NG JACK FONG v. NG CHAN NING

DCCJ 2830/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2830 OF 2005

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Judgment

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1.  On 3October 2006, I gave summary judgment against the Defendant for delivery up of vacant possession of the premises (“the Premises”) known as Flat C, 14^th Floor, Win Field Garden, Nos 34-40, Shan Kwong Road, Hong Kong.  I also gave interlocutory judgment for damages to be assessed for trespass for the period from 13 May 2004 until vacant possession of the Premises is delivered up by the Defendant.  I further gave an costs order nisi that the costs of the application for summary and interlocutory judgment be to the Plaintiff

2.  My reasons for giving the summary and interlocutory judgment have been set out in my judgment (“the Earlier Judgment”)handed down on 3 October 2006.  For the purpose of this judgment, I will also adopt the abbreviations used in the Earlier Judgment.

3.  This is the Defendant’s application by his Summons (“D’s Summons”) dated 17 October 2006 for leave to appeal to the Court of Appeal against the summary and interlocutory judgment, and to vary the costs order nisi to the extent that the Defendant should only be liable for part of the costs of the summary judgment application.

4.  The summary and interlocutory judgment with the costs order expressed as an absolute one was sealed on 14 October 2006. However, parties should have 14 days from the date of the Earlier Judgment (i.e., until 17 October 2006) to apply to vary the costs order nisi.  Thus, it was premature for the Plaintiff to have the costs order sealed.  At the hearing on 28 November 2006, Mr. Kwan, solicitor acting for the Plaintiff, fairly confirmed that he had no objection to the hearing of the Defendant’s present application to vary the cost order nisi, as he was entitled to make that application.

5.  Further, although the Defendant only initially stated in D’s Summons that he was seeking leave to appeal against the interlocutory judgment in relation to the period of the damages he was held to be liable, at the hearing he confirmed that he would also seek leave to appeal against the summary judgment for delivery up.     Mr. Kwan submitted that, as this ground was not stated in D’s Summons, it was not open to the Defendant to also seek leave to appeal against the summary judgment.  I decided to hear the Defendant’s application, but would give the Plaintiff time to prepare for any submissions in this respect if this was necessary.  This is the reason why there was the second hearing on 4 December 2006, as at the end of the first hearing Mr. Kwan did ask for more time to prepare for further submissions.  At the adjourned hearing on 4 December 2006, Mr. Lee Tung Ming of counsel was instructed to appear on behalf of the Plaintiff to oppose the Defendant’s application.

6.  In these applications, the Defendant’s wife acted as the Defendant’s McKenzie friend to assist him in making submissions at the hearings.  The Plaintiff made no objection to this.

Applicable principle

7.  In considering whether to allow leave to appeal to the Court of Appeal, the Defendant needs to satisfy the Court that the intended appeal has a realistic prospect of success, in the sense that the Defendant has at least an arguable case in the intended appeal:  Ma Bik Yung v. Ko Chuen (unrep., HCMP4303 of 1999, 8 September 1999) per Leong CJHC at paragraph 5, in adopting and approving Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538.

8.  This is accepted by Mr. Lee to be the correct test.

Is there an arguable case in the intended appeal?

Delivery up of vacant possession

9.  The authorities suggest that whether the surviving spouse’s act in disposing of a property (which is subject to the mutual will agreement) amounts to an act calculated to defeat the intention of the mutual agreement could depend on the reason why he wants to dispose of the property in a particular manner.  Thus, in Healey v. Brown, Chancery Division, 25 April 2002, David Donaldson QC said at paragraph 14 as follows:

“I would, in line with the observations of Dixon J, have had little difficulty in concluding that a sale at arm’s length or market price by the survivor, Mr. Brown, to permit personal enjoyment of the proceeds was not precluded by the agreement of the parties.  But ‘gifts and settlements, inter vivos, if calculated to defeat the intention of the compact’ would plainly be in breach of it.  Had Mr. Brown sold the flat and used the proceeds to fund a place in a nursing home, there would have been no basis for complaint.  But to give away the flat to his son – with immediate effect as to a 50% undivided share, and with effect on death as to the remainder by operation of the doctrine of survivorship – could scarcely run more directly and fully counter to the intention of the mutual will compact that the flat would pass to his deceased’s wife niece on his own death.”  (emphasis added)

10.  In the present case, there is no evidence from the Plaintiff as to why he suddenly wanted to evict the Defendant (and his family) from the Premises, when the Defendant has been living there since 1967 with his own family.  Even after the death of the Deceased in 1995, the Defendant has continued to live there for another 10 years before the Plaintiff took out the present action to claim vacant possession of the Premises.   

11.  In light of the total lack of evidence as to why the Plaintiff seeks to evict the Defendant notwithstanding his long standing residence thereat, I am of the view that it is at least arguable that there was a triable issue as to whether the Plaintiff’s conduct of evicting the Defendant amounts to a breach of the mutual will agreement, and that the Plaintiff should be bound by the constructive trust not to do so.  This is particularly so as apparently the Plaintiff has his own residence.  In these circumstances, I believe it is at least arguable that the matter should be explored at trial as to whether, for example, the eviction of the Defendant is part of an intended arrangement (thus calculated) to dispose of the Premises with an intention to defeat the objective of the mutual will agreement, i.e., to give the Premises beneficially to the Defendant upon the Plaintiff’s death.

12.  Mr. Lee however submitted that the lack of evidence to explain why the Plaintiff wanted to evict the Defendant now was neither here nor there, as it was not the Defendant’s own case that the intended eviction was part of a scheme say to give the Premises to the Plaintiff’s other son.  I do not agree.  As the Plaintiff seeks vacant possession of the Premises under the circumstances of a mutual will agreement, it would thus be part of the Court’s consideration as to why he is entitled to do so under the mutual will agreement.  In the circumstances, it is arguable that given that there are unexplained doubts on the plaintiff’s own case, summary judgment should not have been given: Hong Kong Civil Procedure 2006, para 14/4/9, p. 172, citing Billion Silver Development Ltd v. All Wide Investments Ltd [2000] 2 HKC 262. 

13.  For the above reasons, I cannot say that the Defendant does not have at least an arguable case in the intended appeal against the summary judgment.  I therefore grant leave to the Defendant to appeal to the Court of Appeal against the summary judgment for the delivery up of vacant possession of the Premises.

The commencement date of the Defendant’s liability for damages

14.  Given that it is at least arguable that summary judgment should not be given for the delivery up of vacant possession, it must also follow that it is similarly arguable that interlocutory judgment for damages for trespass should not have been given. 

15.  Further, I am also of the view that it is arguable that the 7 days notice period given by the Plaintiff to evict the Defendant is too short in light of all the circumstances set out in paragraph 10 above. Given the long history of the Defendant’s residency in the Premises, it is arguable that there is a triable issue as to what amounts to a reasonable notice in the present case.  In the premises, it is also arguable that, even if the Defendant should give vacant possession to the Plaintiff by reason of the Plaintiff’s revocation of the licence, the Defendant should not be liable for trespass from 13 May 2004 but from a later date.

16.  Mr. Lee submitted that there was in fact no question of lack of reasonable notice, since the Defendant was only granted the licence by the Deceased, which was automatically revoked upon her death as a matter of law.  However, in light of the long period of the Defendant’s continued residency in the Premises after the Deceased’s death, and by reason of the facts that (a) the Plaintiff himself relies on the Notice to purportedly revoke the Defendant’s licence, and (b) the Plaintiff only claims damages for trespass from the expiry date of the Notice, it is at least arguable that the Plaintiff had himself granted a licence to the Defendant to live in the Premises after the death of the Deceased.  I therefore reject Mr. Lee’s submission in this respect.

17.  In the premises, I also give leave to the Defendant to appeal against the interlocutory judgment.

Application to vary the costs order nisi

18.  The basis of the Defendant’s application is that some hearing time and costs had been wasted because the Plaintiff had failed to provide a clear and full copy of the Mother’s Will before and at the first hearing of the Plaintiff’s application for summary judgment.

19.  Insofar as the Plaintiff’s failure to provide a clear and full copy of the Mother’s Will before the first hearing is concerned, the Defendant however confirmed at the hearing that, even if a better copy were produced to him before the hearing, he would still not have agreed to deliver vacant possession of the Premises to the Plaintiff.  In the circumstances, no time or costs could have been saved even if the Plaintiff had produced a better copy of the Mother’s Will before the hearing.  I therefore do not find this a sufficient ground to vary the cost order as now suggested by the Defendant.

20.  Insofar as the Plaintiff’s failure to provide a better copy of the Mother’s Will at the first hearing of the summary judgment is concerned, in granting the adjournment to enable the Plaintiff to provide a better copy, I already made an order that costs of the adjournment be in the cause of the Plaintiff’s summons for summary judgment.  I refer to paragraph 18 of the Earlier Judgment.  In the premises, I also do not find this a sufficient ground to vary the cost order nisi as now contended by the Defendant.

21.  I thus refuse the Defendant’s application to vary the costs order nisi as set out in the Earlier Judgment.

Conclusion

22.  For the reasons set out above:

(1)    I grant leave to the Defendant to appeal to the Court of Appeal against the summary judgment and the interlocutory judgment.

(2)    I refuse to vary the costs order nisi made on 3 October 2006.

23.  Given that D’s principal application is for leave to appeal, of which I have ruled his favour, I further make an order nisi that costs of D’s Summons, including the costs of these 2 hearings, be in the cause of the appeal.  I will also give certificate for counsel to the Plaintiff in relation to the hearing on 4 December 2006.

24.  At the end of the hearing on 4 December 2006, the Plaintiff undertook through counsel that, before the handing down of this decision, he would not enforce the summary judgment to the extent of taking actual physical possession of the Premises. 

25.  Given my decisions above, it is of course now up to the Defendant to decide whether or not to apply for a stay of execution of the summary judgment and the interlocutory judgment pending the intended appeal.