Wong Lai Mei v. Kwong Pak Leung
Read the full judgment text of HCA 2091/2014 on BabelCite. This High Court CFI judgment was delivered on 22 January 2015.
1. This is an application on the part of the plaintiff for an interlocutory injunction against the defendant. The subject matter is a property known as Flat 15 on the 8 th Floor of Man Wah Building, Nos 1‑23 Man Ying Street and Nos 2‑24 Man Wui Street, Kowloon, Hong Kong (“the Property”).
Cited by 7 cases · Cites 4 cases
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HCA 2091/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2091 OF 2014 _______________
_______________ Before: Mr Recorder Pow SC in Chambers Dates of Hearing: 13 and 16 January 2015 Date of Reasons for Decision: 22 January 2015 ______________________ REASONS FOR DECISION ______________________ 1.This is an application on the part of the plaintiff for an interlocutory injunction against the defendant. The subject matter is a property known as Flat 15 on the 8th Floor of Man Wah Building, Nos 1‑23 Man Ying Street and Nos 2‑24 Man Wui Street, Kowloon, Hong Kong (“the Property”). 2.The plaintiff is the lawful and natural daughter of Wong Kwi Sing, deceased (“the Deceased”). She is suing as the intended administratrix of the estate of the Deceased. 3.Since 4 October 1983, the Property has been owned by the Deceased and the defendant as tenants‑in‑common in equal shares. The Property is about 600 sq feet in size comprising of three rooms. As of 1983, the three rooms were occupied in this manner:
4.The Deceased was married in the Mainland and had three children: (i) the plaintiff; (ii) Wang Ruiqiang (“Ruiqiang”) and (iii) Wong Yui Hing (“Yui Hing”). After Yui Hing came to Hong Kong around November 2000, he resided in the third room which was originally rented out. When the plaintiff came to Hong Kong in January 2002, Yui Hing shared the third room with the plaintiff. 5.The defendant’s relationship with the Deceased and his family was amicable up to the time when the Deceased passed away on 20 January 2006. It is not in dispute that on 20 December 2005, whilst the Deceased was hospitalized, he executed a Chinese instrument in his own handwriting (“the Instrument”) in the following terms:
6.The Instrument purported to transfer the Deceased’s interest in the Property to the defendant. The terms of the Instrument clearly showed that it was not testamentary in nature. It was also not a deed and hence could not effect a transfer of interest in the Property (see section 4 of the Conveyancing and Property Ordinance, Cap 219 of Laws of Hong Kong). 7.It is the plaintiff’s case that the Property remained and remains owned by the Deceased’s estate and the defendant as tenants‑in‑common in equal shares. The plaintiff alleged that since mid‑2006, the defendant had been attempting to oust Yui Hing and her from the Property. In particular, since around March 2014, the defendant has adopted high‑handed and disturbing acts causing nuisance to the plaintiff’s occupation in the Property:
8.By a letter dated 12 June 2014, the plaintiff complained through her solicitors about the aforesaid disturbing acts and demanded the defendant to stop the same. In a reply letter from the defendant’s solicitors dated 23 June 2014, the defendant denied the plaintiff’s allegations. He further alleged that there was water leakage from the toilet into the lower flat and that he needed to carry out repair works to the toilet. A quotation was enclosed. The plaintiff considered that the quotation included various renovation works totally unrelated to the repairing of the toilet. In her reply, she agreed to the carrying out of repair works and was willing to bear half of the costs. She however objected to other renovation works. 9.By a letter dated 30 July 2014, the defendant’s solicitors purportedly gave notice of termination of an alleged licence to the plaintiff and demanded the plaintiff to vacate the Property on or before 31 August 2014. 10.The plaintiff’s solicitors replied by a letter 8 August 2014 stated that the alleged termination notice was invalid and groundless. They stated that the plaintiff would not move out of the Property. 11.On 18 August 2014, the defendant and a male worker broke the water tank of the toilet disconnecting the water pipe to the wash basin. In the next morning, contractors came to the Property to carry out decoration works as per the defendant’s instructions. The defendant said the decoration work would take two weeks to complete. The plaintiff found that she could not reside in the Property and temporarily moved to stay with Yui Hing in his public housing unit. 12.On 16 September 2014, the plaintiff’s solicitors received a letter from the defendant’s solicitors stating that the defendant had taken possession of the Property on 15 September 2014. A notice was posted at the entrance of the Property. On or about 18 September 2014, the plaintiff discovered that the defendant had changed the locks to the gate and front door of the Property. She and Yui Hing had since been denied access to the Property. 13.The plaintiff issued the Writ on 20 October 2014 claiming inter alia:
14.On the same day of the Writ, the plaintiff also issued an inter partes summons seeking the following interlocutory injunctive reliefs:
15.The defendant relied on the following main points in his Defence:
Preliminary point 16.At the hearing of the summons for interlocutory injunction, Ms Tang, counsel for the defendant raised a preliminary point on the validity of this action. She pointed out that this action was commenced by the plaintiff in her capacity as “the intended administratrix of the estate of the Deceased” at a time when clearly there had not been a grant of administration. She relied on the authority of Millburn‑Snell & ors v Evans [2012] 1 WLR 41. 17.In Millburn‑Snell, the claimants, purportedly acting as the personal representatives of a deceased, issued a claim form claiming entitlement to 50% of beneficial interest in a property and in a business carried on at that property. The defendant was the owner of the property. He applied to strike out the claim on the ground that, absent the grant of letters of administration to the claimants at the time when they commenced the action, they had had no title to sue. The judge acceded to the application and struck out the claim, having considered that he was supported by a host of cases and referred to Ingall v Moran [1944] KB 160. The claimant appealed and the English Court of Appeal dismissed the appeal. Rimer LJ said:
The court then went on to examine rule 19.8(1) which reads:
Rimer LJ eventually concluded (in §30) that rule 19.8(1) concerned exclusively with giving directions for the forward prosecution towards trial of validly instituted proceedings when a relevant death requires their giving. It applied to cases where death occurred during their currency and would usually be of a party. 18.Mr Cheung for the plaintiff submitted that the plaintiff’s claim is not a nullity and sought to rely on Order 15, rule 6A, in particular sub‑rule (3):
19.The problem with Mr Cheung’s submission was that it was contrary to the decision of the Court of Appeal in Chung Yi Yuen (the intended administrator of the estate of the deceased) v Lau Koon Shing & anor [1999] 2 HKLRD 413. In that case, the deceased died in a traffic accident. The plaintiff (a brother of the deceased) obtained a power of attorney from the deceased’s wife and immediate family which authorized him to represent the family in claiming damages against those responsible for the accident. The plaintiff was however not an executor or administrator of the deceased’s estate although he had applied for a grant of administration which was yet to be granted. The plaintiff commenced action under both the Fatal Accidents Ordinance, Cap 22 (“FAO”) and the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”). The defendant argued that the plaintiff was not entitled to bring the action. The defendant succeeded before a judge and the plaintiff appealed. The appeal was dismissed. 20.On the FAO claim, the Court of Appeal held that section 5(1)(a) of FAO did not apply because the wording of the section is:
The plaintiff did not qualify because the action was brought in his name. Neither did he qualify under section 5(2) which is catered for the situation where there is no executor or administrator of the deceased. It is because the sub‑section states that:
21.On the LARCO claim, counsel sought to rely on Order 15, rule 6A(3). The court rejected such argument on the basis that the action did not fall within the wordings of sub‑rule (3). Godfrey JA said at 416F:
22.The plaintiff in these proceedings is in the same situation. The plaintiff sues not in the name of the Deceased. She sues in her own name and in her capacity as “the intended administratrix of the estate of the deceased”. That is exactly what the brother in Chung Yi Yuen did. In the circumstances, I am bound by the authority to hold that the plaintiff is not entitled to bring these proceedings in that manner. In the same way, Bharwaney J fell bound by the Court of Appeal decision in Bushra Bibi and Method Building & Engineering Works Ltd [2014] 3 HKLRD 21. In that case, Bharwaney J gave guidance as to how to begin an action based on a LARCO claim utilizing the machinery of Order 15, rule 6A(3). His Lordship opined that the title of the plaintiff should be stated as “ABC, deceased”. An application should then be taken out under rule 6A(4) for a person to be appointed to represent the estate. I agree and this suggestion is equally applicable to a claim basing on a cause of action that survives the death of a person. In agreeing with Bharwaney J, I disagree with the observation of the learned editor of Hong Kong Civil Procedure 2015 at §15/6A/2. The learned editor suggested that the application of Order 15, rule 6A(3) should be confined to cases where the naming of a person (who was at that time already dead) as plaintiff was due to inadvertence or lack of knowledge. The basis of the learned editor’s view was the common law principle of action personalis moritur cum persona. With respect, I do not see any basis for restricting the application of Order 15, rule 6A(3) in that way. The wordings of the rule certainly do not admit such restrictive interpretation. So long as an action “purports to have been commenced by a person” (that person being dead at the commencement), it “shall be treated … as having been commenced by his estate…”. Order 15, rule 6A was enacted pursuant to section 55A of the High Court Ordinance which was intended to rid of unnecessary technicalities and to facilitate the commencement of proceedings in respect of the estates of deceased persons. The old common law principle represents no obstacle to a purposive and liberal interpretation of the rule. 23.Returning to Chung Yi Yuen, it is interesting to note that the editor of the law report noted that the Court of Appeal did not consider and determine whether, in the result, the action was a nullity and incurable by amendment or whether, upon the grant of letter of administration, the writ could be amended to join the administrator as plaintiff. Mr Cheung submitted that Chung Yi Yuen is not an authority to suggest that the error in this case amounted to a nullity. He referred me to Re Estate of Luk Kim Ying [2008] 5 HKLRD 743. With respect, this case is clearly distinguishable. In that case, the plaintiff commenced the action in her own personal capacity as a purported beneficiary of the intestate estate. J Poon J held that on the authority of Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694, the plaintiff had a chose in action basing on her rights in the intestate estate, capable of being invoked for any purpose connected with the proper administration of the estate. The plaintiff was thus entitled to bring the action in her personal capacity. Yet, on the authority of Ip Cheung Kwok v Sin Hua Bank Trustee Ltd (unreported, CACV 34/2005), it was necessary for her to join the personal representative of the estate or a suitable person to represent the estate. In the absence of a proper joinder, Poon J considered that the action was irregular though not a nullity. It can be seen that the situation was clearly different and distinguishable in Luk Kim Ying. Furthermore, we have now the authority of Millburn‑Snell. I can see no reason why the reasoning of the English Court of Appeal in Millburn‑Snell should not apply in Hong Kong and Mr Cheung had not suggested any. In my judgment, the bringing of the action and the filing of the Writ in the present case was a nullity ab initio. As Scott LJ said in Ingall, this action was born dead and could not be revived. On this ground alone, the summons must be dismissed. 24.I was told by Mr Cheung that the plaintiff’s application for letters of administration had reached a matured stage. There is no issue of limitation. She can instigate a fresh action as and when she obtains a grant. Alternatively, she can decide to bring a new action adhering to the guidance of Bharwaney J in Bushra Bibi or restructuring her case so as to take the course adopted by the plaintiff in Luk Kim Ying. Conclusion 25.Since I found the instigation of the action to be a nullity, I would have to dismiss the action all together (not just the summons for interlocutory injunction). I did so order on 16 January 2015 and these are the reasons for my decision. Postscript 26.After announcing my orders, I indicated to counsel that should a new action be instituted by the plaintiff, parties should review their positions with practicality in mind. It is never a good idea to force two “fallen-out flatmates” to share one residence. The major disputes between them are on: (1) the legal effect of the Instrument; and (2) proprietary estoppel. Both sides have already set out their respective cases in their affirmations. The new action is unlikely to involve lengthy discovery. Preparation of witness statements in the new action has now become a mechanical exercise. The circumstances of this case cry out for an order of speedy trial. This would no doubt serve parties better than a protracted battle on interlocutory injunction.
Mr Anthony Cheung, instructed by Cheung, Chan & Chung, assigned by Director of Legal Aid, for the plaintiff Ms Candy Tang, instructed by Alan Ho & Co, for the defendant | ||||||||||||||
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