HCA 924/2021
[2022] HKCFI 1380
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 924 OF 2021
________________________
BETWEEN
LO YUK KUEN
Plaintiff
and
PERSONAL REPRESENTATIVE OF THE
1st Defendant
WONG YU CHO ROLLY
2nd Defendant
OCCUPIERS OF LOT 457 IN DD 34,
3rd Defendant
________________________
Before: Mr Recorder William Wong SC in Chambers
Date of Hearing: 22 February 2022
Date of Reasons for Decision: 25 May 2022
________________________
REASONS FOR DECISION
________________________
1. By a notice to appeal to judge in chambers dated 29 October 2021 (the “Notice of Appeal”), Mr Wong Yu Cho Rolly, the 2nd Defendant herein, appeals against Master Kent Yee’s decision to dismiss the 2nd Defendant’s application to strike out the Plaintiff’s Statement of Claim.
FACTUAL BACKGROUND
2. This case is fairly straightforward. The Plaintiff is the administratrix of her late husband, Woo Kam Lun Peter (“Peter Woo”) and Peter Woo’s late mother, Madam Lee Wan Lan (“Madam Lee”) who were tenants in common each holding 1/5 share of a property at Lot 457 in D.D. 34, Tai Po, New Territories, locally known as No. 4770 Tai Po Road, Tai Po Kau, Marco Polo Villa, Tai Po, New Territories (the “Property”). The other 3/5 of the Property is held by John Kam Chuen Woo, Hemeline May May Ho, and Tony Chow Kar-Cheung as tenants in common of 1/5 share each.
3. Madam Lee and Peter Woo passed away on 23 October 2008 and 17 May 2017. The Plaintiff obtained letters of administration of their estates on 15 May 2018 and 15 June 2021 respectively.
4. The 2nd Defendant was a tenant of the Property from about May 2010 by an agreement in writing with Peter Woo (the “Tenancy Agreement”), but the tenancy was terminated when the 2nd Defendant was adjudicated as a bankrupt in March 2013.
5. In about April 2013, the 2nd Defendant’s wife, Madam Wong Wing King (“Madam Wong”) entered into an oral agreement with Peter Woo in basically the same terms as the Tenancy Agreement.
6. After Peter Woo passed away in May 2017, Madam Wong continued to pay rent to the Plaintiff up to May 2019, after which no rent was received. There was no suggestion by Madam Wong or the 2nd Defendant that the Plaintiff as a tenant-in-common of 2/5 shares of the Property was not entitled to receive rent pursuant to the oral agreement.
7. The Plaintiff subsequently discovered that Madam Wong passed away in about August 2019. Hence, the oral agreement was terminated and there was no payment of rent from June to August 2019 (the “Outstanding Rent”).
8. Despite repeated demands, no one came forward as personal representatives of the estate of Madam Wong to accept liability for the Outstanding Rent. Moreover, despite repeated demands, the 2nd Defendant and other persons who were and are still occupying the Property without the Plaintiff’s consent refused and is still refusing to deliver up vacant possession of the Property. They continue to occupy the Property without paying any mesne profits to the Plaintiff.
9. Hence, it is only natural that the Plaintiff issued a statement of claim on 16 June 2021 against the defendants herein for vacant possession of the Property, the Outstanding Rent and mesne profits.
10. On 29 June 2021, the 2nd Defendant took out a summons to strike out the Plaintiff’s Statement of Claim.
11. On 1 July 2021, the 2nd Defendant filed his Defence. His defence is a point of law, namely,
“(a) The Property was at all material times co-owned by the owners as joint tenants, one of whom was Peter Woo Kam Lun; and on his death all his estate and interests in the Property and/or derived therefrom passed to the surviving owners. In the premises, the Plaintiff representing his estate has at all material times and still has no title or right or locus standi to institute the proceedings herein.
(b) Alternatively, the Property was co-owned at the material times as a tenancy in common by the owners, three of whom had passed away, including Peter Woo Kam Lun and his mother Lee Wan Lan whose estate at all material times remained and still remain unadministered.
(c) Under Order 15 Rule 4 of the High Court Rules persons jointly entitled to a cause of action must sue jointly; by reason whereof the Plaintiff was at all material times legally required to and could only sue jointly with other co-owners, including all the personal representatives of all those owners who passed away. Lee Wan Lan’s estate at all material times were without and still is without any personal representative and no one could sue on behalf of her estate.
(d) In the premises, the Plaintiff at all material times had and still has neither the legal entitlement nor the estate or right or locus standi to singly institute the proceedings herein and the same are liable to be struck out as disclosing no reasonable cause of action and/or being frivolous, vexatious and an abuse of the process of the Court.”
12. At the hearing, the 2nd Defendant confirmed to this Court that although he acted in person, in fact, he received legal advice to advance his defence and the striking out application. In my view, there is absolutely no merit in the 2nd Defendant’s application. He has no right to unjustly occupy the Property without delivering up vacant possession to the Plaintiff and in effect enjoying the Property without paying any mesne profits in the interim.
13. The 2nd Defendant’s only point is that all tenants in common must be joined as plaintiffs failing which the present action has to be struck out. I reject this argument.
14. In Chan Po King v Yau Wai Yin [2015] 4 HKLRD 54, the Court of Appeal ruled that each tenant-in-common had a separate and distinct interest in the property and could deal with his own undivided share as he liked. He could lease it or dispose of his right to possession to a stranger without the concurrence of the other tenants-in-common. Similarly, he could enforce his interest in the land on his own without joining the other co-tenants. Chu JA at §§20, 21 and 25 said:
“20. In Chin Lan Hong v Cheung Poh Choo at [32], Le Pichon JA, with whom other members of the Court of Appeal agreed, pointed out that the position in Hong Kong with regards to the rights of legal tenants-in-common, is similar to that in Australia and New Zealand and in the United Kingdom prior to the Law of Property Act 1925. It is that a tenant-in-common is entitled to deal, in whatever way he desires, with his own undivided share; he may lease it or dispose of his right of possession to a stranger as he likes without the concurrence of the other tenants-in-common.
21. In coming to this conclusion, Le Pichon JA had referred to the New Zealand High Court’s decision in U-Needa Laundry Ltd v Hill [2000] 2 NZLR 308 at [24], which held that a tenant-in-common could lease its own interest against the wishes of his co-tenants since the interest of each tenant-in-common was separate and distinct and each tenant could deal with his own share as he saw fit.
25. In short, on the materials before the court, the respondent has no right to remain on the Property after the tenancy expired by effluxion of time. This being the case, the applicant must be entitled, in exercise of her right and interest to possession as a tenant-in-common, to claim possession from the respondent.”
15. Mr Tsui for the Plaintiff submitted that a letter of administration de bonis non of the estate of Madam Lee was granted to her on 15 June 2021, in addition to being the adminstratrix of the estate of Peter Woo. She has also the consent and written authorization of other co-owners to institute this action.
16. Mr Tsui is right that the Plaintiff, qua administratrix of the estate of Peter Woo, can sue on behalf of his estate in respect of 1/5 share of the Property. From the land research record, it shows that the Plaintiff is registered as a tenant-in-common in her capacity as an administratrix.
17. Mr Tsui further stressed that the Plaintiff is not taking this action as a representative action under Order 15, rule 12 of the Rules of High Court, Cap.4A. The Plaintiff is suing as an administratrix of the estate of Peter Woo which holds 1/5 of the share of the Property (2/5 if the estate of Madam Lee is included), with the consent of the tenants-in-common of the other 3/5 share. The Plaintiff’s capacity is also pleaded clearly in paragraph 1 of the Statement of Claim.
18. Insofar as the claim against the 1st Defendant is concerned, the 2nd Defendant does not act for the personal representative of Madam Wong. Mr Tsui for the Plaintiff submitted that the claim against the 1st Defendant is brought under Order 15, r.6A(2) of the Rules of High Court, Cap.4A.
DISPOSITION
19. For all the reasons stated above, the 2nd Defendant’s appeal is dismissed. I also make an order that the 2nd Defendant should bear the costs of and occasioned by this appeal and the same is to be paid to the Plaintiff, to be taxed on a party to party basis, if the parties cannot agree.
(William Wong SC)
Recorder of the High Court
Mr Wilfred Tsui, instructed by H. Y. Leung & Co. LLP, for the Plaintiff
Wong Yu Cho Rolly, 2nd Defendant, appearing in person