|
DCCJ 585/2021
[2025] HKDC 1497
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 585 OF 2021
---------------------------------------
BETWEEN
| |
CHEUNG KA MAN |
Plaintiff |
|
and
|
| |
CHEUNG YUE WAI LILY |
1st Defendant |
| |
CHEUNG SIN YU VENESA |
2nd Defendant |
---------------------------------------
| Before: |
Deputy District Judge B. Mak in Court |
| Date of Hearing: |
17 July 2025 |
| Date of Written Closing Submissions: |
24 July 2025 |
| Date of Judgment: |
25 September 2025 |
---------------------------
JUDGMENT
---------------------------
Introduction
1. This is the trial of the plaintiff’s claim for possession of Flat F on 31st Floor including the Balcony & the Utility Platform thereof of Block 29 Park Island, No 8 Pak Lai Road, Ma Wan, New Territories (“the property”).
Absence of the 2nd defendant
2. The 2nd defendant is the daughter of the 1st defendant. She was adjudged bankrupt. Leave was given to the plaintiff to proceed this action against her on 16 May 2025.
3. The 2nd defendant was absent at the 2nd pre-trial review on 3 July 2025. Her counterclaim was therefore provisionally struck out pursuant to Order 25 rule 4(2) of the Rules of the District Court.
4. She was also absent at the trial which took place on 17 July 2025.
The 1st defendant’s absence at the trial
5. The 1st defendant was also adjudged bankrupt. Leave was given to the plaintiff to proceed this action against her on 22 May 2025.
6. In the 2nd pre-trial review, the 1st defendant informed this court that she had already notified the Official Receiver of the present action. She was asked by the Official Receiver to write out her defence for consideration. She was in the course of doing so.
7. On the 1st day of the trial on 17 July 2025, the 1st defendant handed a hand-written letter to the clerk and then left. In the said letter, she stated the difficulties she was facing and wished to have the matter settled out of court.
8. As the 1st defendant had left the court room and disappeared, settlement negotiation at the doorstep was not feasible. I accordingly allowed the trial to proceed.
The locus standi of the 1st and 2nd defendants upon bankruptcy
9. The 1st and 2nd defendants were adjudged bankrupt under HCB 7665/2023 and HCB 7667/2023 respectively.
10. Upon bankruptcy, their properties (including things in action) were vested in the trustee-in-bankruptcy by the effect of ss 12, 53(4), 58 and 61(b) of the Bankruptcy Ordinance. As such, consent of the trustee-in-bankruptcy is required in order to continue defending the plaintiff’s claim and maintaining the counterclaim.
11. According to the 1st defendant at the 2nd pre-trial review, she had informed the Official Receiver of the present action. She had yet to obtain its consent for the purpose of maintaining her defence and counterclaim.
12. No such consent was forthcoming as at the commencement of the trial.
13. In the circumstances, neither the 1st nor the 2nd defendant had the locus standi to take part in the trial.
The plaintiff’s case
14. The plaintiff was the younger sister of Mr Cheung Kam Tong (“Cheung KT”).
15. The 1st defendant was the ex-girlfriend of Cheung KT. The 2nd defendant was the daughter of the 1st defendant and Cheung KT.
16. On 31 March 2011, the plaintiff and Cheung KT became the registered owners of the property as joint tenants.
17. Cheung KT passed away on 7 April 2020. Thereafter, the plaintiff became the sole owner of the property.
18. Prior to the passing of Cheung KT, the entire beneficial interest of the property belonged to the plaintiff. Cheung KT held the legal ownership of the property on trust for the benefit of the plaintiff.
19. On or about June 2017, Cheung KT requested the plaintiff to allow the 1st and 2nd defendants to reside in the property for 2 years.
20. The plaintiff agreed to grant a licence to Cheung KT to allow the 1st and 2nd defendants to reside in the property for 2 years. Cheung KT promised to the plaintiff that he would pay a sum of $15,000 per month during the licence period.
21. Cheung KT did pay the plaintiff $15,000 per month between September 2017 and March 2018 in the total sum of $105,000. He stopped making further payment thereafter. In January 2020, Cheung KT made a one-off payment of $32,000 to the plaintiff which the last payment he made.
22. The licence expired by effluxion of time on 1 August 2019 or alternatively on 7 April 2020 upon the death of Cheung KT.
The defendants’ case
23. The defendants said the property was purchased entirely with the money of Cheung KT. As Cheung KT could not obtain mortgage on his own, he sought assistance from the plaintiff to be his joint tenant. The down payment of $2,500,000 was paid by Cheung KT whereas the mortgage loan of $2,000,000 was repaid by him.
24. At the time of the passing of Cheung KT, approximately $890,000 of the mortgage loan was outstanding.
25. The defendants said the plaintiff held the property on trust for Cheung KT and upon his death for his estate.
26. The defendants said Cheung KT never requested the plaintiff to allow the defendants to reside in the property. The monthly payments made by Cheung KT were his contributions for the mortgage repayments.
27. The defendants counterclaimed for a prohibitory injunction restraining the plaintiff from further harassments and/or notices to quit and/or any other forms of harassment on them and damages.
Findings of fact
28. The plaintiff and Mr Lo Wai Lun Wyllan gave evidence. Their evidence were of course unchallenged.
29. I accept and find as a fact that the down payment of $428,000 for the purchase of the property and the stamp duty of $118,000 were paid by the plaintiff solely. The sum of $380,000 borrowed from Mr Lo on 11 February 2011 was repaid on the following day.
30. On completion, the plaintiff paid the balance of purchase price in the sum of $3,852,000 in the following manner:
(a) $1,752,000 by the plaintiff’s own money; and
(b) $2,100,000 by a mortgage loan taken out from the Bank of East Asia.
The solicitors’ costs of $8,060 was also paid by the plaintiff.
31. I am also satisfied and find as a fact that the monthly mortgage payments were all paid by the plaintiff’s own money.
32. In 2017, at the request of Cheung KT, the plaintiff permitted the 1st and 2nd defendants to live in the property for 2 years starting from June 2017. Cheung KT promised to pay the plaintiff $15,000 per month. However, he only paid the plaintiff for 7 months from September 2017 to March 2018 in the total sum of $105,000 and a sum of $32,000 on 23 January 2020.
33. Cheung KT passed away on 7 April 2020. Thereafter, the plaintiff became the sole owner of the property by virtue of the right of survivorship.
34. Due to the passing of Cheung KT, the plaintiff decided to determine the licence of the 1st and 2nd defendants to occupy the property. Notices to quit were posted up at the property on 10 November and 31 December 2020 by the plaintiff’s solicitors.
35. By reasons of my findings of fact aforesaid, the defendants’ allegation that Cheung KT paid the down payment for the purchase of the property and was the person who repaid the mortgage loan must be rejected. Furthermore, the defendants’ allegation that the plaintiff was merely holding the property on trust for Cheung KT is also rejected.
36. I hold that the 1st and 2nd defendants occupied the property on a licence granted by the plaintiff. The licence came to an end upon the passing of Cheung KT on 7 April 2020. The licence was formally revoked by the first notice to quit which was posted up at the property on 11 November 2020.
Conclusion and Order
37. By reasons of the foregoing, the plaintiff is entitled to vacant possession of the property.
38. The plaintiff is also claiming mesne profits but no expert evidence was adduced in that regard. Mr Ronald Pang who appeared together with Mr Nicklaus Pannu-Yuon, counsel for the plaintiff, submitted that reference can be made to:
(a) the rental price of $12,500 per month under the tenancy agreement dated 16 May 2010 which was assigned along with the property upon purchase; or
(b) the sum of $15,000 per month which Cheung KT promised to pay to the plaintiff for the occupation of the property by the 1st and 2nd defendants.
39. Whilst there is not expert opinion before this court, I am inclined to think that the market rent of the property would not be less than the rental value as at 2010, ie $12,500 per month.
40. Accordingly, the plaintiff is entitled to mesne profits at the rate of $12,500 per month from 11 November 2020 until vacant possession of the property is delivered to the plaintiff.
41. There is no evidence to support the counterclaim. The 1st defendant’s counterclaim is dismissed.
Costs
42. Costs to follow the event. I order that the 1st and 2nd defendants do pay the plaintiff the costs of this action (together with all costs reserved, if any) with certificate for one counsel, to be taxed if not agreed.
| |
( B. Mak ) |
| |
Deputy District Judge |
Mr Ronald Pang and Mr Nicklaus Pannu-Yuon, instructed by ZM Lawyers, for the plaintiff
The 1st and 2nd defendants were not represented and did not appear
|