YUEN KAM LOK EDDY v. YUEN LAI FUN CINDY AND ANOTHER

DCCJ 3972/2020

[2021] HKDC 1632

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3972 OF 2020

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DECISION

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THE APPLICATION

1.  By virtue of a summons filed on 14 January 2021 (“the Summons”), the plaintiff applies for summary judgment and alternatively interim payment and interlocutory injunction against the defendants.

UNDISPUTED FACTS

2.  The following background is undisputed:

(a)  Yuen Tak Kuen (“the late Father”) and Lee Lai Fong (“the Mother”) had 4 children:

(i)  The eldest child – the plaintiff;

(ii)  The 2^nd child – Rendy Yuen (“Rendy”);

(iii)  The 3^rd child – Simon Yuen (“Simon”);

(iv)  The youngest child – the 1^st defendant;

(b)  The 2^nd defendant is the 1^st defendant’s daughter, hence she is the plaintiff’s niece;

(c)  In 1981, the late Father, as a retired police officer, was allocated a public rental housing unit in Sha Kok Estate (“the PRH Unit”), and became a registered tenant thereof;

(d)  In 1984, upon the passing of the late Father, the Mother became the registered tenant of the PRH Unit;

(e)  In 1989, the 1^st defendant moved out of the PRH Unit and had never moved back;

(f)  In September 1999, Rendy moved out of the PRH Unit together with his wife and children.  Since then, the Mother became the sole occupant of the PRH Unit until the time when she also moved out subsequently;

(g)  In around late 2005, the 1^st defendant was living in a rented flat in Tai Hang as a single-parent with the 2^nd defendant.  The 1^st defendant was in financial difficulty at the time;

(h)  The subject property is a flat located in Tung Lo Wan Road (“the Subject Property”) which the plaintiff acquired in his own name on 15 November 2005;

(i)  In early 2006, the plaintiff agreed to let the 1^st and 2^nd defendants reside in the Subject Property rent-free to alleviate their financial difficulties;

(j)  By his solicitors’ letter dated 2 July 2020, the plaintiff demanded the defendants to vacate the Subject Property by 2 August 2020, which the defendants failed to do so.

THE PLAINTIFF’S CASE

3.  The plaintiff’s case is simple and straight-forward.  It is alleged that the defendants had all along been occupying the Subject Property as licencees at will, and such licence had been revoked by virtue of the said letter issued by the plaintiff’s solicitors on 2 July 2020.  The plaintiff therefore submitted that the defendants were no longer entitled to stay in the Subject Property upon the termination of the licence on 2 August 2020.

THE DEFENDANTS’ CASE

4.  The defendants alleged that the plaintiff and/or the Mother (for and on behalf of the plaintiff) represented to and assured the 1^st defendant that the defendants could live in the Subject Property rent-free for their lives, and/or that the plaintiff would not evict the defendants from the Subject Property for their lives.  Relying on such representation or assurance, the 1^st defendant had acted to her detriment.  The following particulars were pleaded in paragraph 5(2) of the Defence and Counterclaim:

(a)  In about early 2006, the 1^st defendant signed on a form provided by the plaintiff, and deleted her name from the list of family members on the tenancy agreement of the PRH Unit.

(b)  The 1^st defendant gave up her right to reside in the PRH Unit, which she would have been entitled to reside for life at nominal rent and to become the tenant therefor after the Mother and Mr. Simon Yuen passed away and/or deleted their names from the tenancy agreement of the PRH Unit.

(c)  The 1^st defendant gave up her right to make use of her status as a family member on the tenancy agreement of the PRH Unit to apply separately for another public rental housing unit as the residence of the 1^st and 2^nd defendants.

(d)  The 1^st and 2^nd defendants gave up their rights to surrender the PRH Unit (or other public rental housing unit to be allocated by the Housing Authority) to purchase a Home Ownership Scheme flat using the Green Form.

(e)  With the 2^nd defendant commencing employment, the household income of the 1^st and 2^nd defendants exceeds the eligibility criteria imposed by the Housing Authority.  The 1^st and 2^nd defendants are no longer eligible to apply for a public rental housing unit or to purchase a Home Ownership Scheme flat using the Green Form.

(f)  By reason of the matters stated in Paragraphs (a)-(e) above, the 1^st and 2^nd defendants were pushed off the “property owning ladder”, and thereby were deprived of the opportunity of trying to better themselves.

(g)  In about early 2006, the Mother was living alone in Aberdeen, and she often had accidents without someone taking care of her.  After the Mother moved into the Subject Property, the 1^st and 2^nd defendants took care of the Mother both financially and physically.  In about 2014, when the Mother was 85 years old, she found difficulty in taking care of herself and thus had 2 accidents due to her old age.  Upon the request of the Mother, the plaintiff agreed to hire a foreign domestic helper solely for the purpose of taking care of the daily well-being of the Mother and cooking meals for her only.  The plaintiff was responsible for the salary of the foreign domestic helper and the food expenses of the Mother and foreign domestic helper.  Even after the hiring of the foreign domestic helper, save as stated in Paragraph 5(2)(h) below, the 1^st and/or 2^nd defendants paid all the management fees, water, electricity, gas, other household expenses (including the Mother and foreign domestic helper’s) and other utilities expenses of the Subject Property.

(h)  Insofar as the defendants recall, the 1^st and/or 2^nd defendants paid all the management fees, water, electricity, gas, other household expenses and other utilities expenses of the Subject Property whenever such bills were sent to the address of the Subject Property.  However, in about 2016/2017, the plaintiff caused some of the bills to be sent to another address.  The 1^st and 2^nd defendants were unable to pay those bills.

(i)  From time to time, the 1^st and 2^nd defendants purchased new furniture and household appliances for use in the Subject Property.

5.  The circumstances under which the alleged assurances were made were pleaded in paragraphs 5(1)(f) to (i) of the Defence and Counterclaim:

“(f) In about early 2006, after the Subject Property was renovated and furnished, the 1^st and 2^nd defendants moved into and resided in the Subject Property first with the Mother moving in and resided there together with the 1^st and 2^nd defendants 3 to 4 months thereafter.

(g) At about the same time, the plaintiff and the Mother repeatedly requested the 1^st defendant to immediately delete her name from the list of family members on the tenancy agreement of the PRH Unit. The plaintiff and the Mother explained that after the 1^st defendant deleted her name, Mr. Simon Yuen would surrender the PRH Unit to the Housing Authority so that Mr Simon Yuen could purchase a Home Ownership Scheme flat using the Green Form.

(h) On one occasion, the plaintiff called the 1^st defendant, and repeated the said request. The plaintiff told the 1^st defendant that the 1^st and 2^nd defendants could live in the Subject Property on rent-free basis for their lives, and the plaintiff would not evict the 1^st and 2^nd defendants from the Subject Property for their lives. The plaintiff further assured the 1^st defendant that since the 1^st and 2^nd defendants could live in the Subject Property rent-free basis for their lives, the PRH Unit was of no use to the 1^st defendant.

(i) The 1^st defendant was closed (sic) to the Mother.  The 1^st defendant expressed her concern to the Mother that the 1^st and 2^nd defendants would have no place to live if the 1^st defendant acceded to their request and the plaintiff changed his mind to evict the 1^st and 2^nd defendants from the Subject Property.  In reply, the Mother assured the 1^st defendant that the plaintiff would not do so and would take care of the 1^st defendant for her life.”

6.  The above pleaded case is supported by the 1^st defendant’s Affirmation.  As a matter of background, the 1^st defendant admitted that she was in great financial difficulty at the material time.  This is what she stated:

“21. In about late 2005, [the 2^nd defendant] was about 10 years old. I was in constant financial difficulties, and could barely afford the rent, living expenses and [the 2^nd defendant’s] tuition fees. In family gatherings, I shared with my family about my financial circumstances and my worry that the landlord might increase rent.”

7.  She then alleged that the plaintiff subsequently asked her to look at various residential properties with him.  Sometimes his wife also went along.  She then explained:

“25. In about late 2005 or early 2006, after a family gathering, [the plaintiff] and his wife asked me to go to the Subject Property with them. When we arrived there, I saw that the Subject Property was undergoing renovation. [The plaintiff] told me that:

(1) He had acquired the Subject Property for [the 2^nd defendant] and I to live for our lives. [The 2^nd defendant] and I were not required to pay any rent;

(2) The Subject Property had 3 bedrooms. [The 2^nd defendant] and I could each occupy one bedroom. [The plaintiff] then showed me our rooms; and

(3) [The plaintiff] asked me to work hard and take good care of [the 2^nd defendant]. [The plaintiff] also said that I did not need to worry about [the 2^nd defendant] and I having no place to live or could not afford paying rent.

26. I was grateful to [the plaintiff]’s help, and I wholeheartedly thanked him. During the said visit, [the plaintiff] never said that he could (or would) evict us at any time he wished.

27. I could not remember when, but at some point, [the plaintiff] told me that [the 2^nd defendant] and I had to pay the management fees and utilities expenses of the Subject Property which I agreed.

28.  […]

29. In about early 2006, after the Subject Property was renovated and furnished, [the 2^nd defendant] and I moved into and resided in the Subject Property. About 3 to 4 months later, My Mother also moved in and lived there with us.

30. At about the same time, [the plaintiff] and My Mother repeatedly requested me to immediately delete my name from the PRH Unit. [The plaintiff] and My Mother explained that after I deleted my name, [Simon] would surrender the PRH Unit to the Housing Authority so that he could purchase a HOS flat using the Green Form. Despite their repeated requests, I refused to comply, as this would mean that I would lose my right to live in the PRH Unit forever.

31. On one occasion, [the plaintiff] called me, and repeated the said request. I told him that I did not want to delete my name, because if [the plaintiff] suddenly changed his mind and evicted us, [the 2^nd defendant] and I could still move back to live in the PRH Unit. In reply, [the plaintiff] said that I was very naïve. He had already purchased the Subject Property in Tai Hang, close to my place of work, and had already furnished the Subject Property according to our needs. As a result, [the 2^nd defendant] and I no longer needed to worry about moving home, or increase of rent. [The plaintiff] assured me that [the 2^nd defendant] and I could live in the Subject Property on rent-free basis for our lives, and he would not evict us from the Subject Properties (sic) for our lives. He told me that since [the 2^nd defendant] and I could live in the Subject Property for our lives, the PRH Unit was of no use to me. At the end, [the plaintiff] requested me to immediately delete my name, or otherwise My Mother would be unhappy about it.

32. I was close to My Mother. I expressed my concern to My Mother that [the 2^nd defendant] and I would have no place to live if I acceded to their request but [the plaintiff] changed his mind to evict us from the Subject Property in the future. In reply, My Mother assured me that [the plaintiff] would not do so and would take care of me for my life.

33.  Relying on [the plaintiff] and My Mother’s repeated assurances, I acceded to the request and deleted my name from the list of authorised family members on the tenancy agreement of the PRH Unit.”

8.  With the above background, the 1^st defendant described the detriments which she and the 2^nd defendant suffered in the following ways under Section C.5 of her Affirmation:

“54. I have already mentioned above about how we took care of My Mother, as well as how we paid for the household and living expenses throughout the year. In this Section, I will elaborate on the detriment suffered by us as a result of deleting my name from the PRH Unit upon [the plaintiff’s] requests.

55. In doing so in late 2005 or early 2006, I have given up my right to reside in the PRH Unit, which I would have been entitled to reside for life at nominal rent and to become the tenant after the previous tenant passed away and/or moved away from the PRH Unit.[…] However, after I deleted my name, the Housing Authority would not allow my name to be reinstated.[…]

56. I have also given up my right to make use of my status as an authorized family member on the tenancy agreement of the PRH Unit to apply separately for another public rental housing unit as the residence of [the 2^nd defendant] and me […]

57. Further, [the 2^nd defendant] and I have given up our rights to surrender the PRH Unit (or other public rental housing unit to be allocated by the Housing Authority) to purchase a HOS flat using the Green Form […]  On hindsight, if I had not deleted my name from the PRH Unit, [the 2^nd defendant] and I would have purchased a HOS flat using the Green Form […]”

9.  On the basis of the aforesaid, it is alleged, among other things, that the plaintiff is estopped from denying the defendants’ right to live in the Subject Property on rent-free basis for their lives.

THE LEGAL PRINCIPLES

Summary judgment

10.  In Li Chuen Kwai v. Po Lam Construction Development Limited (HCA 2376/2013, unreported, 24 September 2014), it was held that:

“11. As far as the plaintiff’s claim is concerned:

(1) An application for summary judgment must be supported by an affidavit verifying the facts on which the claim is based [Order 14, rule 2(1), Rules of the High Court].

(2) The Statement of Claim must be good and complete in itself; any defect or omission in the Statement of Claim cannot be corrected or supplemented by the plaintiff’s affidavit. If the defect is one of substance, the application for summary judgment will be dismissed [see: Hong Kong Civil Procedure 2014 at Practice Note 14/1/5].

(3) This means that an Order 14 application has to proceed on the case as pleaded, and it is those facts (as pleaded) which have to be verified on affidavit.

(4) Where the assertions in the plaintiff’s affirmation constitute a material deviation from the plaintiff’s pleaded case, the plaintiff will have failed to verify his claim as pleaded, and summary judgment should not be granted [Lin Jan v Long Xiaobo, HCA 1516/2012 (Judgment dated 4/09/2013)].

(5) Equally, summary judgment will not be granted where the plaintiff’s affidavit evidence is materially different from and inherently inconsistent with his/her case in the Statement of Claim [see: Sin Yuk Hung v Sin Tung San, HCA 474/2013 (Judgment dated 18/12/2013)].

12.  As far as the defendant’s defence is concerned:

(1)  The defendant shoulders the burden to satisfy the court that he has a real or bona fide defence (ie that there are triable issues), or that there ought for some reason to be a trial of the plaintiff’s claim.

(2)  However, a complete defence need not be shown.  The defence set up need only show that there is a triable issue or question or that for some other reason there ought to be a trial; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact.

(3)  Although the mere assertion in an affidavit does not, ipso facto, provide leave to defend, the court will not embark upon a mini‑trial of the action on paper and leave to defend will be granted unless the defence raised is so incredible or so contradicted by contemporaneous documents or circumstances that it becomes clear that the defence is a sham.

(4)  The test is not whether the defendant’s assertions are to be believed, rather it is whether those assertions are believable, ie capable of being believed.  If so, the defendant must have leave to defend.

(5)  Whether the defendant’s assertions are believable is a question that should be answered not by taking those assertions in isolation bur rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute.”

11.  InJu Yan Di Emproidery Genesisy v Yau Wai Han [2015] 1 HKLRD 822, 827, Cheung JA held that:

“14. It is well-established that the burden on the defendant in a summary judgment application is to show that he has a credible defence and he must condescend to give particulars of his defence. However, this does not mean that once the plaintiff invokes the application and irrespective of the strength of his case, the defendant bears all the burden of showing that there are triable issues in the case. This is because the starting point in a summary judgment application is that it should only be invoked when there is no defence to the claim. This means that the plaintiff must in the first place demonstrate that the defendant has indeed no defence. This requirement is further recognised in the procedural rules which mandate the plaintiff to state his belief in the verifying affidavit that there is no defence to the claim. This requirement must be kept in proper perspective when assessment is made of the strength of the application, otherwise there is a danger that the attention will be focused solely on what the defendant has said without consideration at the same time of the basic premise of the plaintiff’s claim or its inherent strength and weakness…” (Emphasis added)

12.  In Time Rich 08 Limited v DBE (HK) Limited & Others [2018] HKCA 404, it was held by the Court of Appeal that:

“…in deciding whether a plaintiff is entitled to summary judgment the relevant test is whether the defendant has raised credible triable issues. If there are, the matter should go to trial. If not, judgment should be entered against the defendants. In considering whether there are triable issues, the Court will not take the defence on its face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite opportunity being given to the defendant to respond earlier. The Court will also consider the inherent probability of the defence but what the Court should not do is to conduct a mini-trial on complicated factual issues : Paul Y Management Ltd v Eternal Unity Development Ltd (CACV 16/2008)” (at paragraph 5.2) (emphasis added)

13.  To raise a triable issue or arguable defence, the defendant cannot be sparing of the particulars of his defence, and then claim, as a result of his own parsimony in details. that there is an obscurity which must await trial for illumination.^[1]

Proprietary estoppel

14.  The defendants’ counsel have referred this court to the case of Shun Pong Limited v Chan Koo Kai Felix and Another [2018] HKCFI 2628 for the well-established legal principles on promissory estoppel and proprietary estoppel as follows:

“52. Proprietary estoppel The essential elements of proprietary estoppel are as follows: (a) where the owner of land induces, encourages or allows the claimant to believe that he has or will enjoy some rights or benefit over the owner’s property, (b) in reliance of this belief the claimant acts to his detriment to the knowledge of the owner, and (c) the owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive. This equity gives the claimant the right to go to court to seek relief. The claimant’s claim is an equitable one and subject to the normal principles governing equitable remedies. The court has a wide discretion as to the manner in which it will satisfy the equity in order to avoid an unconscionable result having regard to all the circumstances of the case, including but not limited to the expectations and the conduct of the parties.

53. In Li Yuk Ying v Wong Yuet Kam, Anthony To J said as follows:

‘13. The question whether there was representation or assurance, reliance and detriment in the context of the doctrine of proprietary estoppel are questions of fact. …… That issue has to be determined on the facts of the particular case. The authorities show that detriment is not a narrow or technical concept. It need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial …… Very often, the quality of the relevant representation may influence the issue of reliance, and reliance and detriment are often intertwined. The fundamental principle behind the doctrine of proprietary estoppel is that equity is concerned to prevent unconscionable conduct permeating all three elements of the doctrine. The requirement of detriment must therefore be approached as part of a broad inquiry as to whether in all the circumstances it is unconscionable to allow a party to repudiate his representation upon which the other party have acted. ……’ (my emphasis)

54. Promissory estoppel A promissory estoppel may be said to arise where (a) the parties are in a relationship involving enforceable or exercisable rights, duties or powers, (b) 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 (c) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.

55. Unconscionability To establish an equity under the estoppels there must be an underpinning element of unconscionability. A claimant has to establish that it is unconscionable for the promisor or owner of the land to act in such a way as to defeat the expectation that the promisee or claimant has been encouraged to believe that he had. Indeed, the requirement of unconscionability is now regarded as an essential element of any form of estoppel. A relevant factor for determining whether the promisor’s or owner’s conduct has been unconscionable is whether the detriment is sufficiently substantial, and this is to be tested by whether it will be unjust or inequitable to allow the assurance to be disregarded. Further, this is to be considered as at the time at which the promisor or owner (ie the person who has given the assurance) seeks to go back on it. The above matters have to be approached as part of a broad inquiry as to whether it is unconscionable in all the circumstances for the promisor or owner to resile from the promise or assurance, and in approaching such broad inquiry the judge has to stand back and look at the matter in the round.

56. Although the doctrine of estoppels is a developing area of the law, there is opinion inkling towards the view that there is no real difference between proprietary estoppel and promissory estoppel.  Indeed, for present purpose, the relevant constituents of these two forms of estoppels are shared.”

SUMMARY JUDGMENT – ANALYSIS

The proposed triable issues

15.  The defendants’ counsel do not dispute that the defendants have the burden to show that there are triable issue(s) or that there are other reasons for the matter to go to trial.

16.  I have already set out the defence case at length in the earlier part of this Decision.  Relying on those matters, it was submitted on behalf of the defendants that there are the following triable issues in the present case which make it inappropriate for summary judgment to be granted:

(1)  What was the exact promise made by the plaintiff?

(2)  Who were the tenant and authorised family members of the PRH Unit, and for which period of time?

(3)  Was Simon ineligible to purchase a HOS flat using the Green Form?

(4)  What was the 1^st defendant’s entitlement in the PRH Unit?

(5)  Did the Mother have the plaintiff’s authority when she made the assurances on behalf of the plaintiff?

(6)  What was the extent of detriment and countervailing benefits?

No arguable defence

17.  In my view, the above are not issues which have to be tried in a trial because the “detriments” allegedly suffered by the 1^st defendant are not something which the court would accept as “detriment” for the purpose of establishing proprietary estoppel.  In other words, the defendants’ case on proprietary estoppel is bound to fail anyway.

18.  For the sake of clarity, I quote the submissions of the defendants’ counsel on the “detriments” allegedly suffered as follows:

“(1) D1 deleted her name from the tenancy of the PRH Unit. As a result, she gave up her right (a) to reside at the PRH Unit (b) to make use of her status as a family member listed on the tenancy to apply for a separate PRH unit, and (c) to purchase an HOS flat using the Green Form. Ds are no longer eligible to apply for a PRH unit and thus are pushed off the ‘property owning ladder’. Not applying for public housing (Ho Kwok Ho & Anor v Ho Wai Chu & Ors [2019] HKDC 994, §54), forgoing the opportunity to purchase a HOS flat (Shun Pong Limited, §87), and stepping off the ‘property owning ladder’ (Gray & Gray, Elements of Land Law, 5^th ed., §9.2.67) could constitute substantial detriments.

(2) D1 paid for the management fees and other household and utilities expenses of the Subject Property. D1 also purchased new household furniture and appliances for use in the Subject Property. Payment of management fees (Szeto Chak Mei v Chan Lam Shan & Or HCMP 836/2012 (unreported, 23 April 2013, Mimmie Chan J), §6), and improvement to land (Au Yeung Shun Mei & Anor v Jan Fung & Ors [2021] HKCFI 1432, §37) could constitute substantial detriments.

(3)  Upon and by reason of the Assurances, D1 took care of the Mother physically and financially for 15 years after the Mother began living with Ds together in the Subject Property in 2006.  Payment of monthly maintenance of HK$5,000 a month (Ho Kwok Ho, §§18, 54) and performance of ‘all the functions of a live-in carer’ (Jennings, §51) (Gray & Gray, §§9.2.67, 9.2.69) could constitute substantial detriments.”

19.  These “detriments” will be discussed in turn below.

Housing Rights as a family member

20.  The 1^st defendant claimed that by agreeing to have her name deleted from the list of family members in the tenancy agreement of the PRH Unit, she has lost certain rights which she would otherwise be entitled to, namely, (a) to reside at the PRH Unit (b) to make use of her status as a family member listed on the tenancy to apply for a separate PRH unit, and (c) to purchase an HOS flat using the Green Form. 

21.  In this regard, the defendants’ counsel argued in their written submissions that:

“39. Whether and to what extent D1 is prejudiced by these detriments are disputed by P. One particular matter raised by P is that D1 was not entitled to reside at the PRH Unit, because she should have had her name deleted after D1 moved out in 1989. However, the Housing Authority’s public documents suggest that a person who no longer resides at a PRH Unit are not necessarily removed from the tenancy. Even if the Housing Authority served a Notice to Quit, there was an appeal procedure available. At this stage, without any evidence from the Housing Authority on its practice from 1989 to 2005/2006, it cannot be said for certain that the Housing Authority must have deleted D1’s name if it had known that D1 moved out in 1989. Whether the Housing Authority would accept D1’s reason for moving out (or would allow D1 to resume residing at the PRH Unit after sending an inquiry letter to her) is subject to further discovery and an issue for trial.

40. Similarly, it is never the Court’s role in summary judgment proceeding to decide whether the alleged D1’s misconduct is an abuse of public housing policy, so as to bar any equitable relief as alleged. The Court must examine all the relevant facts and factors to see if the misconduct of the claimant is sufficient to warrant a refusal of the relief sought (Snell’s Equity, 34^th Ed., §5-010). This assessment cannot be done without a full examination of the history of the Yuen’s family dealings with the PRH Unit and clarification of the Government’s PRH/HOS policy.”[2]

22.  Paragraph 39 of the defendants’ written submissions quoted above referred to paragraph 79 of the 1^st defendant’s Affirmation which reads:

“Fourthly, even if an authorized member moves out of a public rental housing unit, he/she is not deleted from the tenancy agreement automatically. It seems to be the practice of the Housing Authority that if an authorized member has not been living in the unit for a long time for no particular reason, a letter will be sent to him/her indicating that because of his/her long absence, he/her name will have to be deleted. Then, if the absentee fails to respond after a reasonable period of time, the tenant will be invited to complete the deletion formalities (See: Section ‘Deletion of Family Members” of YLFC-12). As far as I know, after the receipt of the said letter, so long as the absentee replied and declared that he/she would move back to the unit, the Housing Authority would generally allow the absentee to continue to reside at the unit. In the present case, up till I deleted my name in late 2005 or early 2006, I had not received the said letter. In any event, without any evidence from the Housing Authority, no one can say for certain whether my circumstances fell under the scenario above, and if I responded the said letter, whether the Housing Authority would allow me to continue to reside at the PRH Unit.”

23.  In considering the defendants’ argument, it must be borne in mind that it is undisputed that the 1^st defendant had moved out of the PRH Unit in as early as 1989 and had never moved back.  In other words, she had moved out for around 16 – 17 years already when she allegedly applied to delete her name from the family member list in around 2006.

24.  It is also the 1^st defendant’s evidence that:

“[…] My 2^nd Elder Brother’s family moved out of the PRH Unit in late 1990s, and My Mother also moved out of the PRH Unit since then. The PRH Unit was left vacant for more than 5 years until 2005 […]”[3]

25.  Chapter 6 of Section B of the Information Booklet on General Housing Policies published by the Housing Authority which was produced by the 1^st defendant provides, among other things, that:

“According to the Tenancy Agreement (TA) signed between the Hong Kong Housing Authority (HA) and the public rental housing (PRH) tenant, tenant and family members listed in the TA should take up the tenancy within one month after the commencement of the tenancy and retain regular and continuous residence in the leased premises. ‘Regular and continuous’ should be construed in accordance with its ordinary meaning and reasonableness is the crucial yardstick in judging cases. HA should be notified immediately of any alternation in the family caused by births, deaths or otherwise.

Any family member who wishes to delete his/her own name voluntarily from a PRH tenancy may do so by making a written request. If his/her departure is proven (by supporting document, through flat inspections, or otherwise), the tenant will be invited to complete the deletion formalities and present his/her copy of TA for amendment.

If a family member has not been living in the PRH flat for a long time for no particular reason, a letter will be sent to him/her indicating that because of his/her long absence, his/her name will have to be deleted. If the absentee fails to respond after a reasonable period (normally one month), the tenant will be invited to complete the deletion formalities and present his/her copy of TA for amendment. Reinstatement of the deleted members is generally not permitted.

Any amendment to the list of the family members in a TA requires tenant’s consent. If the tenant is not cooperative, HA will leave the TA intact without amendment and effect the deletion by updating internal records. Letter will be issued to inform tenant of the action taken and advise him/her to complete the deletion formalities early.

To safeguard rational allocation of PRH resources, if a PRH flat becomes under-occupied after deletion of household members, the household will become under-occupation (UO) household and has to move to a PRH flat of suitable size which HA considers appropriate for the family.  […]”

26.  Based on the above evidence, I reject the defendants’ argument:

(1)  It is the 1^st defendant’s own admitted fact that she had purchased her own property in 1989, and as a result she moved away from the PRH Unit and lived in her own property.  She did not delete her name from the PRH Unit “because [she] could move back to the PRH Unit when necessary”[4]. It is clear that there was a breach of the policy of the Housing Authority in that the 1^st defendant had failed to inform the Housing Authority about her departure accordingly.  I agree with the plaintiff’s submissions that, as of 2005, the 1^st defendant’s name should have long been deleted from the family member list in the tenancy agreement of the PRH Unit.  In fact, the Mother should have surrendered the PRH Unit long time ago and should not have left the PRH Unit vacant for more than 5 years as admitted by the 1^st defendant;

(2)  The defendants’ assertion that “a person who no longer resides at a PRH Unit are not necessarily removed from the tenancy” is not understood.  The policy which I quoted above clearly shows that even if the tenant is uncooperative and refuses to produce his/her tenancy agreement for amendment, the Housing Authority would still revise its internal record;

(3)  The objective (and undisputed) fact is that in all those years after 1989 and before any alleged assurances were made, the 1^st and 2^nd defendants had not been residing in the PRH Unit at all.  It is futile for the defendants to talk about whether the 1^st defendant would be able to have her name kept in the list of family members even if it was discovered that she was no longer living in the PRH Unit – That is not the point at all.  As aforesaid, it is clearly a breach for the 1^st defendant’s name to remain in the family member list after such a long time.  If the 1^st defendant alleges that it is not a breach, it is for her to satisfy the court why it is not so.  It is not enough for her to raise possibilities on how she could drag on the matter (e.g. by using the appeal procedure of the Housing Authority);

(4)  Given the 1^st defendant’s own admission, I have no hesitation in concluding that she would be abusing the public housing policy if she were allowed to enjoy the alleged housing rights in 2005 which she said she had lost.  For this purpose, I do not think there is any need to further examine the history of the Yuen family’s dealings with the PRH Unit.  Neither do I think there is any need for clarification of the Government’s PRH/HOS policy.

27.  Put it in another way, by relying on the purported detriments, the 1^st defendant is effectively complaining that she has lost the chance to abuse the PRH/Home Ownership Scheme system.  I agree with the plaintiff’s counsel that “[T]o accept the Housing Detriment as a valid ‘detriment’ for the purpose of proprietary estoppel will create unconscionability which is against the very essence of such equitable principle”[5].

Household expenses

28.  The 1^st defendant alleged that she had paid management fees and other household and utilities expenses of the Subject Property.  She also stated that she had purchased new household furniture and appliances for use in the Subject Property.  She estimated that she had spent around $50,000.  It was submitted on her behalf that these amount to substantial detriments.

29.  I do not agree. 

30.  The management fees, utilities and other household expenses were regular expenses of running the 1^st defendant’s own household. 

31.  Furthermore, the 1^st defendant has not given any details on how much she had spent on those items.  As aforesaid, to show to the court that she has an arguable defence, she has to “condescend upon particulars”.  If she has failed to do so, I can only assume that the amount spent must be insubstantial when compared to the value of the Subject Property, which has been assessed by a surveyor to have a monthly market rent of $24,000.

32.  The 1^st defendant also stated that she had spent $50,000 on furniture and appliances for use in the Subject Property.  Apart from the fact that those items were for her own enjoyment, it must not be forgotten that she had lived in the Subject Property for around 15 years.  The amount of $50,000 cannot be viewed as “substantial” by any standard.

33.  The defendants’ counsel cited Szeto Chak Mei, the sole administratrix of the unadministered properties of the late Szeto Chiu, deceased v Chan Lam Shan & Others (HCMP 836/2012, unreported, 23 April 2013, at §6) in support of their argument that the payment of management fees could constitute substantial detriment.  I agree with Mr Chan for the plaintiff that that is not what the court held in that case, in which it was only held that the payment of management fees was evidence of the representee’s reliance on the assurance.

34.  The defendants also relied on Au Yeung Shun Mei & Another v Jan Fung & Others [2021] HKCFI 1432, at §37 and submitted that improvement to land could constitute substantial detriments. This case is plainly distinguishable because it is not the defendants’ case that they had paid for any renovation of the Subject Property.  Those expenses were admittedly paid by the plaintiff instead.

Taking care of Mother

35.  At the beginning of this Decision, I have already quoted paragraph 5(2)(g) of the Defence and Counterclaim in which the defendants pleaded the alleged “detriment” in taking care of the Mother physically and financially.

36.  The same content was repeated in paragraphs 35 and 36 of the 1^st defendant’s Affirmation.

37.  I do not accept that the fact that “the 1^st defendant having taking care of the Mother physically and financially for 15 years after the Mother began living with the defendants together in the Subject Property in 2006” may amount to substantial detriment as alleged:

(1)  First of all, what the 1^st defendant did was apparently just part of what a daughter of ordinary decency would do to her mother, particularly when it had all along been emphasied by the 1^st defendant that she had been close to the Mother.  It cannot amount to substantial detriment.

(2)  Insofar as the alleged financial support is concerned, apart from the payment of household expenses, there were no particulars on what further maintenance she had paid the Mother. I would not accept the 1^st defendant’s bare and unparticularised assertion that she had taken care of the Mother financially.

(3)  In relation to the payment of household expenses, as I have found above, it does not amount to substantial detriment, particularly when she and her daughter were living in the Subject Property at the same time.

(4)  The defendants’ reliance on the cases of Ho Kwok Ho, Anthony Clifford Jennings v Arthur Thomas Rice & Others and Gray & Gray is misconceived for the following reasons:

(i)  the amount of maintenance allegedly provided by the 1^st defendant was not particularised;

(ii)  it is admitted by the 1^st defendant that the plaintiff had employed a foreign domestic helper to take care of the Mother.

Conclusion on liability

38.  For the above reasons, I take the view that the defendants’ case on proprietary estoppel is bound to fail. 

39.  It is true that the defendants have suggested that there are a lot of factual issues which are required to be resolved at the trial.  However, my conclusion reached above does not depend on any finding of facts on those issues.  Such a conclusion is arrived at in reliance of the 1^st defendant’s own evidence and the policy of the Housing Authority produced by the 1^st defendant.

40.  The defendants also suggested that summary judgment should not be granted because they have not been able to reach the Mother for the purpose of getting evidence from her.  This is not a valid objection against summary judgment, because my ruling above does not depend on the evidence of the Mother at all.

41.  I would therefore enter judgment in favour of the plaintiff for possession of the Subject Property.

42.  I agree with Mr Chan for the plaintiff that the defendants’ counterclaim adds nothing to the case at all because what the defendants are claiming is just declaration on estoppel.  Now that judgment is entered for possession of the Subject Property, such counterclaim should also be dismissed.

Mesne profits

43.  The plaintiff claims mesne profits at the rate of $24,000 per month from 3 August 2020 until delivery of possession of the Subject Property.  Unlike cases where the amount of mesne profits is taken from the amount of rent stipulated under a tenancy agreement, there is no agreed amount of rent as such herein.  The amount of $24,000 is instead supported by a surveyor’s report dated 7 September 2020 prepared by Centaline as the monthly market rent of the Subject Property.

44.  In the case of Philipp Doodt & Others v Huang Shihua & Others [2021] HKCFI 305, Coleman J held in paragraph 21 thereof that:

“[…], in an action for unliquidated damages, if the liability of the defendant is clearly established, including where the defendant does not satisfy its burden in the face of the summary judgment application, the court should give judgment for the plaintiff on liability with damages to be assessed.”

45.  A similar approach had been adopted by HH Judge Lok (as his Lordship then was) in Sam Nickolas David Hing Cheong v Lowe Edwin Ryan (DCCJ 4846/2009, unreported, 22 September 2010) in which it was held that:

“49. It is trite law that if the claim of a plaintiff is the form of a liquidated demand, i.e. a specific sum of money due and payable under or by virtue of a contract, then the court should, in the case of a successful O.14 application, grant final judgment in favour of the plaintiff for the fixed sum claimed. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be specified or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a “debt or liquidated demand”, but constitutes “damages” (see: Hong Kong White Book 2010, vol. 1, para. 6/2/4). In the latter case, the court should grant interlocutory judgment for damages to be assessed.”

46.  I take the view that the claim of $24,000 requires investigation beyond mere calculation.

47.  Therefore, I hold that it is more appropriate for the court to make an order for the mesne profits to be assessed.

THE PLAINTIFF’S ALTERNATIVE APPLICATIONS

Interlocutory injunction

48.  In the light of my conclusion above, there is strictly speaking no need for me to consider the plaintiff’s claim for interlocutory injunction. 

49.  However, I should make it clear that, if I were wrong in granting final judgment for possession in favour of the plaintiff, I would have granted the interlocutory injunction sought by the plaintiff for the following reasons:

(1)  I do not agree that the interlocutory injunction sought by the plaintiff is outside the scope of the relief claimed by the plaintiff in the Statement of Claim.  In my view, the injunctive relief sought must be within the plaintiff’s claim of possession of the Subject Property;

(2)  It has never been the defendants’ case that they are entitled to exclusive possession of the Subject Property.  In other words, even if the defendants’ case is accepted in its entirety, they have no right to deny the plaintiff access to the property;

(3)  It is not a matter of whether there is any need for the plaintiff to use or reside in any part of the Subject Property.  It is his right to do so;

(4)  The 1^st defendant alleged that she was worried about the safety of the 2^nd defendant on the basis that the plaintiff had arranged “his driver, an unknown man and 2 Towngas staff to cut off the gas supply to the Subject Property” on 2 August 2020”[6] and “arranged the management office of Wing Hing Court to cancel the electronic entrance keys of the front door of Wing Hing Court”[7]. The so-called “worry about safety” is in my view exaggerated.  Even if the plaintiff did do the acts as alleged, there is nothing which gives any hint that the plaintiff would harm the 2^nd defendant physically;

(5)  The defendants’ argument that the status quo should be kept must be rejected.  The “status quo” (that the plaintiff does not have access to the Subject Property) was created by the defendants since 3 August 2020 only when they unilaterally changed the door lock;

(6)  The defendants submitted that the fundamental test is where justice lies when the case is pending trial.  In my view, justice clearly requires the court to grant the injunction sought.

Interim payment

50.  Order 29 rule 12(b) of the Rules of the District Court (Cap.336H) provides that:

“If, on the hearing of an application under rule 10, the Court is satisfied—

(a)  […]

(b)  that the plaintiff’s action includes a claim for possession of land and, if the action proceeded to trial, the defendant would be held liable to pay to the plaintiff a sum of money in respect of the defendant’s use and occupation of the land during the pendency of the action, even if a final judgment or order were given or made in favour of the defendant; or

(c)  […]

the Court may, if it thinks fit, and without prejudice to any contentions of the parties as to the nature or character of the sum to be paid by the defendant, order the defendant to make an interim payment of such amount as it thinks just, after taking into account any set-off, cross-claim or counterclaim on which the defendant may be entitled to rely.”

51.  The defendants’ counsel argued that the plaintiff’s application for interim payment is totally unnecessary and viewed objectively is clearly for the ulterior motive to unduly pressurise the financially strained defendants and stifle their lawful defences and counterclaim.

52.  I do not agree.  The plaintiff, being the sole legal and beneficial owner of the Subject Property, is entitled to be compensated in the circumstances where his property is occupied unlawfully by the defendants.  There is nothing wrong for him to insist on his legal rights.

53.  Having said that, I agree that the court has a very wide discretion on the matter.  The court should take all circumstances into account. 

54.  As aforesaid, the plaintiff has produced a surveyor’s report and allege that the monthly market rental of the Subject Property is in the sum of $24,000.  I am of the view that this can be used as the starting point in deciding what should be the level of interim payment to be ordered. 

55.  It is undeniable that the plaintiff is a very rich man, whereas the defendants are much less well-off.  It is alleged that they are only earning a total of $29,000 per month. In these circumstances, the court must be particularly cautious in avoiding any possibility of over-payment on the part of the defendants.  The court should also bear in mind the hardship to the defendants for having to make immediate payment.

56.  Having considered all the circumstances, I am of the view that the appropriate amount of interim payment should be $10,000 per month. 

ORDER

57.  I therefore order that:

(1)  judgment be entered against the defendants for possession of the Subject Property with mesne profits from 3 August 2020 until delivery of possession of the Subject Property to be assessed;

(2)  the defendants’ counterclaim be dismissed;

(3)  interim payment of $10,000 per month be payable by the 1^st and 2^nd defendants to the plaintiff forthwith, and the subsequent payments shall be made on the 1^st day of each calendar month.

COSTS

58.  I make a costs order nisi that the defendants shall bear the plaintiff’s costs of this action (up to the date of this Decision) and of the Summons, including all costs reserved, with certificate for counsel.  The 1^st defendant’s own costs shall be taxed in accordance with the Legal Aid Regulations. 

59.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

60.  The plaintiff’s costs shall be summarily assessed in lieu of taxation.  Unless any application for variation of the aforesaid costs order nisi is made within time, the defendants shall lodge and serve their statement of objection[8] within 7 days after the expiry of the said 14-day period.  Summary assessment of the plaintiff’s costs will be conducted on paper (no matter whether any statement of objection is lodged by the defendants within time) thereafter.  The costs assessed shall be payable by the defendants within 14 days after assessment.