LAM WAI v. LIN SHIN-CHONG

DCCJ 1353/2003

J U D G M E N T

1. This is an appeal from Master K W Wong in respect of an order made by him on 20 October last.

2. What the master had before him on that occasion was a checklist review hearing and in the course of that hearing the plaintiff solicitors were asking for an order enabling them to put in expert evidence, firstly, as to the value of the property concerned - and I will come to that in a moment - and also the rental value of the property from the data of the death of the deceased in November 1992 until the present time.

3. The defendant’s stance was that having regard to the issues raised in the pleadings no expert evidence was necessary in this matter.

4. The master seems to have adopted a middle position by allowing the parties to call expert evidence of the rental value for a period going back to 1997 - so a period of six years - and it is from that order that the plaintiffs now appeal.  The precise terms of the order that they now seek appears in the notice of appeal.  But the main point is that they would wish the court to allow them to call expert evidence as to the rental value going back to the death of the deceased on 3 November 1992.

5. The history of the matter I think I can state very shortly, and it is this:  the deceased was a man of some financial substance.  He had invested in property, both in mainland China and in Taiwan and indeed in other places as well.  The plaintiff is his adopted daughter.  The defendant is a natural son of his.  He had a number of children as a result of a relationship with a number of women.

6. The way the matter comes about is as follows:  the defendant, by his will, left the property, which is a flat in Lam Tin, to the plaintiff and by this action she seeks to give effect to what she says was the deceased’s wishes as appear under the terms of his will.  The defendant is living there and he, of course, refuses to move out. 

7. The history of the matter as to how he has come to live there - and he has lived there for a very long time - appears in his affirmation and what the defendant says is that it must be clear from the facts of this matter that whilst the deceased left the property to the plaintiff, it must have been subject to the defendant’s rights to continue living there for as long as he wished.

8. So the court, when the matter is tried, is going to have to enquire very carefully into the precise circumstances of all of this and determine where the truth lies.

9. That inevitably will call for an analysis, both of fact and law, and Mr Lin now says that when one comes to look at the prayer in the statement of claim, part of the relief that is sought by the plaintiff is a claim for mesne profits for the period since the death of the deceased until the date of trial.  One simply cannot establish that unless there is expert evidence as to the rental value of this property throughout that period. 

10. Mr Tam says that as we are in the District Court and if one goes back just six years, the rental value which the plaintiff’s expert places as a total comes to $834,000, and those reports were prepared when the District Court’s jurisdiction was $600,000, so he makes the perfectly reasonable point that that is more than enough.

11. Now, of course, since the day before yesterday the jurisdiction has gone up to $1 million but it is quite clear that if one calculates back, the $1 million jurisdiction will be passed by going back perhaps for another two years or so and certainly not back to the date of the testator’s death in November 1992.

12. Be that as it may, Mr Lin says that that is not the only reason why I should go back to 1992, because one of the issues which is raised on the pleadings is the question of proprietary estoppel which calls for a balancing exercise.  The court will be asked to determine, by looking at all of the evidence, the relative benefits passing between the two parties.

13. Mr Lin has put in certain passages in a book by Mr Mark Pawlowski, The Doctrine of Proprietary Estoppel, which seems to point to a requirement on the court to embark on that sort of balancing exercise.  Mr Tam says that clearly is not the right approach and one can safely ignore these sort of considerations.

14. For my part, I have come to the view that this sort of evidence, going right back to 1992, is going to be extremely helpful to the court, firstly, because it will provide a full picture of the benefits that the defendant has received since the will took effect on the testator’s death and the court will secondly, have a much fuller picture of the sort of financial benefit that will have been received by the defendant and will therefore be able to do proper justice as between the parties.

15. For my part, I take the view that that is an order that should be made with the consequence that the master’s order will now be set aside, the appeal will be allowed and subject to anything that Mr Tam may want to say, I would have thought that the order which is proposed in the notice of appeal would be a perfectly reasonable order.