FUNG KAI LOI v. FUNG TAI YIU AND OTHERS

1981 No. MP1350

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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RULING

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1. With the Statement of Claim gone in the dismissal of the plaintiff's action, the defendants seek summary judgment against the plaintiff on their Counterclaim.

2. It would be necessary to refer to the past conduct of the plaintiff briefly : on the 28th October, the plaintiff caused to be filed a summons for his action to be discontinued. Solicitor for the plaintiff, Mr Ip, in his affirmation of the 8th November, paragraph 6, stated :

 

"To clarify the plaintiff's position in the present summons herein the plaintiff seeks to discontinue or withdraw his claims in these proceedings but will continue to defend the Counterclaim by the defendants if the defendants desire to proceed therewith. "

3. The paragraph is in vague terms with a mere indication of the plaintiff's desire to defend the Counterclaim. Little is known of precisely what transpired before Godfrey J. in Chambers. The repeated suggestion of this Court to return to the learned judge for the true purport of the reservation in the Order made by Godfrey J. on the 9th November, i.e. "the Counterclaim to stand for trial unaffected by this Order", has not been received by either the plaintiff or the defendants with any real enthusiasm.

4. On further reflection, I now find myself much impressed by the word "unaffected". On the face of it, the reservation clearly means that the trial of the Counterclaim is to be unaffected by the order of dismissal. The trial of the Counterclaim evidently includes defence of the Counterclaim. If my interpretation is to be accepted, which I think it should be, then the defence of the Counterclaim should in no way be prejudiced by the Order made by Godfrey J. The result is of course unusual but the right of a litigant to have access to courts is a very substantial right and should not lightly be disturbed except by clear language. In my view, the plaintiff's defence of the defendants' Counterclaim on his existing pleading should not in any way be impeded or hindered by the dismissal of the action in the Consent Order.

5. That seems to be the solution to the instant application made on behalf of the defendants for summary judgment. In deference to counsel submissions, it would not be out of place for me to make a remark or two.

6. In paragraph 6(a), the plaintiff denies any possibility of a licence but joins issue with the defendants as to whether such a licence could be or has been revoked by the filing of the Counterclaim. Miss Eu argues that the very filing of the Counterclaim would achieve the result of an instant termination of any possible licence in favour of the plaintiff. Counsel further criticises paragraph 6(b) as a paragraph not capable of raising any tenable legal issue. Paragraph 6(b) is a paragraph difficult to understand. It may be taken as alleging that a licence coupled with interests and rights in agricultural land, if created, could not be terminated. If it were permissible to read and decipher paragraph 6(b) in the manner as I have done, the same would still lack pleaded basic ingredients for introducing an alleged licence coupled with interests and rights.

7. Miss Eu does seem to have good justification for inviting this Court to ignore paragraph 6(b) of the Re-Amended Defence to Counterclaim.

8. Apart from the question of adverse possession, Counsel for the plaintiff draws my attention to passages in Spencer Bower on Estoppel per rem Judicatum.  It is suggested that the plaintiff's plea of adverse possession stems from the title in his late father and in himself. There is silence on the succession to the interests of the plaintiff's clan brother. Mr Chain submits that the plaintiff's plea is founded on as well the late father's title as the plaintiff's own title and perhaps also on the clan brother's title. The dismissal of the action could have been justified on one or two or all of these assertions. In the circumstances, Mr Chain submits that no clear estoppel has been established and that the plaintiff should not be disallowed to re-ventilate all these allegations in his defence of the Counterclaim. It would seem that Miss Eu's reply has much to commend itself. The plaintiff relies on all these alleged titles not conjunctively but disjunctively. Great play was also made of extinguished title. However, if the dismissal should have the effect of creating an estoppel, none of these allegations on adverse possession could now be raised.

9. Finally, I turn to the plea of immediate possession. The common law plea of mere possession in Minet & Johnson is no longer available, so concedes Mr Chain. In any case the plea is not being relied upon by the plaintiff.  It is essential in an action in ejectment to plead the plaintiff's possessory title for his right to immediate possession. Passages at pages 879 and 880 as well as the Precedent Form 550 at p. 881 in Bullen & Leake, 12th Edn., are materials for that proposition. The defendants have not pleaded their right to immediate possession which is a threshold averment in their action in trespass against the plaintiff.

10. For all the reasons I have given, the defendants' application must fail. It must also fail, so Mr Chain urges upon me, for an additional reason. Dismissal of the action was by consent granted on the 9th November 1988. Disregarding the alleged adverse possessory title of the clan brother for the time being, the alleged adverse possessory title of the late father of the plaintiff had accrued by 1941, since his alleged adverse possession commenced in 1920. Hence, the title of the late father of the plaintiff as alleged would have the effect, if established, of extinguishing the title of the defendants. The subsequent consent given on behalf of the plaintiff to the dismissal of his action in November 1988 cannot, so counsel argues, revive the alleged extinguished title to the land. Mr Chain's contention in this regard may only be canvassed if he can overcome the first estoppel hurdle. In the same stream, like arguments may well be run for the plaintiff's own adverse possessory title or his clan brother's.

11. There are, therefore, principally two issues which are detrimental to the application of the defendants: to sum up, first the question of estoppel or the absence of it, and secondly, the plea of the right to immediate possession or the omission of it. I dismiss the defendants' application with, subject to what counsel have to say, costs to the plaintiff.