territories (“the Property”); and

(2)   an application dated 16 August 2010 by the Defendant to seek leave to amend her Defence and file and serve a Counterclaim.

2.All the Plaintiffs are co-owners of the Property.

3.The Plaintiffs' case is as follows :-

(1)   The Property has originally been leased by their father (the Plaintiffs being brothers) to the father of the Defendant’s husband under an oral agreement. 

(2)   In 2004, it was decided that there should be a written tenancy agreement and this was allegedly signed by the Defendant’s husband on 24 March 2004 for a lease of 2 years.

(3)   The tenancy agreement was renewed on 28 April 2006, again alleged signed by the Defendant’s husband. The lease period was from 15 March 2006 to 14 March 2008.

(4)   The rent for the Property has remained unpaid after 14 March 2007 so the Plaintiffs are claiming for vacant possession and outstanding rents.

4.The Defendant’s case is as follows:-

(1)   The Defendant moved into the Property in 1979 and has been living in the Property since. She married her husband on 26 May 1980.

(2)   Her husband and various members of his family had been living in the Property more than 10 years prior to her marriage.

(3)   The Property was surrounded by a wire fence in order to keep out strangers.

(4)   Her husband was taken ill in 2002 and passed away on 11 July 2006.

(5)   She is not aware of any tenancy agreement until the current action. She disputes the validity of the tenancy agreements and believes that her husband would have been too sick at the time to sign any tenancy agreement, and further that, in view of his financial situation at the time, he could not have signed any tenancy agreement without informing her.

(6)   She denies the validity of the tenancy agreements and makes a counter-claim for Adverse Possession of the Property.

5.The law regarding Adverse Possession is summarized as follows :-

Where :

a) the owner of land has been out of possession; and

b) a stranger has been in possession,

c) with animus possidendi, and

d) for a period sufficient to bar the owner's right to re-enter or to recover possession by action,

the owner's title is extinguished and the stranger acquires a title which is good against all the world, including the former owner.

[§230.0831, Vol. 16, Halsbury's Law of Hong Kong, 2007 Reissue]

6.Mr. George Chu, Counsel for the Plaintiffs, took the Court through the two Affirmations of the 1^st Plaintiff (dated 11 June 2010 and 18 August 2010 respectively) showing various evidence, including documentary evidence, to support the validity of the tenancy agreements.

7.Further, Mr. Chu submitted that the validity of the tenancy agreement was not essential to the Plaintiffs' case: their case was that even if one took the Defendant’s case to the highest (in that all her evidence so far produced was accepted by the Court), she has still failed to show the requisite animus possidendi.

8.It would not be necessary, for the purpose of this Judgment, for me to go into the details of all these submissions by Mr. Chu.

9.In summary, Mr. Chu took the Court in details through the Affirmation of the Defendant dated 27 July 2010, pointing out various “lacunars” in the evidence to illustrate, in particular, that her state of mind was that she never had the intention to dispossess the Plaintiffs, and that the use of a fence to surround the Property was not enough to show such intention.

10.Mr. Chu also took the Court through various developments of the law in this area in support of his submission.

11.I think here lies the problem with the Plaintiffs' application.

12.Summary Judgment is a powerful Judiciary weapon which concludes the proceedings at an early stage in the Plaintiff's favour, effectively depriving the Defendant any chance of further investigating and adducing evidence before the Court.

13.It is therefore necessary and logical that the Court should not be asked to conduct “a mini-trial of affidavits” to assess the strength of evidence of each party because the parties may not have, or may not be able to, adduce all the relevant evidence at this early stage of proceedings.

14.The test for a Summary Judgment is therefore not to assess the Defendant's evidence so far produced, take that to the highest, and then decide whether the case could reasonably be defensible.

15.The proper test is whether there are any “triable issues”, whetherthe Defendant has any “real or bona fide defence”, or whether that the defence is “frivolous and practically moonshine”. It is clear that ”Order 14 is for clear cases; that is cases in which there is no serious material factual dispute”.  [HKCP 2010, §14/4/9].

16.In the current case, I am satisfied that the Defendant has a “real and bona fide defence” in form of an adverse possession claim. Quite how the Defendant is going to support her defence, and how strong her evidence is so far produced, are not the concerns of the Court at the summary stage save that she has raised some evidence to show physical possession of the Property and animus possidendi, and that such evidence cannot be regarded as “frivolous and practically moonshine”.

17.I will therefore dismiss the Plaintiffs’ application for Summary Judgment with leave for the Defendant to defend. Costs of this application to be in the cause with Certificates to Counsel.

18.I will accordingly also allow the Defendant’s application for leave to amend her Defence and file and serve the Counterclaim with the costs of and occasioned by the amendments be to the Plaintiff in any event and the costs of this application be provided for.

19.The Defendant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr. George Chu instructed by Messrs.  Leung Kin and Co. for the 1^st to 5^th Plaintiffs

Ms. Phoebe Man instructed by Messrs. Ma Tang and Co. for the Defendant