TSE MEI LING ( 謝美玲), administratix of THE ESTATE OF TSE TUNG YAU ( 謝東祐) v. 謝達德 AND OTHERS

DCMP 1283/2020

[2021] HKDC 1537

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1283 OF 2020

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DECISION

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1.  There are two applications before the court:-

(i)  the 1^st, 2^nd, 3^rd and 4^th defendants’ application dated 1 April 2021 to set aside or vary the Order for Possession (the “defendants’ application”); and

(ii)  the plaintiff’s application dated 17 September 2021 to amend the description of the 2^nd defendant, the 3^rd defendant and the 4^th defendant in the Originating Summons and Possession Order (the “plaintiff’s application”).

Background

2.  This case concerns a property, namely Nam Pin Wai Lot No. 133 in D.D. 115, Yuen Long, New Territories (the “Property”).

3.  The plaintiff, the 1^st defendant were 2 of the 6 children of Tse Tung Yau (“Father”, the paper owner of the Property) and Madam Cheng Fook Ho (“Mother”).

4.  They all grew up in an old family house on the same site of the Property.  The old house was demolished and replaced by a 3-story house in 1970s.

5.  Over the years, all the children (the last leaving in 2004) other than the 1^st defendant left the Property.  The 2^nd defendant married the 1^st defendant in 1997 and moved into the Property, and the 3^rd and 4^th defendants are their children.

6.  Father died intestate on 18 February 1997.  After 2004, only the Mother and the family of the 1^st defendant lived in the Property.

7.  The Mother left the Property to reside in an elderly home in around 2013.

8.  The plaintiff is the administratrix to the Father’s estate.  On 11 May 2020, the plaintiff issued the Originating Summons in the current case and an Order for Possession was made by Master Jacqueline Lee on 5 March 2021.  The 1^st, 2^nd and 4^th defendants were present at the hearing acting in person.

9.  The defendants’ application was taken out on 1 April 2021 to set aside the Order for Possession, supported by the 1^st defendant’s 2^nd Affirmation (“D1’s 2^nd”) and the 2^nd defendant’s Affirmation (“D2’s 1^st ”).  In opposition, the plaintiff filed and served the plaintiff’s 3^rd Affirmation (“P’s 3^rd”) and the 1^st Affirmation of Tse Chong Shing Daisy (“Daisy’s 1^st”).  The 1^st, 2^nd, 3^rd and 4^th defendants filed and served the 1^st defendant’s 3^rd Affirmation (“D1’s 3^rd”) in reply.

10.  In view that D1’s 3^rd raised that the names of the 2^nd, 3^rd and 4^th defendants were miswritten in the Originating Summons, the plaintiff’s application was taken out on 17 September 2021 for leave to amend such names, and for leave to adduce the plaintiff’s 4^th Affirmation (“P’s 4^th”) and the 2^nd Affirmation of Service of Law Chun Hung (“Law’s 2^nd”) in support of the plaintiff’s summons and also in opposition to the defendants’ summons.

11.  The 1^st, 2^nd, 3^rd and 4^th defendants (“the defendants) opposed the plaintiff’s applications but also sought leave to put in two further affirmations both dated 20 September 2021: the 2^nd defendant’s 2^nd Affirmation (“D2’s 2^nd”) and the 3^rd defendant’s Affirmation (“D3’s 1^st”).

The plaintiff’s application

12.  The application was to amend the names of the 2^nd defendant from 楊金蓮 to 楊金連 ，the 3^rd defendant from 謝頴儀 to 謝詠如, and 4^th defendant from 謝頴康 to 謝詠康 on the originating summons and the Order for Possession.

13.  There is no dispute that these amended names are the proper names of the 2^nd, 3^rd and 4^th defendants.

14.  The plaintiff explained the mistake (in P’s 4^th ): the plaintiff used 楊金蓮 as the name of the 2^nd defendant in previous proceedings regarding the guardianship of the Mother and although the proper names of the 3^rd and 4^th defendants were quoted in the social enquiry report, she did not trust the report because there were mistakes regarding names of other family members.

15.  I see no good reason why the defendants should oppose the plaintiff’s application.

16.  Indeed, the defendants’ counsel, Mr. Brian Lo, did not put up any serious challenge but only made a rather farfetched allegation that the mistakes were “not genuine” because the plaintiff aimed to “mislead” the defendants.

17.  There was no logical basis to this allegation: if the plaintiff deliberately miswrote the names of the 3^rd and the 4^th defendants (and yet gave the correct name of the 1^st defendant in the same court document) in order to “mislead” the defendants, what was the plaintiff trying to mislead the defendants about and how would miswriting the 3 names achieve that?

18.  Mr Lo did not provide any answer to that.  In any case, the 1^st, 2^nd and 4^th defendants did attend the hearing for the Order for Possession so they were clearly not misled by any miswriting of their names.

19.  As such, I find that the miswriting of the names was clearly a genuine mistake and would therefore allow the plaintiff’s summons under Order 20 rules 7, 8 and 11 of the Rules of District Court and the court’s inherent jurisdiction.

20.  I would also allow the defendants to adduce D2’s 2^nd and D3’s 1^st so that all the evidence would be available to the court.

The defendants’ application

21.  In essence, the defendants raised two grounds in support of their application:

(i)  There were new grounds of defence: proprietary estoppel and an alternative case of adverse possession.  These were not raised before the Master because the defendants were not legally represented at the time.

(ii)  Service on the 3^rd defendant was irregular.

New grounds

Legal principles

22.  Order 113, rule 8 provides that “the judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order.”

23.  Paragraph 113/8/12 of the Hong Kong Civil Procedure 2021 provided the following comments:-

“It should be emphasized that a final order for possession made before a master in proceedings under this Order may be the subject of an appeal to the judge in chambers (O.58, r.1) and that a final order for possession in proceedings under this Order may of course be made the subject of an appeal from the judge (see High Court Ordinance (Cap. 4) ss. 13 et seq.). Whether a party aggrieved by a final order for possession made by a judge should apply or first apply to set it aside or to vary it, or should appeal, may perhaps depend upon whether it is contended that there are fresh grounds or material for altering decision of the court at first instance, in which case the application should be to that court to set it aside or vary it or that the decision of the court which made the order was wrong in which case the application should be by direct appeal.”

24.  I agree with the commentary: the Order for Possession made by a Master can be subject for an appeal to a judge:

(i)    if there were “fresh grounds or material” that, if available before the Master, the decision might be altered, then the application should be made under Order 113 rule 8, and if raising such “new grounds or material” of defence carries “a real prospect of success”, then the judge can set aside or vary the order; and alternatively

(ii)   if it was contended that the decision of the order made the Master was wrong (on the grounds and materials available before the Master), the appropriate application should be in form of a direct appeal to a judge in chambers under Order 58, rule 1.

25.  The defendants’ application under Order 113 rule is therefore appropriate.

26.  In the setting aside application under Order 113, the Court consistently applies the standard in the setting aside of a default judgment as to merits, ie whether the defence carries a real prospect of success (or whether the defence “could well be established”) at trial, ie not merely arguable but carries some degree of conviction: Kwong Shook Ling (as sole executrix of the estate of Yu King Kwok, deceased) v The Occupants of Lot No. 841 in Survey District No. 3, Sai Kung, New Territories & Anr, HCMP 2859/2003 and Gotland Enterprises Limited v Kwok Chi Yau & Others HCMP 4550/2003.

27.  These legal principles are not disputed between the parties.

28.  However, the plaintiff objected on the basis that these are not “new grounds”: the evidence was present at the time of the hearing so the arguments of proprietary estoppel and adverse possession should have been raised before the Master, and the lack of legal representation is not an excuse.

29.  I do not agree: the defence of proprietary estoppel and adverse possession are certainly new or “fresh grounds” of defence because they were not raised by the defendants during the hearing before the Master.

30.  There must be a distinction between the grounds of defence and the evidence that supports such grounds: here, the grounds for defence are “new” but the evidence in support is not “new”.

31.  I do not think that this must necessary be fatal to the application: I cannot see why the court must only take new evidence (that is, evidence having come about by “a change of circumstances since the order is made”) as having “a real prospect of success”.  That cannot be the test.

32.  Instead, the court should look at all the circumstances of the case, including whether the evidence was “new”, and, if not, whether there was a credible explanation of the party not presenting “old and existing” evidence at the previous hearing.  These are amongst the circumstances that the court needs to assess in determining whether there is “a real prospect of success”.

33.  The explanation raised by the defendants is that they did not have legal representations at the time and they were not aware of these grounds of defence, so they did not tell the court about those evidence.  In effect, the defendants were not aware of the significance or relevance of such evidence.

34.  I do not find this explanation so unreasonable or incredible that it carries “no real prospect of success”.  I would imagine that a layperson may not be aware or understand the legal concept of proprietary estoppel and adverse possession, so they did not think that the evidence (eg of the Mother funding the construction of the new house, and of the defendants providing HK$300,000 towards the renovation of the new house etc) was relevant to be raised before the Master.

35.  There has been a large amount of evidence before the court. For example, regarding the alleged funding of the construction of the new house first raised in D1’s 2^nd (paragraph 7, Hearing Bundle page 65) which was disputed by the plaintiff in Daisy’s 1^st (paragraph 11, Hearing Bundle page 77) and P’s 3^rd (paragraph 17, Hearing bundle page 89), and the 1^st defendant countered this in D1’s 3^rd (paragraphs 15 to 18, Hearing Bundle page 100 to 101).  It is clear that there are very substantial disputes with each producing their own supportive evidence and arguments.

36.  This is just one example, similar “to-and-fro” arguments were presented in various affirmations concerning other factual disputes, eg the contribution to the renovation of the new house, and what Mother or father promised at various points of time.

37.  I note that in his Skeleton Argument, Mr Aidan Tam, counsel for the plaintiff, made very lengthy submissions on such evidence, even resorting to arguments of inconsistent statements.  I am of the view that these issues are best left to cross-examinations at trial.

38.  As with the application for setting aside a default judgment, the court is not to conduct a mini-trial on affidavits.  What is clear is that there are very substantial factual disputes between the parties and the defendants have raised grounds and evidence which carries “a real prospect of success”.

39.  I am of the view that if such grounds or material were presented before the Master, the decision would have been different.

40.  The plaintiff further argued that, in general, a defendant who had his time in court can only seek the variation or discharge of an order before the order is sealed or otherwise perfected, after which the remedy is to lodge an appeal.

41.  I am of the view that the commentary on Order 113, rule 8 (as stated above) clearly identifies two pathways depending on whether there are fresh grounds or materials or whether the contention is that the decision is wrong.  Further, the wordings of Order 113, rule 8 give a wider discretion to the judge.  It does not specify any time limit for making such an order, but only “on such terms as he thinks just”.

42.  I would think that the intention behind Order 113, rule 8 was that since an Order for Possession could have such serious consequences that the court should be careful that it has considered all reasonable grounds and materials before making that order to ensure that the decision was just.

43.  Obviously, any substantial delay in making an application under the order, and any explanation of such delay, are some of the considerations of what is “just” under the circumstances.

44.  In this case, the Order for Possession was made on 5 March 2021 and the present application under Order 113, rule 8 was made on 1 April 2021.  I do not find any substantial delay as such.  The main consideration before me, as stated above, is that the state of evidence presented suggests that there are substantial factual disputes which need to be resolved at a trial, and so it is just to order so.

Irregular service on the 3^rd defendant

45.  It was raised for the first time in D1’s 3^rd that the 3^rd defendant went to Taiwan for her studies in 2016, and that the 1^st defendant did not pass the court documents to the 3^rd defendant because of the miswriting of name.  D3’s 1^st is also in support of this position that she was in Taiwan and had not seen the court documents.

46.  I find this incredible: the 1^st, 2^nd, 3^rd and 4^th defendants were all occupants of the Property and the 1^st, 2^nd and 4^th defendants clearly know that they were sued as occupants, and yet the 1^st defendant now claimed that he did not know that the 3^rd defendant was being sued because of a miswriting of her name on the court document and so did not bring her notice of the Originating Summons.

47.  Further, at the hearing on 5 March 2021, the 1^st and 2^nd defendants informed the Master that the 3^rd defendant was their daughter who knew about the hearing.  No reasonable explanation was advanced as to why the 1^st and 2^nd defendants chose to mislead the court at the time.

48.  It is trite that the test for service by registered mail is whether it had been brought to the defendant’s notice.

49.  As such, I am of the view that this ground does not have “a real prospect of success”.

50.  However, this would not matter given my decision regarding the first ground.

Order

51.  I would therefore make the following orders:-

(i)  Leave for the plaintiff to amend the Originating Summons issued on 11 May 2020 and the Order for Possession made by Master Jacqueline Lee dated 5 March 2021 in the manner as shown in red as per the draft annexed to the Summons of the plaintiff dated 16 September 2021 and the descriptions of the 2^nd, 3^rd and 4^th defendants in all subsequent court documents be deemed to have been as amended accordingly;

(ii)  the Order for Possession made by Master Jacqueline Lee dated 5 March 2021 be set aside with directions for the proceedings to be continued as if begun by writ and for trial; and

(iii)  There be cost order nisi for the costs of the plaintiff’s application be to the plaintiff to be taxed if not agreed, with certificate for counsel; and for the costs of the defendants’ application be to the 1^st, 2^nd, 3^rd and 4^th defendants to be taxed if not agreed, with certificate for counsel.