YU WING CHEONG alias YU JOSEPH WING CHEONG, Executor substituted named in the Will of YAU SIN WAH alias YAU KAM LAN (“Deceased”) AND ANOTHER v. YU WING YIN

CACV 270/2019

[2022] HKCA 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2019

(ON APPEAL FROM HCMP 2089 OF 2017)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A.  INTRODUCTION

1.  This Court handed down our judgment on 19 January 2022 (“the Judgment”) dismissing the defendant’s appeal against a decision of Deputy High Court Judge Le Pichon (“the Judge”) dated 22 May 2019 ([2019] HKCFI 1304)(“the Decision”).

2.  By the Decision, the Judge granted the plaintiffs’ application for summary judgment and ordered the defendant to deliver vacant possession of the property at 1^st Floor, No 24 Green Lane, The Sanitarian Apartments, Nos 20 ‑ 30 Green Lane, Hong Kong (“the Property”) to the plaintiffs, and the Property is to be sold with vacant possession at market price within three months thereafter.

3.  By a Notice of Motion filed on 16 February 2022, the defendant seeks leave to appeal to the Court of Final Appeal against the Judgment.

4.  After reviewing the Notice of Motion and the written submissions lodged by the parties[1], we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

B.  THE NOTICE OF MOTION

5.  The background leading to these proceedings has been summarized at [5] ‑ [12] of the Judgment, which will not be repeated here.

6.  As a recap, the plaintiffs and the defendant are siblings and are, together with their sister, the beneficiaries under their mother’s will.  The plaintiffs are the executors of the will, and the 2^ndplaintiff obtained the grant of probate.  Relevantly, at the time of these proceedings, the only un‑administered / realised estate under the will is the Property, where the defendant has been residing for some 60 years.

7.  The plaintiffs as executors intended to sell the Property (which had an estimated market value of around HK$32 million, subject to making a premium payment to lift the restrictions on alienation under the relevant terms of the Government lease) and to distribute the proceeds to the beneficiaries (who are all in their 70’s).  However, despite the plaintiffs’ requests, the defendant has refused to vacate the Property.  Hence, the present proceedings were brought by the plaintiffs as executors against the defendant, seeking an order for vacant possession, and for sale of the Property at an auction.  The plaintiffs applied for summary judgment before the Judge.

8.  As summarized at [12] of the Judgment, the defendant opposed the summary judgment before the Judge in contending that there were triable issues as to:

(1)  Whether the defendant had an equitable interest in the Property as a tenant in common, such that the Property cannot be sold without his consent;

(2)  Whether the plaintiffs were estopped from demanding the defendant to deliver vacant possession of the Property;

(3)  Whether the statutory power under section 54 of the Probate and Administration Ordinance (Cap 10) (“the PAO”) is exercisable by the 2^nd plaintiff as the executor given:

(a)  The defendant had equitable interest over the Property;

(b)  The court of equity ought to examine other circumstances, ie, the collective sale, prior to the making of an order for sale; and / or

(c)  The plaintiffs are estopped from selling the Property which the defendant was promised by the father and mother to reside as long as he wishes; and

(4)  Whether there was an imminent collective sale for redevelopment of the Sanitarian Apartments, of which the Property is part, pursuant to the Land (Compulsory Sale for Redevelopment) Ordinance (Cap 545) and the Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (Cap 545A).

9.  By way of the Decision, the Judge rejected all these contentions.  The defendant then appealed the Decision to this court.

10.  As we observed at [18] of the Judgment, the defendant’s grounds of appeal as set out in his Notice of Appeal spanned across 31 paragraphs, and were repetitive of the matters that had been stated in his pleadings, affirmations, witness statement and skeleton arguments advanced before the Judge below.  Those grounds can be grouped into the following four general grounds:

(1)  The Judge’s approach of determining the summary judgment application is wrong.

(2)  The Judge erred in finding that there is no triable issue in respect of the defendant’s contentions that he is an equitable tenant in common of the Property.

(3)  The Judge erred in disregarding the fact that the Property is gaining in value and that there is an imminent collective sale for redevelopment.

(4)  The Judge erred in rejecting the two estoppels raised by the defendant.

11.  By way of the Judgment, this court rejected all the above grounds of appeal as plainly without merits for the reasons set out therein.

12.  For the present application for leave to appeal to the CFA, in his Notice of Motion, written submissions and reply submissions, the defendant again adopted a verbose and scattergun approach raising the following proposed grounds of appeal against the Judgment:

(1)  The Judge’s approach in determining the summary judgment application was wrong and that the “burden of proof is on the plaintiffs to prove their case beyond doubt that the defendant has no defence” (“Ground 1”);[2]

(2)  The Judge erred in finding that there is no triable issue in respect of the defendant’s contentions that the siblings are equitable tenants in common and that the plaintiffs have no right to sell under section 52 of the PAO or to evict the defendant from the Property, and that summary judgment is unjustified given the need to look into all the circumstances of the case (“Ground 2”);[3]

(3)  The Property is rapidly gaining in value at a rate 56 times the purported outlay claimed by the plaintiffs and the collective sale would bring the most favourable price for the Property, and there is no need to evict the defendant prior to the sale and that there were instances of mala fides arising from situations (“Ground 3”);[4] and

(4)  The plaintiffs are prevented to sell the Property on the grounds of equitable estoppel and promissory estoppel (“Ground 4”).[5]

13.  It is plain that these proposed grounds of appeal are essentially a repeat of those arguments previously raised before this Court which have all been rejected.

C.  ANALYSIS

14.  The relevant criteria for granting leave to appeal to the Court of Final Appeal are set out in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484:

“An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court [of Final Appeal] for decision.”

15.  The defendant says this case raises questions of great general public importance concerning the burden of proof in summary judgment procedures and as the Property is under alienation restriction which is similar to a large number of flats in a number of civil servants’ cooperative buildings society schemes.

16.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3].

17.  In the proposed grounds of appeal, the defendant essentially disagrees with the Decision and the Judgment, and repeats the same arguments previously raised before the Judge and this Court, without pointing out with specifics and particulars any errors in the Judgment.  As such, they are plainly not viable grounds of appeal.

18.  In any event, none of his submissions has any merit, as further explained below.

C1.    Ground 1

19.  Under this ground, the defendant again asserts that the burden of proof is on the plaintiffs to prove their case beyond doubt that the defendant has no defence.  He further asserts that even if some elements of his defence are uncertain or perceived to be unclear, or that there is a lack of evidence, these per se do not render those issues not triable, as it was wrong to expect the defendant to present as much evidence in a summary judgment hearing as in a full trial, and that those uncertain or unclear matters can be determined at the subsequent trial where parties could furnish further evidence in support.  In support of these submissions, he has also cited, for the first time, various authorities[6] as to the legal principles on summary judgment applications and contended that the Judge and this Court had erred in assessing his defences.

20.  The defendant’s submissions are wholly untenable.  His contentions in relation to the burden of proof have been considered, addressed and rejected at [21] ‑ [26] of the Judgment.  As we have analysed, the Judge did not wrongly reverse the burden of proof on the defendant as alleged, and her determination of the summary judgment was clearly made in accordance with the well-established legal principles and cannot be faulted.  The defendant has failed to pinpoint any errors in the Judgment and his mere regurgitation of the same arguments does not constitute a proper ground of appeal.

21.  Insofar as those legal authorities cited by the defendant are concerned, they do not depart from those trite principles as we have referred to at [24] of the Judgment.  They therefore do not add anything and do not assist the defendant.  Moreover, it is also well-established that even in a summary judgment application, it is open to the Judge to test the material aspects of the defences to see if they are supported by law and / or against the evidence disclosed in the affidavit including matters such as contemporaneous documents, and the inherent probabilities to see if the relevant defences are capable of belief and thus raise triable issues[7].

22.  Accordingly, this ground is also unarguable.

C2.    Ground 2

23.  Under this ground, the defendant repeats those same submissions previously raised before this Court that the Judge erred in rejecting as not triable his allegations that he and his siblings are equitable tenants in common of the Property.  The defendant also contends that the plaintiffs must first obtain “proper title” before they can sell and that such title obtained “must be in the names of the four siblings” and the siblings must be equitable tenants in common.  He complained that the Judgment had made no mention of “the crucial point that title should reflect equitable interests”.  He further contends that the plaintiffs had instances of acting mala fides over the years.  Again, he seeks to rely on Halsbury’s Laws of Hong Kong [230.819] and Bull v Bull [1955] 1 QB 234 that the plaintiffs have no right to sell exercisable under section 52 of the PAO.

24.  These contentions had all been considered and rejected by us at [27] ‑ [37] and [49] of the Judgment.  In his present submissions, the defendant only disagrees with our views and seeks to regurgitate his previous submissions without identifying how we had erred in the Judgment.  This is not a valid ground of appeal.

25.  The defendant’s bare assertion that those reasons and conclusions made by the Court in [34] ‑ [37] of the Judgment are all wrong as the authorities cited therein “do not apply to the present situation at all” is plainly without merit.  The authorities relate to the trite principle that a beneficiary under a will does not have any legal or equitable interest in the assets of the estate before the administration of the estate is completed.  Clearly, that legal principle applies squarely to the present case (given that the administration of the mother’s estate has not been completed), which renders the defendant’s contentions of having an equitable tenants‑in‑common interest of the Property plainly untenable.

26.  For the above reasons, this ground must also fail.

C3.    Ground 3

27.  Under this ground, the defendant contends that the Property is rapidly increasing in value which outweighs the plaintiffs’ reasons for sale.  The defendant again asserts that the collective sale of the Property for development would bring the most favourable price for the Property and is likely to be the only way that the Property could be sold at a reasonable price.  The defendant also repeats the contentions that there had been instances of mala fides of the plaintiffs associated with the collective sale and that these factual incidents “showed a bad purpose on the part of the plaintiffs”.

28.  Again, these contentions had all been considered and rejected by this Court for the reasons set out at [38] ‑ [42] of the Judgment, where this Court upheld the Judge’s conclusion that there was no evidence to support even an arguable case that a collective sale of the Sanitarian Apartments was imminent so that the court should not exercise its discretion to grant an order for sale of the Property for the administration of the estate. In this respect, this Court further observed that any allegations of mala fides on the part of the plaintiffs in seeking to sell the Property would not assist the defendant without first establishing a prima facie case that there is an imminent collective sale of the Sanitarian Apartments.

29.  A repeat of the same submissions by the defendant now does not constitute a valid ground of appeal.

30.  In relation to this, the defendant has now attempted to reformulate his case by asserting that whether the collective sale is imminent is not the issue but rather that the collective sale of the Sanitarian Apartments would likely bring the most favourable price for the Property and likely be the only way that the Property could be sold at a reasonable price.

31.  This is neither here nor there.  The material and essential fact remains that the prospect of a collective sale for redevelopment remains unclear and uncertain.  On this basis, we again held in the Judgment at [41] that the Judge was clearly correct in concluding that it would be invidious and unreasonable to refuse an order for sale simply because there is a mere possibility that a collective sale for redevelopment could happen in the future when the court takes into account the other relevant factors, amongst others, that (a) the Property requires significant cost for its maintenance and up‑keeping given its age, (b) the 2^nd plaintiff has to obtain loans to do so, (c) the estate is unable to derive income from the Property given the alienation restrictions under the Government lease, (d) the beneficiaries are all in their 70s, and (e) it is desirable to wind up the mother’s estate which has been in administration for more than 17 years, which factors would all “strongly justify” the plaintiffs’ decision to sell the Property for the proper administration of the mother’s estate.

32.  This ground is without merit.

C4.    Ground 4

33.  This ground relates to the defendant’s purported defence based on the doctrines of equitable estoppel and promissory estoppel.  Under this defence, the defendant contends that the plaintiffs are estopped from selling the Property because (a) they failed to make an assent of the Property to the beneficiaries within two years of obtaining probate pursuant to an alleged “statutory provision”, and / or (b) the father and the mother had promised the defendant that he could reside in the Property for as long as he wished, and he has relied on their promise to his detriment.

34.  We upheld the Judge’s conclusion that no triable issues were raised by this defence as (a) the defendant had failed to show which “statutory provision” or any other legal authority to support the contention that the plaintiffs must make an assent of the Property to the beneficiaries within two years of obtaining probate, and (b) the defendant had failed to provide any particulars and evidence to support the alleged “promises” made by the parents to let him reside in the Property for as long as he wished, and  to show the expenditures that he has allegedly incurred in reliance upon those promises. See [44] and [45] of the Judgment.

35.  Under this ground of appeal, the defendant asserts that his failure to produce legal authority to support his contentions does not equate with the lack of triable issues.  He also says it is unreasonable to expect anyone to keep expenditure records over several decades when there had been no anticipation of litigation.  The defendant again submits that the facts deposed had been testified in his witness statement and this is sufficient evidence to raise a triable issue.

36.  The defendant further seeks to reformulate his case to say that the “two years” time limit he previously contended was not a critical element, but rather that the assent should be done “within a reasonable time”.  He now contends that as 20 years have passed after the 2^nd plaintiff has obtained the probate and has failed to make an assent of the Property, the plaintiffs must now be estopped from selling the Property.

37.  This ground is similarly hopeless:

(1)  The defendant’s reformulated proposition that the plaintiffs as executors must make an assent to the Property to the beneficiaries under the will within a reasonable time even when the administration of the estate is not yet completed is not supported by any authority.  Quite to the contrary, this would be on the face of it contrary to the above-mentioned well-established principle that the beneficiaries do not have any equitable interest in the estate until after the completion of the administration.

(2)  As mentioned above, the court is entitled in a summary judgment application to test the defendant’s case on “the promises” against the evidence (or the lack of it) and the relevant particulars (and the lack of them) of the allegation, but without falling into a “mini-trial” of the case, to reach a conclusion as to whether the defence is worthy of belief to raise a triable issue.  The mere fact that the defendant has set out his assertions in a witness statement in the present case is neither here nor there in this exercise.

D.  DISPOSITION AND COSTS

38.  For all the above reasons, the proposed grounds of appeal are plainly without any merit.  They also in any event raise no arguable question of great general public importance as (a) the principles of burden of proof in a summary judgment application are well established, and (b) the proposed grounds are all facts specific to the particular circumstances of the present case and do not concern the alienation restriction generally applicable to civil servants’ cooperative buildings society schemes as alleged by the defendant.

39.  We also do not see any basis to grant leave on the “otherwise” limb.

40.  We will therefore refuse to grant leave to the defendant to appeal against the Judgment to the Court of Final Appeal and dismiss the Notice of Motion.

41.  As to costs, we see no reason why costs should not follow the event.

42.  In this regard, the plaintiffs have asked for indemnity costs.  We agree this is a right case where indemnity costs should be ordered.  We find it an abuse of process by the defendant in making this application by once again adopting a verbose and scattergun approach to advance hopeless grounds of appeal which are all essentially a repeat of the same submissions and arguments which have been rejected by this Court in the Judgment.  We therefore order that costs of this application be paid by the defendant to the plaintiffs to be assessed summarily on an indemnity basis.

43.  To this end, we further direct that the plaintiffs do lodge and serve a Statement of Costs within 7 days of this Judgment, and the defendant do lodge and serve his written comments (of not more than one page) on the plaintiffs’ Statement of Costs, if any, within 14 days of this judgment.  Thereafter, we will assess the costs summarily on paper.  If the defendant’s written comments exceed one page, this Court will disregard the comments for the assessment.