GURUNG, TANUJA v. LILBURN, ARLENE

HCMP 616/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 616 OF 2011

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DECISION

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1.  The named Defendant (Madam Lilburn) appeals against the possession order made against her under Order 113.  The issue is whether or not she, or the Plaintiff, has better right to possession of the subject Property.

PRELIMINARY MATTERS

2.  At the time of hearing this appeal, there is a pending legal aid application.  However, it can be seen from the above analyses that there is simply no merit in the appeal.  Additionally, it is the 2^nd time Madam Lilburn applied for legal aid, her previous one being rejected on 1 June 2011.  I therefore consider it unfair to the Plaintiff to wait any longer.  Accordingly, I uplift the stay and proceed to deal with this appeal.

3.  For the purpose of this appeal, Madam Lilburn has filed 2 affidavits dated 22 and 28 June 2011 respectively.  She cannot tell me what special grounds exist to justify her filing new evidence on appeal pursuant to Order 58, rule 1(5).  Accordingly I will disregard the evidence in those 2 affidavits.  In any case, the contents thereof contain nothing new. 

FACTS

4.  The Property is registered in the name of one Madam Lam. 

5.  In 2000, the Plaintiff had lived in the Property as a tenant of one Sean.  In about early 2003, the Plaintiff purchased the Property from him at a price of $100,000.  Since then, the Plaintiff had been living there as an owner.  Most of the neighbours and friends had known her for years and recognized her as the owner of the Property.

6.  The Plaintiff was married in 2007.  She and her husband have been living at the Property.

7.  It is not in dispute that on 27 June 2008, the Plaintiff leased the Property to Madam Lilburn for one year from 1.09.2008 to 1.09.2009 with a monthly rent of $3,000.  Madam Lilburn duly moved into the Property and occupied one room.  The Plaintiff also lived there, sharing common facilities with her.

8.  For reasons that were immaterial, the tenancy agreement was terminated prematurely.  The Plaintiff’s husband paid $3,000 to Madam Lilburn for it.  Madam Lilburn, however, says that it was because she sued the Plaintiff for return of the rental deposit and the Plaintiff’s husband offered her $3,000.  Anyway, Madam Lilburn lived in the Property for about a month and moved out by early November 2008.  Again, these facts are not disputed.

9.  Whilst Madam Lilburn was in occupation, she unilaterally changed the particulars of the addressee for bills for government rent and rates and utility.

10.  In February 2010, the Plaintiff and her husband went to Canada temporarily for the purpose of medical treatment.  She kept one set of keys and gave another set to her friend Singsorn.  The Plaintiff asked Singsorn to take care of her 3 cats until her return.

11.  According to the Plaintiff’s neighbour, Madam Lilburn broke into the Property in September 2010 and moved the Plaintiff’s furniture and personal assets to a shed.

12.  In January 2011, the Plaintiff discovered Madam Lilburn’s occupation through a friend (Greg) who visited Hong Kong.  Greg was authorized to live at the Property but he could not gain entry.

13.  On 6 February 2011, the Plaintiff demanded Madam Lilburn to return the Property.  Madam Lilburn refused and even called the police.

14.  Despite 2 written demands, and personal attendance of the Plaintiff’s friend and other persons at the Property, the Plaintiff was unable to recover possession. 

15.  The Plaintiff claims that throughout the years no one had objected to her possession or claimed possession from her.   Nor, according to what Sean told her, had anyone objected to his possession or claimed possession from him

16.  In the summer of 2007, some people visited the Property.  One of them told the Plaintiff that his mother was the owner of the Property and had passed away some time ago.  He raised no objection to the Plaintiff’s possession and complimented her on how well the Property looked. Since then, those people had never returned.  The Plaintiff claimed that she only learnt of Madam Lam being the owner through her former solicitors in February 2011.  The current solicitors have done a probate search but could not find any grant of probate or letters of administration in respect of the estate of Madam Lam.

Madam Lilburn’s Case

17.  Madam Lilburn does not deny that there once was a tenancy governing her relationship with the Plaintiff.   How she came into occupation of the Property was not clear from her affidavit.  She says when she first met the Plaintiff she was told that the Property was abandoned and the Plaintiff managed to be the owner.  She made enquiries with the Rating and Valuation Department which alerted her to outstanding rates and legal costs incurred at the Small Claims Tribunal to the amount of over $47,000.  She was told that if she paid all, they would issue a certificate saying that she had a right to stop the tribunal case.  Madam Lilburn paid part of the rates and costs by instalments.  She also spent money in cleaning and painting the Property.  In defence: (i) She challenges the Plaintiff’s ownership; and (ii) She says she has authority of the Rating and Valuation Department to reside at the Property.  It was she, and not the Plaintiff, who was the occupier there.

ANALYSES

18.  I am satisfied that the Plaintiff had been in continuous possession of the Property for 10 years as at the date of the originating summons, although she has not yet acquired title as a squatter. 

19.  She went into possession prior in time to Madam Lilburn, as evidenced by the payment of rates and government rent from July 2005 to September 2007.  There was also the evidence from her neighbour Mr Tam.

20.  Her intention to continue residing at the Property was evidenced by the fact that she had not removed her cats, personal belongings and personal papers (such as the marriage certificate) from the Property whilst she was away in Canada.   

21.  By signing a tenancy agreement, Madam Lilburn acknowledged and confirmed that the Plaintiff was the landlord. 

22.  The Plaintiff clearly has a superior title over Madam Lilburn.  In Megarry & Wade The law of Real Property, 7^th ed, para 4-004, it is said that:

“Possession by itself gives a good title against all the world, except someone having a better legal right to possession. This last proposition is fundamental to the concept of title to land. If the occupier’s possession is disturbed, for example by trespass or nuisance, he can sue on the strength of his possession and does not have to prove his title. It follows that the person disturbing the occupier’s possession cannot attack his title, if he admits his possession; in the language of pleading, a defendant sued for trespass in such a case cannot plead jus tertii (that the land belongs to some third party, not to the claimant).”

23.  There is no basis for Madam Lilburn to say that the Rating and Valuation Department authorized her to reside at the Property. That Department did not own or possess the Property, or have authority over its use.

24.  An Order 113 application is for clear and obvious case. The Plaintiff clearly has a superior or better title than Madam Lilburn.  Neither defence is sustainable.  Vacant possession ought to be given to the Plaintiff.  The appeal is dismissed.

CONCULSION

25.  I order as follows:

(i) The legal aid stay be uplifted.

(ii) No leave is granted for the filing of the affidavits of Madam Lilburn dated 22 and 28 June 2011.

(iii) The appeal is dismissed.

26.  Costs should follow the event and be to the Plaintiff.  I have considered the costs statement produced by the Plaintiff’s solicitors.  This appeal is simple.  Arguments are but a re-run of those before the Master.  There is no need to engage a very senior solicitor to handle it. There has been an adjournment on 5 July 2011 due to Madam Lilburn’s application for legal aid, for which costs should be borne by her.  I therefore order that:

(iv) Costs of the appeal be summarily assessed at $35,000, to be paid by Madam Lilburn to the Plaintiff.

27.  The evidence of the Plaintiff was well prepared.  I thank Mr Wong for his assistance.