NG YUK MUI v. NG KAMMI YU NING APPOINTED BY ORDER DATED 30 SEPTEMBER 2015 TO REPRESENT THE ESTATE OF NG HOI, DECEASED AND OTHERS

HCA 53/2012

[2018] HKCFI 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 53 OF 2012

______________

______________

______________

D E C I S I O N

______________

1.  On 19 April 2018, the plaintiff took out a summons for leave to amend her Re-Re-Amended Statement of Claim (“RRASOC”). The summons, originally returnable before a Master on 4 May 2018, was adjourned to be heard before me at the pretrial review conducted today.

2.  The Statement of Claim was first filed on 11 January 2012.  It has since been amended three times (on 17 February 2012, 13 September 2012, and 16 June 2016).  The result is the current RRASOC.

3.  When first issued, the Writ and the Statement of Claim named Mr Ng Hoi as the 1^st defendant (the “Deceased”).  On 13 June 2014, he filed a witness statement.  He passed away in January 2015.  By Order dated 30 September 2015, Ng Kammi Yu Ning was appointed to represent the Deceased’s estate, who becomes the current D1.

4.  According to the RRASOC in its current form, the plaintiff, relying on the doctrine of adverse possession and her alleged possession of certain lots of land in the New Territories, seeks a number of declarations pursuant to the Limitation Ordinance.  Further or alternatively, she relies on an oral agreement (the “Oral Agreement”) which she avers she entered into with the Deceased in 1993.  She avers that that oral agreement was evidenced in writing by what she calls “the Confirmation” which she says was signed by the Deceased.  She avers that the Oral Agreement concerns a plot of land which the parties call the “Yellow Portion”, and that its effect was that the Yellow Portion “shall belong to the Plaintiff.”  She avers that as a result of the existence of the Oral Agreement, some subsequent dealings by inter alios the Deceased in respect of the Yellow Portion either had no legal effect or were null and void.  In particular, she pleads that the Assignment (the “Assignment”) by inter alios the Deceased of the Yellow Portion to D4 was null and void and is liable to be set aside.

5.  Both in his defence and witness statement, the Deceased denied the existence of the Oral Agreement.

6.  The amendments now the plaintiff proposes to effect can be grouped under four main categories:

(a)  to amend her plea on the nature of the Oral Agreement by averring that it is a “family arrangement” (the “Family Arrangement Amendments”);

(b)  to add causes of action based on breach of trust (the “Breach of Trust Amendments”).  Briefly stated, the plaintiff seeks to aver thereby that the Confirmation and the arrangement reached between her and the Deceased in 1993 resulted in the Deceased holding thereafter the Yellow Portion “on express and/or common intention constructive trust” for her, and that the subsequent execution of the Assignment constituted in law a breach of trust;

(c)  to insert a cause of action of knowing receipt (the “Knowing Receipt Amendments”).  Again briefly stated, the plaintiff seeks to aver, following on from the Breach of Trust Amendments, that the conveyance of the Yellow Portion by the Assignment to D4 constituted knowing receipt of trust property on the part of D4;

(d)  to amend the prayer (the “Prayer Amendments”).  Such amendments fall into two groups: (1) the re-organization of the relief currently sought; and (2) the addition of further relief consequential upon the effecting of the Amendments set out above. 

7.  Mr Jason Lee, counsel for the plaintiff, submits that “all of the proposed amendments…only seek to state explicitly the legal consequences of material facts already pleaded”, and that “they are strictly speaking not necessary”.  He accepts that the application is made late, but submits that“notwithstanding the lateness of the application to amend, since the proposed amendments involve no new factual averments, it is difficult to see how they can give rise to any prejudice to the Defendants, particularly prejudice which cannot be compensated by costs.”

8.  The application is opposed by Mr Martin Ho who appears for D1 and D2 (D2 being the Deceased’s ex-wife).  Ms Lorinda Lau for D3 to D5 are neutral to the application, subject to the rider that the trial dates should not be upset. 

9.  Mr Ho’s submissions in opposition may be summarized as follows:

(a)  The Family Arrangement Amendments:

(i) Mr Ho refers me to the decision of the Singaporean Court of Appeal in Kuek Siang Wei v Kuek Siew Chew [2015] 5 SLR 357 and the decision of Anthony Chan J in Yang Foo-oi v Wai Wai Chen HCA 1739/2010 (unreported, 29 November 2016).  He submits that whilst it is correct to say that a family arrangement is a specie of contract, there are specific features of a family arrangement that differs from an ordinary contract.  For example, the parties to a family arrangement act not just out of self-interest, but also in furtherance of the interest of the family unit to which they belong.  Further, given the special nature of a family arrangement, the agreement is liable to be set aside if any party to it had intentionally suppressed facts that might have been material or suggested matters that were false before the agreement was entered into so as to influence another party’s decision on whether to adopt the family arrangement in question.  All these features are facts sensitive;

(ii) The Deceased has passed away.  Had the amendments been made earlier, all the relevant factual issues could have been canvassed by him in his witness statement, which is no longer possible;

(iii) Allowing those Amendments at this stage will be grossly unfair to D1 and D2.

(b)  The Breach of Trust Amendments:

(i) The proposed amendments lack essential particulars.  Further, the new pleas, if allowed, raise new factual issues;

(ii) In so far as the plea of express trust is concerned, no particulars have been offered supporting the certainty of words evincing an intention of the part of the Deceased toact as trustee.  In any event, even if such particulars wereavailable, it would be necessary to take instructions from the Deceased on the same, which is no longer possible;

(iii) In so far as the plea of common intention constructive trust is concerned, Mr Ho refers me to Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9.  In that case, G Lam J held at para 46 that to be successful, a claimant has to establish that:

(1) There was a common intention between the plaintiff and the defendant that the plaintiff was to be the beneficial owner of the property despite that it was acquired in the defendant’s name;

(2) The plaintiff altered his position in detrimental reliance upon such common intention; and

(3) It is unconscionable for the defendant to assert ownership in reliance on her legal title to the property;

(iv) The need to plead and establish by evidence inter alia detrimental reliance is therefore necessary.

(c)  The Knowing Receipt Amendments:

They are premised upon the Breach of Trust Amendments, and should therefore also be refused;

(d)  The Prayer Amendments:

In so far as those which are consequential upon the proposed Amendments dealt with above are concerned, they should also be refused.

10.  I have considered the submissions.  I have also considered all the authorities submitted to me.  I bear in mind the principles governing amendment of pleadings.  I bear in mind the underlying objectives. 

11.  I note in this case the lateness of the application, and the absence of any explanation for the same.  I note that in the listing questionnaire, it was indicated on behalf of the plaintiff that the case was ready to be set down, and the intention to make the present application was not mentioned.  I accept that the Breach of Trusts Amendments lack particulars.  I also accept Mr Ho’s submissions on the implications which the proposed Amendments have.  Most importantly, those amendments, if allowed, would raise new issues of facts which would, if the Deceased were still alive, require new factual issues to be canvassed by him.  That is however no longer possible.  In my view, quite apart from the lateness of the application, and the distinct possibility of the trial dates being upset (18 days having been reserved from 9 October 2018), allowing the application will cause prejudice and unfairness to the defendants, and in particular to the estate of the Deceased and D2, which cannot be put right by costs.

12.  In all the circumstances, and having balanced them, I refuse the application.

13.  There are certain proposed amendments which Mr Ho does not object.  I will now proceed to hear parties on the exact terms of the Order, and the issue on costs.