HO KWOK HO AND OTHERS v. HO WAI CHU AND OTHERS

DCCJ 4494/2018

[2019] HKDC 994

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4494 OF 2018

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REASONS FOR DECISION

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INTRODUCTION

1.  This is an application for summary judgment under Order 14, rule 1 of the Rules of the District Court, Cap 336H, pursuant to the Summons dated 15 February 2019 (the “Summons”).  At the hearing on 22 July 2019, the 1^st and 2^nd plaintiffs were represented by Mr Choi Kin of Messrs K B Chau & Co (“Mr Choi”), and the 1^st to 3^rd defendants were represented by counsel Mr Kenneth C. L. Chan (“Mr Chan”).  The 4^th defendant was unrepresented and absent from the hearing.

2.  At the end of the hearing, I granted unconditional leave for the 1^st to 3^rd defendants to defend this case, with reasons for my decision to be handed down in due course.

BACKGROUND

3.  I will first set out the following facts to provide some background information about the present case. These facts are not disputed by the parties.

4.  The 1^st plaintiff Mr Ho Kwok Ho (“1^st Plaintiff”), Mr Ho Kwok Chung (“HKC”) and the 1^st defendant Madam Ho Wai Chu (“1^st Defendant”) are the sons and daughter of Madam Lau Shui Yin (the “Mother”).  The 2^nd defendant, Mr Hui Hon Chau (“2^nd Defendant”), is the husband of the 1^st Defendant.  The 3^rd defendant, Miss Hui Wai Yan (“3^rd Defendant”), is the daughter of the 1^st and 2^nd Defendants.

5.  On 12 August 1996, the 1^st Plaintiff and the Mother acquired a property situate at Flat B, 3^rd Floor, Blocks A B & C, Wah Chi Mansion, No. 6 Kam Fung Street, Kowloon (the “Property”).  They own the Property as joint tenants.

6.  The 1^st to 3^rd Defendants started residing at the Property since about 2004, after the 1^st Defendant was declared bankrupt on 5 June 2003.^[1]  They continued to reside at the Property after the 1^st Defendant’s bankruptcy order was discharged on 5 June 2007, and were still residing there at the date of the hearing on 22 July 2019.  Pausing here, I would add that the 2^nd Defendant was also declared bankrupt in September 2003.

7.  By the order of Fung J dated 10 August 2018, the 1^st Plaintiff and HKC were appointed Committee of the Mother in HCMH 38/2018, i.e. the 2^nd plaintiff in the present action (“2^nd Plaintiff”).  By this order, the 2^nd Plaintiff was authorised in the name and on behalf of the Mother to give any necessary notices of withdrawal and to receive and to give a discharge for the keys and title deeds and rents and profits of any real properties in Hong Kong or elsewhere to which the Mother is entitled, with powers to manage the same and to pay all proper outgoings thereof.^[2]  The 2^nd Plaintiff was also authorised to take any action(s) appropriate, including taking legal action and retaining solicitors and counsel, to protect the interests of the Mother in her properties, including the Property (the “HC Order”).^[3]

8.  Before HCMH 38/2018, the 1^st Plaintiff, in his capacity as one of the owners of the Property, had commenced an action in the Lands Tribunal (LDPD 264/2017) against the 1^st to 3^rd Defendants, to seek from them possession of the Property upon termination of a tenancy agreement on 31 December 2016.^[4]  The 1^st Plaintiff’s claim was dismissed by Member Mr Alex Ng (“Member”) on 2 March 2017 for the reason that the 1^st Plaintiff had failed to prove that there was a lease between himself and the 1^st to 3^rd Defendants.  As such, there was no arrears of rent as alleged, on which the 1^st Plaintiff’s claim in the Lands Tribunal was based.[5]  The 1^st Plaintiff’s review of such decision was also dismissed by the Member on 7 April 2017.[6]

9.  After obtaining the HC Order, 1^st and 2^nd Plaintiffs commenced the present action against the 1^st to 3^rd Defendants and all occupiers of the Property (the latter hereinafter referred to as the “4^th Defendant”).  The 1^st to 3^rd Defendants filed their respective Acknowledgements of Service on 23^rd October 2018.

10.  By the Summons, 1^st and 2^nd Plaintiffs applied for summary judgment against the 1^st to 4^th Defendants.  The Summons is supported by the affirmation of HKC filed on 18 February 2019 (“HKC’s 1^st Affirmation”).  Pursuant to the order of Mr Registrar Ho dated 26 April 2019, 1^st to 3^rd Defendants filed their respective affirmation in opposition to this application on 31 May 2019. An affirmation in reply was then filed by HKC on 5 July 2019 (“HKC’s 2^nd Affirmation”).

THE 1^ST AND 2^ND PLAINTIFFS’ CASE

11.  As aforesaid, only HKC of the 2^nd Plaintiff has filed evidence in support of this application.

12.  In their amended statement of claim, the 1^st and 2^nd Plaintiffs said that, without their consent, the 1^st to 3^rd Defendants have since June 2007 occupied the Property.  Despite numerous demands from the 1^st and 2^nd Plaintiffs, the 1^st to 3^rd Defendants refused to vacate and return possession of the Property.  The 1^st and 2^nd Plaintiffs therefore seek an order that vacant possession of the Property be returned, and claimed damages for trespass or mesne profits on the Property from June 2007 until vacant possession of the same is delivered.  The 1^st and 2^nd Plaintiffs also claimed for an account of any rental received by the 1^st to 3^rd Defendants in relation to the Property from June 2007 until delivery of vacant possession.

13.  In HKC’s 1^st Affirmation, he had exhibited and referred to the transcript of the hearing before Fung J on 10 August 2018 in the case of HCMH 38/2018.  As shown in the transcript, apart from Mr Choi, the said hearing was attended by the 1^st and 3^rd Defendants.  HKC said that during this hearing, upon inquiry by Fung J, 1^st Defendant admitted that she had not paid rent since her bankruptcy order was discharged on 5^th June 2007, and she was unable to provide any reason to justify her continued occupation of the Property since then.

THE 1^ST TO 3^RD DEFENDANTS’ CASE

14.  Although the 2^nd and 3^rd Defendants filed their own affirmations, these affirmations simply adopted the evidence contained in the 1^st Defendant’s affirmation (“1^st Defendant’s Affirmation”).

15.  In the 1^st Defendant’s Affirmation, her narrative began with the Mother having purchased the Property with her own money, but acquired it in the joint names of herself and the 1^st Plaintiff.  The Mother was however unhappy about the 1^st Plaintiff residing at the Property with his future wife and the wife’s parents.  After the 1^st Plaintiff and his wife had moved out of the Property in 2003, the Mother was again unhappy that the 1^st Plaintiff had rented out the Property to his wife’s relatives.  The 1^st Defendant explained that the Mother did not want someone who was not within the family to occupy the Property.  As such, the Mother moved from her flat in Tseung Kwan O to reside at the Property.

16.  After both 1^st and 2^nd Defendants were declared bankrupt in 2003, they rented a flat just opposite to the Property at the monthly rent of HK$4,200.  This made the Mother happy as they were living so close to each other.  However, the 1^st Defendant persuaded the Mother to move back to her Tseung Kwan O flat, as there was no lift in Wah Chi Mansion, and the Mother was suffering from leg pain.  Fearing that the Property would again be occupied by the relatives of the 1^st Plaintiff’s wife, the Mother proposed to lease the Property to the 1^st to 3^rd Defendants at the same monthly rent of HK$4,200, exclusive of property tax. The 1^st Defendant agreed, and started to lease the Property from the date when the Mother moved back to her Tseung Kwan O flat, and up to 15 September 2007, when the bankruptcy orders of both the 1^st and 2^nd Defendants were discharged.

17.  According to the 1^st Defendant, during an episode in October 2004 where HKC had demanded the 1^st to 3^rd Defendants to leave the Property, the Mother assured to the 1^st Defendant for the first time that the 1^st to 3^rd Defendants could stay at the Property for as long as they wished, on the condition that they would continue to take care of her (“1^st Assurance”).  The Mother repeated such assurance in 2007, after the bankruptcy orders of the 1^st and 2^nd Defendants were discharged. She added that there was no need for the 1^st to 3^rd Defendants to acquire any property or to apply for public housing, as they could live in the Property for as long as they wished, but this would be on the condition that the 1^st Defendant would continue to take well care of the Mother and give her some maintenance (“2^nd Assurance”).

18.  Upon the 1^st and 2^nd Assurances from the Mother, the 1^st Defendant has since 16 September 2007 started to give HK$5,000 per month to the Mother as her maintenance,[7] and the 1^st to 3^rd Defendants have continued to reside at the Property but without payment of any rent.  They have also not applied for any public housing.

19.  Apart from the above, the 1^st Defendant relied on the 1^st and 2^nd Assurances to have her name registered with the Water Supplies Department, replaced the metal gate in about May 2009, and repaired the water pipe of the Property in or about late 2010 or early 2011, incurring a total costs of HK$3,100.  Regarding the latter, the 1^st Defendant alleged that when she informed the 1^st Plaintiff about the burst water pipe, the 1^st Plaintiff told her to handle and pay for the costs of repair, since the 1^st Defendant was the one occupying the Property based on the 1^st and 2^nd Assurances.  The 1^st Defendant suggested this showed that the 1^st Plaintiff was aware of and endorsed the 1^st and 2^nd Assurances.

20.  Despite so, in about July 2013, the 1^st Plaintiff via a Whatsapp message suggested to the 1^st Defendant that since her family was residing at the Property, she might as well acquire the same.  The 1^st Defendant relayed such message to the Mother.  The Mother once again repeated the assurance that the 1^st to 3^rd Defendants could reside at the Property for as long as they wished (“3^rd Assurance”).

21.  After the Mother was diagnosed with dementia in 2015, the 1^st Plaintiff again sent a Whatsapp message to the 1^st Defendant, demanding the 1^st to 3^rd Defendants to move out of the Property in 4 years’ time.  This was followed by a letter dated 9 November 2016, under which the 1^st Plaintiff required the 1^st to 3^rd Defendants to move out from the Property.  This eventually led to the 1^st Plaintiff’s claim in LDPD 264/2017.

THE 1^ST AND 2^ND PLAINTIFFS’ REPLY

22.  In HKC’s 2^nd Affirmation, HKC claimed that the relationship between the Mother and the 1^st Defendant was not as good as what the latter was trying to portray.  In fact, the Mother was annoyed by the 1^st Defendant’s requests for money to pay off her debts.

23.  HKC also said the 1^st Defendant was wrong in saying that the Mother was diagnosed with dementia in 2015.  In fact, the Mother was diagnosed with the same in 2010 after she suffered a stroke in the same year.  This, HKC argued, backed his claim that the relationship 1^st Defendant and the Mother was not a close one.

24.  In addition, HKC questioned the 1^st Defendant’s credibility by referring to the Notice of Opposition dated 17 February 2017 and the written submissions dated 14 March 2017 filed by the 1^st Defendant in LDPD 264/2017.[8]  It could be seen from these documents that at first, the 1^st Defendant alleged that she was not a tenant of the Property under any tenancy agreement.  However, she later changed her stance and alleged that there was a tenancy agreement between herself and the Mother from March 2004 to September 2007.

25.  HKC also attacked on the lack of documentary evidence from the 1^st Defendant to substantiate her alleged tenancy agreement or the 1^st to 3^rd Assurances from the Mother.

26.  As to the 1^st Defendant’s allegation that she had given up on her application for public housing based on the 1^st to 3^rd Assurances, HKC argued that it was always an option for her and her family to apply for public housing, and there was no sense in abandoning it simply because of the 1^st to 3^rd Assurances.  The 1^st to 3^rd Defendants should well know that they have no real interest in the Property.  The 1^st Defendant even acknowledged during the hearing at the Lands Tribunal that she would have to return possession of the Property to the 1^st Plaintiff at some point of time.[9]

27.  Regarding the payment of maintenance, HKC commented that this act was neither here nor there, as it is something commonly done by children to their aging parents out of filial piety.  It lent no support to the existence of the 1^st to 3^rd Assurances. Equally, having her name registered with the Water Supplies Department, and costs expended on repair and replacement of water pipe and metal gate, were all done for administrative convenience.  The 1^st Defendant was in the best position to take charge of and effect payments for the same as she was the occupant of the Property.

28.  Finally, HKC argued that even assuming the Mother had made the alleged 1^st to 3^rd Assurances, there was no similar assurance given or endorsement of the 1^st to 3^rd Assurances by the 1^st Plaintiff.

THE RELEVANT LEGAL PRINCIPLES

Summary judgment

29.  The following legal principles on summary judgment application are trite.

30.  In an Order 14 application, the plaintiff must first justify its entitlement to summary judgment.  The plaintiff is required to demonstrate a prima facie case on the evidence. Once that is done, the burden then shifts to the defendant to show that he does have a defence or defences to the claim.[10] The defendant must show that the defence is real or bona fide,[11] and must be credible or believable in the light of the evidence placed before the court.[12]

31.  In determining whether the defendant has a defence, the approach is twofold.  First, factually, is what the defendant says believable?  In this regard, it is not appropriate to embark on a mini-trial of the action on affidavit evidence.  The court simply asks itself whether what the defendant says is credible.[13]  Unless it is obvious that the defence put forward by the defendant is frivolous and practically moonshine, summary judgment ought not to be granted.[14]  Second, as a matter of law, even if what the defendant says is believable, the question which follows is whether what he says amount to an arguable defence in law.[15]  

32.  Apart from the above, where there is genuine and serious material factual dispute, summary judgment should not be allowed.  Where there are substantial issues of genuine complexity, the parties shall prepare for trial.[16]

33.  Furthermore, summary judgment will only be granted on the claims set out, and facts pleaded, in the statement of claim.  Any defect or omission contained in the statement of claim could not be corrected or supplemented by the plaintiff’s affidavit.  If the defect is one of substance, the application for summary judgment will be dismissed.[17]

34.  Mr Chan, in his written submissions, has also set out the following legal principles based on the defences of the 1^st to 3^rd Defendants, namely proprietary estoppel, promissory estoppel and/or licence coupled with an interest.  Mr Choi has not disputed on these legal principles.

Proprietary estoppel

35.  Regarding the doctrine of proprietary estoppel, the essential elements for the same are well established. There must be representation, reliance and detriment.  For representation, it is the owner of land who induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the owner’s property.  The representation must then be relied upon by the claimant who acts to his detriment to the knowledge of the owner.  The detriment would arise when the owner seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive.[18]

36.  Mr Chan has also relied on the passages from The Law of Real Property, 9^th edition, Megarry & Wade, at pp 677-678, to further elaborate on the above principles.  On the element of representation, the owner of the land must have encouraged the claimant by words or conduct to believe that the claimant has or will in the future enjoy some right or benefit over the owner’s property.  The owner cannot defeat the equity by establishing that he did not mean to encourage the claimant, if the claimant reasonably believed that such encouragement had taken place.

37.  In addition, the owner’s conduct may be either active or passive, and need not be the promise of a specific right or interest, provided it is clear enough in the circumstances and concerns a right in property.  For active encouragement, it has been held to include: (1) a request that claimant should act in a particular manner; (2) a written or oral assurance that the claimant would have certain rights over the owner’s land, or a greater share of land co-owned with the owner; and (3) the giving of consent to the claimant to undertake construction work either on owner’s land, or on the claimant’s own land in a manner which would in some way affect the owner.  As to passive encouragement, it occurs when the owner of land stands by and allows the claimant to act to his detriment knowing that the claimant mistakenly believes that he has or will obtain an interest in or right over the owner’s property.

38.  Regarding the element of detriment, Mr Chan cited the case of Chan Gordon[19] where it was held that a daughter’s continuous financial contribution to the subject property’s then owners, i.e. her father and uncle, amounted to detriment in support of her claim of proprietary estoppel.  Mr Chan further cited the case of Chan Qun Yuk v Kwan Siu Mui[20], where the learned deputy judge held that where an elderly benefactor who reaches a clear understanding with the claimant, who may be a relative, a friend, or a remunerated companion or carer, that if the claimant resides with and cares for the benefactor, the claimant will inherit the benefactor’s house, or will have a home for life, there is no need for the detrimental act to be connected to the land.

Promissory estoppel

39.  Both Mr Chan and Mr Choi cited the Court of Final Appeal case of Luo Xing Juan v Estate of Hui Shui See[21] to highlight the requirements on promissory estoppel, which were summarized by Ribeiro PJ in his judgment.  To start with, the constituent elements of promissory estoppel overlap with those of proprietary estoppel.  Proprietary estoppel is not applicable when the promisor was not the legal owner of the subject property and so could not confer a proprietary interest to the promisee.[22]

40.  A promissory estoppel may be said to arise where: (1) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (2) one party (the promisor), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (the promisee) that the promisor will not enforce or exercise some of those rights, duties or powers; and (3) the promisee reasonably relies upon that promise and is induced to alter his or her position on the face of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.[23]

41.  While the promise need not be express, the meaning of the promise conveyed by the promisor’s words or conduct must be clear and unequivocal.  He must make it clear that he is promising not to enforce the relevant rights or powers.  Whether there is sufficient clarity is to be assessed objectively by the court.  The court will seek to ascertain the meaning in substance of the promise.  It is the substance of its meaning that must be clear and unequivocal.  A promisor may make his intentions perfectly plain but, not being a lawyer, may express himself in terms which are legally imprecise or inaccurate.  A promisee may likewise clearly understand the substance of what is being promised without any knowledge of legal rights or powers within which the promise is framed.[24]

Licence

42.  Finally, on the defence based on a licence, Mr Chan referred to the long-established rule of the common law that a licence, once acted upon (in the sense that the licensee has completed their use), cannot usually be revoked.  Mr Chan quoted the example given in The Law of Real Property at pp 1331-1332 to illustrate on the above.  Where A gives authority to B for the doing of an act on A’s land, and the act is done and completed, then, whatever be the strict description of the authority, it is, generally speaking at any rate, too late for A, who gave the authority, to complain of it.

43.  The principle which underlines this rule is similar to the equitable doctrine of proprietary estoppel.  If B has a licence over A’s land and A encourages her to act to her detriment in the belief that she will acquire certain rights over A’s property, an equity may arise in B’s favour.  One way in which the court may satisfy that equity arising by estoppel is by declaring B’s licence to be irrevocable, either in perpetuity or only in the occurrence of certain events.

ANALYSIS

44.  Applying the above principles, 3 questions fall to be determined in this case:-

(1)  Have the 1^st and 2^nd Plaintiffs demonstrated a prima facie case?

(2)  Is the factual case of the 1^st to 3^rd Defendants believable?

(3)  If believable, does this amount to an arguable defence in law, namely proprietary estoppel, promissory estoppel and/or licence?

45.  At the hearing, I had raised with Mr Choi the question of whether, if the 1^st to 3^rd Defendants were able to establish that there was a licence granted to them by the Mother, the 2^nd Plaintiff, being the Committee and pursuant to the terms of the HC Order, would have the power to revoke it, and if so, whether the 2^nd Plaintiff would seek to invoke such power.  Mr Choi was not prepared to answer this question.  Come what may, the issue of licence and revocation of the same was never contemplated in the amended statement of claim, HKC’s 1^st and 2^nd Affirmations, or Mr Choi’s written submissions.

Have the 1^st and 2^nd Plaintiffs demonstrated a prima facie case?

46.  On the first issue, I am satisfied that the 1^st and 2^nd Plaintiffs have shown a prima facie case, which is premised on their ownership over the Property, and they are prima facie entitled to the relief which they now seek.  The burden is then on the 1^st to 3^rd Defendants to show a triable defence.

Is the factual case of the 1^st to 3^rd Defendants believable?

47.  After considering all the evidence available before me, I would answer this question in the affirmative.

48.  To start with, it is believable that the Mother would want the Property to be occupied by members of her immediately family, instead of the relatives of the 1^st Plaintiff’s wife.  It is also believable that the Mother, at a time when her daughter and son-in-law were having financial difficulties, would allow the 1^st and 2^nd Defendants, together with the Mother’s granddaughter the 3^rd Defendant, to reside at the Property, initially at a rent, which appeared to be modest, and thereafter to continue occupying the same in return for monthly maintenance.  Be that such maintenance could be said as being given out of filial piety, it was nevertheless not a duty that the 1^st Defendant was obliged to perform. Moreover, provision of the maintenance started at a time when the 1^st and 2^nd Defendants were having, or were starting to recover from, their financial difficulties.

49.  In addition, it is believable that the Mother would allow the 1^st to 3^rd Defendants to reside at the Property for “as long as they wished”, against the said background.

50.  Furthermore, it is believable when the 1^st Defendant said that the 1^st Plaintiff have knowledge of the arrangements between the Mother and the 1^st to 3^rd Defendants.  There is no dispute from the 1^st and 2^nd Plaintiffs that the 1^st to 3^rd Defendants had started to reside at the Property in about 2004.  It is indisputable that initially, the 1^st to 3^rd Defendants had to pay a monthly rental of HK$4,200 to the Mother.  In fact, the 1^st Plaintiff’s claim in LDPD 264/2017 was premised on a tenancy agreement which he allegedly terminated in December 2016.

51.  Moreover, there is no dispute that sometime in 2007, the 1^st to 3^rd Defendants had stopped paying the rent.  However, there was apparently no action being taken by the 1^st Plaintiff, being a co-owner of the Property, against the 1^st to 3^rd Defendants until 2017 under LDPD 264/2017.  The 1^st Plaintiff, either by himself or through HKC’s 1^st and 2^nd Affirmations, has given no explanation on his inaction during those 10 years.  In addition, there is no dispute that the 1^st Defendant had started to pay maintenance to the Mother since 2007, and that the 1^st to 3^rd Defendants have not applied for public housing.  There is also no evidence from the 1^st Plaintiff to contradict 1^st Defendant’s allegation that he had required the 1^st Defendant to replace the metal gate and repair the water pipe on the basis of the 1^st to 3^rd Assurances.  The cumulative effect of all these could lend credence to the existence of the 1^st to 3^rd Assurances.

52.  Overall, I find that the factual case of the 1^st to 3^rd Defendants to be believable.  Of course, one would note that the 1^st Defendant’s defence based on the 1^st to 3^rd Assurances is, and it is a common feature in similar cases, largely uncorroborated by contemporaneous documents.  However, for this application, the test is not that her defence is to be believed, but believable.  The veracity of her case should be tested at trial.

If believable, does this amount to an arguable defence in law, namely proprietary estoppel, promissory estoppel and/or licence?

53.  The general principles and requirements applicable to the 3 defences that the 1^st to 3^rd Defendants are relying on have been summarized above. Since the Mother was and is an owner of the Property, the obvious defences would be proprietary estoppel and licence, which share similar elements.

54.  By the alleged 1^st to 3^rd Assurances, the Mother made the representation that the 1^st to 3^rd Defendants would be allowed to continue residing at the Property for as long as they wished, and they were not to concern themselves with applying for public housing.  The 1^st to 3^rd Defendants did rely on the 1^st to 3^rd Assurances to reside and continued to reside at the Property, notwithstanding the alleged discords involving HKC in October 2004 and the 1^st Plaintiff in July 2013.  And by residing at the Property, the 1^st to 3^rd Defendants have acted to their detriment, i.e. payment of maintenance to the Mother, not applying for public housing, and incurring costs on repair of water pipe and replacement of metal gate.

55.  Mr Choi, in his submissions, contested that payment of maintenance to the Mother could not be viewed as a detriment, echoing what was stated in HKC’s 2^nd Affirmation.  I disagree. This may be accepted as a detriment in light of the Chan Gordon case cited by Mr Chan.

56.  On the point regarding application for public housing, HKC and Mr Choi both argued that this was a matter of option for the 1^st to 3^rd Defendants.  They could have lodged, and could still lodge, such an application to the relevant authority.  Residing at the Property and making such an application were not mutually exclusive.  I agree that they were not mutually exclusive.  However, whether this could be a detriment is arguable, bearing in mind that the 1^st to 3^rd Defendants could have started the application process 12 years ago but for the 1^st to 3^rd Assurances.  Of course, the 1^st to 3^rd Defendants would have to prove at trial that they were eligible for such application at the material time.

57.  I agree with Mr Choi that the costs incurred for the repair and replacement works were minimal and it is questionable whether they suffice as a detriment.

58.  I also find some force in Mr Choi’s argument that, even assuming the 1^st to 3^rd Assurances were made by the Mother, the 1^st Plaintiff, also being an owner of the Property, had not given the same assurance.  On the other hand, the 1^st Defendant had in her affirmation suggested that the 1^st Plaintiff had knowledge of the 1^st to 3^rd Assurances and had even referred to the same when requesting the 1^st Defendant to handle the repair and replacement works.  As the principles showed, the representation element of proprietary estoppel could come in the form of words or conduct.  In the latter, the conduct could be active or passive.  As such, based on the evidence before me at this stage, whether there was any representation from the 1^st Plaintiff is obviously a dispute which could only be resolved after hearing their evidence at trial.  I would also repeat my observation in paragraph 51 above.  The inaction on the part of the 1^st Plaintiff from 2007 to 2017 may also shed light on this issue.  The 1^st Plaintiff should be allowed a chance to explain the same at the trial.

59.  In light of the above, I am of the view that the factual case of the 1^st to 3^rd Defendants do amount to an arguable defence in law.

Other observations

60.  Both parties in their affirmations and submissions have criticised each other’s case with reference to the transcripts of hearings in HCMH 38/2018 and LDPD 264/2017.  I do not wish to cover them in detail in this judgment. Suffice to say that the evidence given by 1^st Plaintiff and 1^st Defendant at the hearings in LDPD 264/2017, and what the 1^st Defendant said at the hearing in HCMH 38/2018, were contradictory to a certain degree to their present cases, and to some extent inherently flawed.  But one has to appreciate that they were not legally represented and could not be expected to be able to formulate their cases within the boundaries of the captioned legal principles and requirements. In addition, the 1^st Defendant’s inability to give a clear reason as to her entitlement to continue residing at the Property during the hearing before Fung J is also not as damaging as what the 1^st and 2^nd Plaintiffs are trying to suggest, given that she had already given her reasons in LDPD 264/2017.  Of course, the criticisms based on the transcripts could be used by the parties to undermine their opponents case, but that should be reserved for cross-examination at trial.

61.  However, I do have doubts about the 1^st and 2^nd Plaintiffs’ claim, based on the inconsistent versions of events given by the 1^st Plaintiff at the LDPD 264/2017 hearings.  At the very least, it seems that the amended statement of claim has failed to set out the full picture as revealed in those hearings, for example that there was a tenancy agreement between the Mother and the 1^st Defendant since 2004.  This could be important in light of the 1^st Plaintiff’s evidence in LDPD 264/2017 that the tenancy agreement with the 1^st Defendant ended only on 31 December 2016, after expiration of the notice of termination sent on 26 January 2016.[25]  This would then go to the question of whether the 1^st and 2^nd Plaintiffs should be claiming for arrears of rent from June 2007 to 31 December 2016, instead of damages for trespass or mesne profits during the same period as claimed in the amended statement of claim.  These matters require clarification and should be ventilated at trial, and in the circumstances, unconditional leave to defend would usually be granted.[26]

CONCLUSION

62.  For the above reasons, I find that the 1^st to 3^rd Defendants have shown triable defences to the 1^st and 2^nd Plaintiffs’ claim.  They should be granted leave to defend this case.  Their defences are not shadowy to warrant any condition to be imposed for such leave to be granted.  I would also repeat my views in paragraph 61 above and say that unconditional leave to defend should be given for that reason as well.  However, I would not go as far as to say that the Summons should be dismissed, as submitted by Mr Chan.  Up and until Mr Chan’s written submission, as admitted by Mr Choi at the hearing, the 1^st and 2^nd Plaintiffs could only speculate on what defences in law the 1^st to 3^rd Defendants intend to run.  I could not say that the 1^st and 2^nd Plaintiffs must have known well beforehand that there was a triable defence so much so that the Summons should never have been taken out.

63.  I would recap on the orders and consequential case management directions that I had given at the end of the hearing on 22 July 2019:-

(1)  Unconditional leave be granted for the 1^st to 3^rd Defendants to defend this action.

(2)  Costs of the Summons, including the hearings on 26 April 2019 and 22 July 2019, be in the cause.  There be certificate for counsel for the hearing on 22 July 2019.  The 1^st to 3^rd Defendants’ own costs shall be taxed in accordance with the Legal Aid Regulations.

(3)  The 1^st to 3^rd Defendants do file and serve their Defence and Counterclaim (if any) within 28 days from 22 July 2019, i.e. on or before 19 August 2019.

(4)  The 1^st and 2^nd Plaintiffs do file and serve their Reply and Defence to Counterclaim (if any), within 28 days thereafter, i.e. on or before 16 September 2019.

(5)  The parties do file and serve their respective Timetabling Questionnaire within 28 days thereafter, i.e. on or before 14 October 2019.

(6)  The 1^st and 2^nd Plaintiffs do take out case management summons within 14 days thereafter, i.e. on or before 28 October 2019.

64.  Lastly, I thank Mr Choi and Mr Chan for their assistance.