WONG LAI MEI v. KWONG PAK LEUNG

HCA 2091/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2091 OF 2014

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REASONS FOR DECISION

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1.  This is an application on the part of the plaintiff for an interlocutory injunction against the defendant. The subject matter is a property known as Flat 15 on the 8^th Floor of Man Wah Building, Nos 1‑23 Man Ying Street and Nos 2‑24 Man Wui Street, Kowloon, Hong Kong (“the Property”).

2.  The plaintiff is the lawful and natural daughter of Wong Kwi Sing, deceased (“the Deceased”).  She is suing as the intended administratrix of the estate of the Deceased.

3.  Since 4 October 1983, the Property has been owned by the Deceased and the defendant as tenants‑in‑common in equal shares.  The Property is about 600 sq feet in size comprising of three rooms.  As of 1983, the three rooms were occupied in this manner:

(i) one room was occupied by the Deceased; 

(ii) another room was occupied by the defendant as his grandmother; and

(iii) the third room was rented out.

4.  The Deceased was married in the Mainland and had three children: (i) the plaintiff; (ii) Wang Ruiqiang (“Ruiqiang”) and (iii) Wong Yui Hing (“Yui Hing”).  After Yui Hing came to Hong Kong around November 2000, he resided in the third room which was originally rented out.  When the plaintiff came to Hong Kong in January 2002, Yui Hing shared the third room with the plaintiff.

5.  The defendant’s relationship with the Deceased and his family was amicable up to the time when the Deceased passed away on 20 January 2006.  It is not in dispute that on 20 December 2005, whilst the Deceased was hospitalized, he executed a Chinese instrument in his own handwriting (“the Instrument”) in the following terms:

「本人王繼勝，現將油麻地文英街九號八字樓，文華之業權全部屬於鄺百良先生所有特立此据。恐口無憑特立此据。文華樓九號八字樓業主王繼勝」

6.  The Instrument purported to transfer the Deceased’s interest in the Property to the defendant.  The terms of the Instrument clearly showed that it was not testamentary in nature.  It was also not a deed and hence could not effect a transfer of interest in the Property (see section 4 of the Conveyancing and Property Ordinance, Cap 219 of Laws of Hong Kong).

7.  It is the plaintiff’s case that the Property remained and remains owned by the Deceased’s estate and the defendant as tenants‑in‑common in equal shares.  The plaintiff alleged that since mid‑2006, the defendant had been attempting to oust Yui Hing and her from the Property.  In particular, since around March 2014, the defendant has adopted high‑handed and disturbing acts causing nuisance to the plaintiff’s occupation in the Property:

(1) breaking into the room previously occupied by the Deceased and throwing away or taking away his clothes and personal effects and document;

(2) dismantling and throwing away the shoes cabinet and storage cabinets of the Deceased in his room;

(3) damaging the door of the toilet/bathroom to disturb the plaintiff’s private use of it;

(4) obstructing the living room with miscellaneous articles or things; and

(5) obstructing the kitchen with miscellaneous articles or things to render it unusable.

8.  By a letter dated 12 June 2014, the plaintiff complained through her solicitors about the aforesaid disturbing acts and demanded the defendant to stop the same.  In a reply letter from the defendant’s solicitors dated 23 June 2014, the defendant denied the plaintiff’s allegations.  He further alleged that there was water leakage from the toilet into the lower flat and that he needed to carry out repair works to the toilet.  A quotation was enclosed.  The plaintiff considered that the quotation included various renovation works totally unrelated to the repairing of the toilet.  In her reply, she agreed to the carrying out of repair works and was willing to bear half of the costs.  She however objected to other renovation works.

9.  By a letter dated 30 July 2014, the defendant’s solicitors purportedly gave notice of termination of an alleged licence to the plaintiff and demanded the plaintiff to vacate the Property on or before 31 August 2014.

10.  The plaintiff’s solicitors replied by a letter 8 August 2014 stated that the alleged termination notice was invalid and groundless.  They stated that the plaintiff would not move out of the Property.

11.  On 18 August 2014, the defendant and a male worker broke the water tank of the toilet disconnecting the water pipe to the wash basin.  In the next morning, contractors came to the Property to carry out decoration works as per the defendant’s instructions.  The defendant said the decoration work would take two weeks to complete.  The plaintiff found that she could not reside in the Property and temporarily moved to stay with Yui Hing in his public housing unit.

12.  On 16 September 2014, the plaintiff’s solicitors received a letter from the defendant’s solicitors stating that the defendant had taken possession of the Property on 15 September 2014.  A notice was posted at the entrance of the Property.  On or about 18 September 2014, the plaintiff discovered that the defendant had changed the locks to the gate and front door of the Property.  She and Yui Hing had since been denied access to the Property.

13.  The plaintiff issued the Writ on 20 October 2014 claiming inter alia:

(1) a declaration that the Instrument was invalid in transferring any right, title or interest of the Deceased in the Property to the defendant;

(2) a declaration that the Instrument does not qualify as a valid will;

(3) a declaration that the Property remains owned by the Deceased’s estate and the defendant as tenants‑in‑common in equal shares;

(4) an order that the defendant do forthwith deliver to the plaintiff the keys to the Property;

(5) an order that the defendant do forthwith allow the plaintiff uninterrupted access to the Property and provide and make available a bedroom therein for the residence of the plaintiff;

(6) various injunction orders ensuring the plaintiff’s peaceful and rightful enjoyment of the Property;

(7) an order that the Property be sold under the Partition Ordinance, Cap 352; and

(8) damages for unlawful eviction or ouster.

14.  On the same day of the Writ, the plaintiff also issued an inter partes summons seeking the following interlocutory injunctive reliefs:

(1) An order that the defendant do forthwith deliver to the plaintiff through her solicitors the keys to the Property.

(2) An order that the defendant do forthwith allow the plaintiff uninterrupted access to the Property and provide and make available a bedroom therein for the residence of the plaintiff, with water, gas and electricity supply.

(3) An injunction order restraining the defendant, whether by himself, his servants, agents or otherwise howsoever, from obstructing, interfering in any manner with or hindering the right of the plaintiff in accessing the Property.

(4) An injunction order restraining the defendant, whether by himself, his servants, agents or otherwise howsoever, from interfering with in any manner or hindering the right of the plaintiff to use, stay in, reside and reasonably enjoy the Property, with water, gas and electricity supply.

(5) An injunction order restraining the defendant, whether by himself, his servants, agents or otherwise howsoever, from damaging or destructing the Property or by any other means causing the Property to be uninhabitable.

(6) An injunction order restraining the defendant, whether by himself, his servants, agents or otherwise howsoever, from handling or disposing of any of the personal belongings of the plaintiff at the Property.

(7) An order that upon provision to the plaintiff access to the Property aforesaid the defendant do make available and return to the plaintiff the personal belongings left by the plaintiff at the Property at the time of her eviction.

(8) An injunction order restraining the defendant, whether by himself, his servants, agents or otherwise howsoever, from engaging in or threatening to engage in conduct capable of causing nuisance or annoyance to the plaintiff as a co‑owner or resident of the Property.

15.  The defendant relied on the following main points in his Defence:

(1) On 5 November 2004, in the presence of Yui Hing and his wife, the Deceased told Yui Hing and his wife that since it was the defendant who took care of the Deceased all along and the Deceased made very little contribution to the acquisition of the Property, it was the Deceased’s intention to transfer the Deceased’s half share of the Property to pay back for the defendant’s generosity over the years.

(2) The Deceased was admitted to hospital on 6 December 2005.  An exploratory operation was scheduled on 24 December 2005.  On 23 December 2005, being concerned that he might not recover from the surgery, the Deceased signed the Instrument to evince and confirm again his intention to transfer the half share of the Property to the defendant.

(3) The two witnesses (Wong Mui Yim and Wong Mui Siu) were expressly told by the Deceased of his intention previously and were told by the Deceased again on 23 December 2005.

(4) On 24 March 2006, there was an agreement made between the Deceased’s family and the defendant that the one half share of the Property in the Deceased’s name should be transferred back to the defendant within two months.

(5) Despite the lack of formality either as a will or a deed of gift, the Instrument had shown in unequivocal term the intention of the Deceased to transfer his half share of the Property to the defendant.

(6) In the premises, the Deceased (and his estate) was/is holding the half share of the Property on constructive trust for and on behalf of the defendant.

(7) Further or alternatively, relying on the Instrument, and the Family promise, the defendant had continued paying all the management fees of the Property, paid renovation fees for the common parts of the building, purchased furniture for the Property and paid for the renovation and repairs for the Property.  The estate of the Deceased is thus estopped from refusing to transfer the legal and beneficial title of the Property to the defendant.

(8) Further, the plaintiff stayed in the Property under a licence granted by the defendant to her in her personal capacity and to Yui Hing. This was to the knowledge and acceptance of the plaintiff and Yui Hing.

(9) The defendant also cross‑accused the plaintiff of causing nuisance to his occupation and enjoyment of the Property and suggested that he was compelled into taking his actions.

Preliminary point

16.  At the hearing of the summons for interlocutory injunction, Ms Tang, counsel for the defendant raised a preliminary point on the validity of this action. She pointed out that this action was commenced by the plaintiff in her capacity as “the intended administratrix of the estate of the Deceased” at a time when clearly there had not been a grant of administration.  She relied on the authority of Millburn‑Snell & ors v Evans [2012] 1 WLR 41.

17.  In Millburn‑Snell, the claimants, purportedly acting as the personal representatives of a deceased, issued a claim form claiming entitlement to 50% of beneficial interest in a property and in a business carried on at that property.  The defendant was the owner of the property.  He applied to strike out the claim on the ground that, absent the grant of letters of administration to the claimants at the time when they commenced the action, they had had no title to sue.  The judge acceded to the application and struck out the claim, having considered that he was supported by a host of cases and referred to Ingall v Moran [1944] KB 160.  The claimant appealed and the English Court of Appeal dismissed the appeal.  Rimer LJ said:

“14. It is agreed that Judge Langan QC was correct that, subject only to any help that the claimants may derive from [CPR] rule 19.8(1), their claim was a nullity that must be struck out and could not be retrospectively validated by a grant of letters of administration. This is because whereas an executor derives his title to sue from the will and not from the grant of probate – and so can validly sue before obtaining a grant (although he will have to obtain it later in order to prove his title) – an administrator derives his title to sue solely from the grant of administration: see Chetty v. Chetty [1916] 1 AC 603, 608, 609, per Lord Parker of Waddington.

15. The latter point is well illustrated by this court’s decision in Ingall v. Moran [1944] KB 160. There the plaintiff issued his writ in September 1942 purportedly as the administrator of the intestate’s estate, but did not obtain a grant of administration until November 1942. This court, allowing the defendant’s appeal against the judgment the judge had entered against him, held that the grant did not retrospectively validate the writ, nor could the writ be the subject of an amendment validating the plaintiff’s claim to sue as administrator. The grant enabled the plaintiff to issue a new writ, but that was all. Scott LJ, at p. 165, described the original writ as “incurably a nullity. It was born dead, and could not be revived”. Luxmoore LJ, at p. 169, said that the plaintiff’s action:

‘was incompetent at the date when the writ was issued, and that the doctrine of relation back of an administrator’s title to his intestate’s property to the date of the intestate’s death when the grant has been obtained cannot be invoked so as to render an action competent which was incompetent when the writ was issued.’

Goddard LJ., at p. 172, said that ‘this action was, and always remained, incompetent, and judgment ought to have been entered for the defendant.’

16. I regard it as clear law, at least since Ingall’s case, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity…”

The court then went on to examine rule 19.8(1) which reads:

“Death

(1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order — (a) the claim to proceed in the absence of a person representing the estate of the deceased; or (b) a person to be appointed to represent the estate of the deceased.”

Rimer LJ eventually concluded (in §30) that rule 19.8(1) concerned exclusively with giving directions for the forward prosecution towards trial of validly instituted proceedings when a relevant death requires their giving.  It applied to cases where death occurred during their currency and would usually be of a party.

18.  Mr Cheung for the plaintiff submitted that the plaintiff’s claim is not a nullity and sought to rely on Order 15, rule 6A, in particular sub‑rule (3):

“6A (1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

(2) Without prejudice to the generality of paragraph (1), an action brought against ‘the personal representatives of A.B. deceased’ shall be treated, for the purpose of that paragraph, as having been brought against his estate.

(3) An action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement, and the cause of action survives as having been commenced by his estate or against it in accordance with paragraph (1) as the case may be, whether or not a grant of probate or administration was made before its commencement.

(4) In any such action as is referred to in paragraph (1) or (3) —

(a) the plaintiff shall, and the defendant, the personal representatives of the deceased or any person interested in the deceased’s estate may, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings, or if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed, or as the case may be, against the personal representative, as if he had been substituted for the estate;

(b) the Court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon…”

19.  The problem with Mr Cheung’s submission was that it was contrary to the decision of the Court of Appeal in Chung Yi Yuen (the intended administrator of the estate of the deceased) v Lau Koon Shing & anor [1999] 2 HKLRD 413.  In that case, the deceased died in a traffic accident.  The plaintiff (a brother of the deceased) obtained a power of attorney from the deceased’s wife and immediate family which authorized him to represent the family in claiming damages against those responsible for the accident.  The plaintiff was however not an executor or administrator of the deceased’s estate although he had applied for a grant of administration which was yet to be granted.  The plaintiff commenced action under both the Fatal Accidents Ordinance, Cap 22 (“FAO”) and the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”).  The defendant argued that the plaintiff was not entitled to bring the action.  The defendant succeeded before a judge and the plaintiff appealed.  The appeal was dismissed. 

20.  On the FAO claim, the Court of Appeal held that section 5(1)(a) of FAO did not apply because the wording of the section is:

“… that an action under the Ordinance shall be brought by and in the name of the executor or administrator of the deceased.”

The plaintiff did not qualify because the action was brought in his name.  Neither did he qualify under section 5(2) which is catered for the situation where there is no executor or administrator of the deceased.  It is because the sub‑section states that:

“… the action may be brought by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it.”

21.  On the LARCO claim, counsel sought to rely on Order 15, rule 6A(3).  The court rejected such argument on the basis that the action did not fall within the wordings of sub‑rule (3).  Godfrey JA said at 416F:

“ As it seems to me, this action clearly is not. This action does not purport to have been commenced by the deceased. It purports to have been commenced by the brother. Accordingly, sub-rule (3) does not apply, for the brother was not dead at the commencement of the action and no cause of action survives in him. Only when a person dies, and after the date of his death an action is commenced in his name, do the provisions of sub-rule (3) come into operation. This is not that case. Accordingly I have no doubt, unfortunate though it may be, that the court below was again right.” (my emphasis)

22.  The plaintiff in these proceedings is in the same situation.  The plaintiff sues not in the name of the Deceased.  She sues in her own name and in her capacity as “the intended administratrix of the estate of the deceased”.  That is exactly what the brother in Chung Yi Yuen did.  In the circumstances, I am bound by the authority to hold that the plaintiff is not entitled to bring these proceedings in that manner.  In the same way, Bharwaney J fell bound by the Court of Appeal decision in Bushra Bibi and Method Building & Engineering Works Ltd [2014] 3 HKLRD 21.  In that case, Bharwaney J gave guidance as to how to begin an action based on a LARCO claim utilizing the machinery of Order 15, rule 6A(3).  His Lordship opined that the title of the plaintiff should be stated as “ABC, deceased”.  An application should then be taken out under rule 6A(4) for a person to be appointed to represent the estate.  I agree and this suggestion is equally applicable to a claim basing on a cause of action that survives the death of a person.  In agreeing with Bharwaney J, I disagree with the observation of the learned editor of Hong Kong Civil Procedure 2015 at §15/6A/2.  The learned editor suggested that the application of Order 15, rule 6A(3) should be confined to cases where the naming of a person (who was at that time already dead) as plaintiff was due to inadvertence or lack of knowledge.  The basis of the learned editor’s view was the common law principle of action personalis moritur cum persona.  With respect, I do not see any basis for restricting the application of Order 15, rule 6A(3) in that way.  The wordings of the rule certainly do not admit such restrictive interpretation.  So long as an action “purports to have been commenced by a person” (that person being dead at the commencement), it “shall be treated … as having been commenced by his estate…”.  Order 15, rule 6A was enacted pursuant to section 55A of the High Court Ordinance which was intended to rid of unnecessary technicalities and to facilitate the commencement of proceedings in respect of the estates of deceased persons.  The old common law principle represents no obstacle to a purposive and liberal interpretation of the rule.

23.  Returning to Chung Yi Yuen, it is interesting to note that the editor of the law report noted that the Court of Appeal did not consider and determine whether, in the result, the action was a nullity and incurable by amendment or whether, upon the grant of letter of administration, the writ could be amended to join the administrator as plaintiff.  Mr Cheung submitted that Chung Yi Yuen is not an authority to suggest that the error in this case amounted to a nullity.  He referred me to Re Estate of Luk Kim Ying [2008] 5 HKLRD 743.  With respect, this case is clearly distinguishable.  In that case, the plaintiff commenced the action in her own personal capacity as a purported beneficiary of the intestate estate.  J Poon J held that on the authority of Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694, the plaintiff had a chose in action basing on her rights in the intestate estate, capable of being invoked for any purpose connected with the proper administration of the estate.  The plaintiff was thus entitled to bring the action in her personal capacity.  Yet, on the authority of Ip Cheung Kwok v Sin Hua Bank Trustee Ltd (unreported, CACV 34/2005), it was necessary for her to join the personal representative of the estate or a suitable person to represent the estate.  In the absence of a proper joinder, Poon J considered that the action was irregular though not a nullity.  It can be seen that the situation was clearly different and distinguishable in Luk Kim Ying.   Furthermore, we have now the authority of Millburn‑Snell.  I can see no reason why the reasoning of the English Court of Appeal in Millburn‑Snell should not apply in Hong Kong and Mr Cheung had not suggested any.  In my judgment, the bringing of the action and the filing of the Writ in the present case was a nullity ab initio.  As Scott LJ said in Ingall, this action was born dead and could not be revived.  On this ground alone, the summons must be dismissed.

24.  I was told by Mr Cheung that the plaintiff’s application for letters of administration had reached a matured stage.  There is no issue of limitation.  She can instigate a fresh action as and when she obtains a grant. Alternatively, she can decide to bring a new action adhering to the guidance of Bharwaney J in Bushra Bibi or restructuring her case so as to take the course adopted by the plaintiff in Luk Kim Ying.

Conclusion

25.  Since I found the instigation of the action to be a nullity, I would have to dismiss the action all together (not just the summons for interlocutory injunction).  I did so order on 16 January 2015 and these are the reasons for my decision.

Postscript

26.  After announcing my orders, I indicated to counsel that should a new action be instituted by the plaintiff, parties should review their positions with practicality in mind.  It is never a good idea to force two “fallen-out flatmates” to share one residence.  The major disputes between them are on: (1) the legal effect of the Instrument; and (2) proprietary estoppel.  Both sides have already set out their respective cases in their affirmations.  The new action is unlikely to involve lengthy discovery.  Preparation of witness statements in the new action has now become a mechanical exercise.  The circumstances of this case cry out for an order of speedy trial.  This would no doubt serve parties better than a protracted battle on interlocutory injunction.