KWAN YUNG SAU MUI MARY (the administratrix of the estates of Yung Pak Tat, deceased and Chen Voon Lan, deceased) v. YUNG KWOK WAH DAVE

HCA 2832/2018

[2020] HKCFI 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2832 OF 2018

____________

____________

_______________

D E C I S I O N

_______________

1.  The application before the Court is a “strike out” summons brought by the plaintiff by which the plaintiff seeks to strike out both the defence and the counterclaim of the defendant, relying on O 18 r 9(1)(a), and contending, that there is no reasonable cause of action or defence disclosed.

Background

2.  The dispute between the parties concerns two properties which were owned by the parents of the parties to this litigation. The (now deceased) father (“Father”) owned one property (“Wise Mansion”) and the now deceased mother (“Mother”) owned the other (“Mercer Street”).  The parents executed wills in 1976 by which each left their assets, including these properties, to the other.

3.  Mother passed away in July 2003 and Father in June 2008.    No grant of representation was taken out between the date of Mother’s death and Father’s death in respect of Mother’s estate but the plaintiff was granted letters of administration in respect of Father’s estate in December 2010, and in respect of the Mother’s estate in July 2011.  The plaintiff is therefore the administratrix of both Mother’s and Father’s estates.

4.  The defendant is in residential occupation of the Wise Mansion flat, which he says has been his home for 45 years, living there with his wife and son.  He is also in possession of the keys and title deeds for the Mercer Street property.  Since 2015 the plaintiff, who is his sister, has been seeking the deeds and vacant possession of both properties in her capacity as the administratrix of both estates.

5.  The defendant’s defence is, in summary, that he is entitled to remain in possession of both properties.  He says that Father represented to him and the other siblings that the properties were to pass to the defendant on his demise, and he gave the title deeds and keys to the defendant.  Since March 1999 the defendant has, he says, treated the properties as if they were his own.

6.  He has, he says, expended money on the properties, both by way of regular expenditure, and for necessary maintenance and improvements.  His occupation of the properties has, since May 2002, been exclusive, following the move by Mother and Father into elderly person accommodation.  He asserts also that the claims of the estates of Mother and Father to the respective properties has been extinguished by limitation.

7.  The defendant also counterclaims against the plaintiff seeking orders in regard to the administration of the estates and seeking a declaration as to the titles of Mother and Father in the respective properties having been extinguished by limitation.

8.  The defences therefore fall into two groups; adverse possession and proprietary estoppel.

Strike Out Principles 

9.  There was no dispute between the parties over these.  The jurisdiction is to be used in plain and obvious cases, where a claim or defence is so obviously unsustainable as to justify the matter not being allowed to go to trial.  Importantly, where a cause of action or a defence is reliant on specific contested or unestablished facts in order to succeed, then a strike out is not appropriate.

Submissions

10.  Mr Chan, on behalf of the plaintiff strongly submits that the claim in adverse possession cannot succeed, placing particular reliance on the defendant being, as a matter of law, an executor de son tort.  Mr Chan referred to James v Williams and various subsequent cases as illustrating the applicability of the principle to the present circumstances.

11.  As regards the proprietary estoppel defence, Mr Chan submitted that this must fail also because neither the alleged regular expenses, such as monthly outgoings, utilities etc., nor the irregular expenditure on improvements and repairs, such as building maintenance expenses and compliance with fire services notices, could constitute the necessary detriment to support the estoppel plea.  The latter, in particular, would constitute money that the defendant would have expended in any event, irrespective of any promise or representation by Father.

12.  Mr Cheung, for the defendant, submits that these are “fact sensitive” issues, and further, that even if some of the expenses for the Wise Mansion property might be said to have been such as would inevitably be paid by the defendant (because he lived there) the same could not be said of the Mercer Street property.

13.  On balance, I agree with Mr Cheung that the issues arising from the proprietary estoppel defence are “fact sensitive”, and as such, not amenable to a summary determination on an application such as this.  There is no doubt much room for improvement in the pleading of the defendant by way of particularization, but that, in itself, is not a basis on which the defence should be struck out.

14.  In those circumstances I say nothing further about the adverse possession argument.

Disposition

15.  In the circumstances the primary relief sought by the plaintiff in the summons dated 28 October 2019 is not granted, and the strike out application is dismissed.

16.  The plaintiff also seeks, in the alternative leave to file and serve, out of time, a Reply and Defence to Counterclaim in the event that its primary application is unsuccessful.  This is clearly necessary in order for there to be a proper “agenda” for the trial, and leave is accordingly granted in terms of the summons.

17.  In the circumstances, and on an order nisi basis, the costs of the applications are to be to the defendant.