HCA 1206/2015
[2020] HKCFI 1680
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1206 of 2015
________________________
BETWEEN
CHAN WAI YEE
Plaintiff
and
KWONG WAI PIU, the Administrator of the
Defendant
Estate of WONG CHIN also know as
KWONG WONG CHUN (or GINE), DECEASED
________________________
Before:
Deputy High Court Judge To in Court
Date of Trial:
29, 30 June and 3 July 2020
Date of Judgment:
31 July 2020
_______________
J U D G M E N T
_______________
Introduction
1. This is the trial of the plaintiff’s (“Plaintiff’s”) claim for adverse possession of a residential unit in Happy Mansion in Causeway Bay (the “Property”).
2. The Plaintiff had previously obtained default judgment on 18 October 2017 against the registered owner of the Property Ms Kwong Wong Chun who had passed away on 10 December 1974 (the “Deceased”). That judgment was set aside by Deputy High Court Judge Kent Yee on 17 January 2018 upon the application of the Deceased’s son (the “Defendant”) as the administrator of the estate. Leave was granted to the Defendant to be substituted as the defendant in this action.
3. In brief, the Plaintiff’s case is that the Defendant had abandoned the Property since 15 April 1980; and the Plaintiff and her family have been in adverse possession of the Property for over 30 years since.
4. In essence, the Defendant’s case is that the Plaintiff’s father and his family, including the Plaintiff, had occupation of the Property as his tenants under tenancy agreement until 14 April 1980 and thereafter as his licensees with his consent under two oral agreements up to 14 April 2010. Time does not run against him until 15 April 2010. The period of limitation has not expired by the time the Defendant filed his counterclaim for possession of the Property and mesne profit.
The background
5. The Deceased acquired the Property in January 1962. In April 1968, the Defendant leased it on behalf of the Deceased to the Plaintiff’s father under an oral tenancy at a monthly rent of $250. Up until April 1980, the Defendant personally attended the Property on regular basis to collect rent and issued rental receipts. The receipts were signed by the Defendant as agent of the Deceased. That practice continued despite the death of the Deceased in 1974. For reasons which are in dispute the Defendant ceased collecting rent after 14 April 1980.
6. The Plaintiff’s father advertised a notice in Sing Tao Newspaper for three consecutive days on 15 to 17 August 1980 looking for the Defendant. The Defendant did not respond.
7. The Plaintiff’s father renovated the Property in about 1983.
8. The Plaintiff’s husband moved into the Property in 1985. The Plaintiff’s daughter was born in 1986. The Plaintiff became a full time stay‑home‑mom since. The family continued to live in the Property.
9. Two Orders issued by the Building Authority under the Buildings Ordinance on 8 September 1995 and 9 November 1995 were registered against the Property at the Land Registry on 22 November 1995 and 30 January 1996. Letters of Compliance dated 4 June 1996 were issued by the Building Authority and registered against the Property on 10 August 1996, indicating that the Orders had been complied with.
10. In 2005, the Plaintiff’s father passed away.
11. In 2015, a property developer made offers to owners of Happy Mansion to purchase their units. The Defendant was informed of the offer and sought legal advice. He applied for administration of the estate of the Deceased. Because of requisitions raised by the court, it was only until 18 October 2017 that the letters of administration were issued.
12. In the meantime, on 1 June 2015, the Plaintiff commenced this action. She obtained judgment by default against the Deceased on 18 October 2017. Coincidentally, that was the very date when the Defendant obtained the letters of administration.
13. On 6 December 2017, the Defendant took out a summons seeking to set aside the default judgment. On 17 January 2018, Deputy High Court Judge Kent Yee set aside the default judgment.
14. At all times, the Defendant settled the rates and property tax charged in respect of the Property.
15. For the period when the Plaintiff was in occupation until commencement of this action, the Plaintiff settled all utilities bills. She also settled management fees during this period except for the period from October 2014 to June 2016, which were settled by the Defendant.
The Plaintiff’s case
16. The Plaintiff’s case is that from 1968 to 1980, her father had possession of the Property as a monthly tenant of the Deceased and paid her rent monthly through the Defendant as her agent. On 19 March 1980, her father last paid two months’ rent up to 14 April 1980. The tenancy expired on 15 April 1980. Thereafter, for no reason, the Defendant ceased collecting rent. Neither the Defendant nor the Deceased visited the Property or demanded rent from the Plaintiff’s family. The Plaintiff’s father made various attempts to locate the Defendant, including advertising a missing person notice for three consecutive days in August 1980 in Sing Tao Newspaper looking for the Defendant, but the Defendant did not respond.
17. In 1983, the Plaintiff’s family renovated the Property and changed the locks of the main door and gate and treated the Property as their own. All along, the Plaintiff’s family enjoyed uninterrupted occupation of the Property without any interference from the Defendant or the Deceased or anyone else.
18. In 1992, the Plaintiff and her father arranged for another renovation of the Property. After the Plaintiff’s father and mother passed away in 2005 and 2012 respectively, the Plaintiff, her husband and daughter continued to reside in the Property without interruption from the Defendant or the Deceased.
19. There was an on-going offer of acquisition of units in Happy Mansion. Some owners sold and moved out. The building became deserted. For security and hygiene reasons, the Plaintiff and her family also moved out but she kept some furniture in the Property and kept the Property under lock and key.
The Defendant’s case
20. The Property was in a dilapidated condition and for want of repairs in 1980. The Plaintiff’s father demanded renovation and altering the layout of the balcony. The estimated cost was about $36,000. The Defendant did not have the money and entered into an oral arrangement under which the Defendant would allow the Plaintiff’s father’s family live in the Property rent free for 15 years up to April 1995 in return for the Plaintiff’s father paying the renovation costs (the “1st Oral Agreement”).
21. In 1995, around the time when the 1st Oral Agreement was coming to an end, the Defendant received a Building Order issued by the Building Authority. He went to the Property and proposed new rental of $350 per month after expiration of the 1st Oral Agreement. The Plaintiff’s father did not agree. Then, they entered into another oral agreement under which the Plaintiff’s father and his family may continue to live in the Property for another 15 years up to April 2010 rent free in return for the Plaintiff’s father carrying out the repair works in compliance with the Building Order (the “2nd Oral Agreement”).
22. In 2006, the Defendant visited the Property and learned that the Plaintiff’s father had passed away. He then informed the Plaintiff’s mother about the 2nd Oral Agreement and told her that he would honour the 2nd Oral Agreement and allow her family to stay in the Property until 2010.
23. In 2011, the Defendant visited the Property but could not find the Plaintiff’s mother. Since 2012, the Defendant was in poor health and was not able to reach the Plaintiff’s family. In 2014, the Defendant moved to an elderly home and could not find the Plaintiff’s family to negotiate rental when the 2nd Oral Agreement expired.
24. In 2015, the Defendant was informed of the offer by the property developer. He applied for letters of administration for the purpose of selling the Property. He discovered the default judgment and successfully applied to have it set aside.
The issues
25. There is no dispute that the Plaintiff was in physical possession of the Property since 15 April 1980. The first crucial issue is whether she was in occupation pursuant to the two oral agreements. If not, the second issue is whether she had at any time since 15 April 1980 the requisite intent to possession the Property to the exclusion of the Defendant. The disputes are purely factual. A determination in favour of the Defendant under the first issue would be fatal to the Plaintiff’s action.
26. A minor issue is whether the two oral agreements, if proven, are tenancy agreements or contractual licences. The nature of the documents has a bearing on when adverse possession commenced. In most probabilities, that would be irrelevant. If the two oral agreements are proven, the limitation period has not expired before the Defendant made the counterclaim, regardless whether they are tenancy agreements or licences. If they are not proven, adverse possession is deemed under section 12(1) of the Limitation Ordinance to commence at the expiration of the first year of its commencement unless it has otherwise been determined earlier. If both oral agreements are proven, time would start to run one year after 2015. Limitation period would not have expired. It is only in the rather unlikely scenario that the 1st Oral Agreement is proven but not the 2nd Oral Agreement, that time would start to run one year after 1980. In that scenario, the limitation period would have expired. I shall therefore defer determination on the nature of the oral agreements until I have made a finding about the two oral agreements.
Legal principles on adverse possession
27. The law on adverse possession is well settled and trite. To establish adverse possession, the adverse possessor has to show both the intention to possess the land in question and the fact of exclusive possession for a duration in excess of the statutory limitation period. Under sections 7(2), 17 and 38A of the Limitation Ordinance, the limitation period is 20 years if adverse possession commenced prior to 1991 or 12 years if it commenced after 1991: see Lam Kin Lai v Li Ha Ching[1] .
28. The classic definition of intention to possess is an intention in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as it is reasonably practicable and so far as the processes of the law will allow: per Slade J in Powell v McFarlane [2] J A Pye (Oxford) Ltd v Graham[3] .
29. Factual possession is basically physical control and dealing with the land as an occupying owner might have been expected to deal with it and that no one else had done so: Powell v McFarlane as approved by Lord Browne Wilkinson in J A Pye (Oxford) Ltd v Graham. The Defendant does not dispute that the Plaintiff had factual possession of the Property. The parties’ dispute is whether the Plaintiff’s possession was with the consent of the Defendant which expired on 14 April 2010.
30. The person claiming adverse possession has the burden of proof. The standard of proof is the normal civil standard, ie on a balance of probabilities. Because of the serious consequence of a finding that the title of a paper owner has been displaced by an adverse possessor, the evidence necessary to establish adverse possession must be compelling: see Wu Yee Pak v Un Fong Leung & Others[4] .
31. The paper owner does not have to plead any positive case or call any witness. He is entitled to rely on his paper title. He may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof: see Birkenhead Properties and Investments Limited v Lam Kai Man[5] . He may test the squatter’s case against contemporaneous written documents, incontrovertible documents, in particular those which came into existence before the issue arose are of the greatest importance in assessing credibility: Wong Wai Chi Susanna v Lam Lai Chun & Anor[6] . As always, the test of credibility of a witness is inherent probability.
Credibility of the Plaintiff
32. The Plaintiff is the only witness. She was well-educated up to Form 7 level. She worked as an accounts clerk until 1986 when she became a full‑time‑home‑mom looking after her daughter. Her evidence was simple. It was basically made up of assertions. She adhered to her assertions. However, when her evidence is tested against contemporaneous documents and evidence not in dispute, it is shown to be internally inconsistent and inherently improbable.
33. The lynchpin of her attack on the Defendant’s case relating to the two oral agreements is that her father suffered strokes in 1975, 1994 and 2000. Since his first stroke in 1975, her father’s ability to communicate was seriously impaired. His speech was slurred and difficult to understand. His physical movements were limited. Hence, the Plaintiff said her father could not have made the oral agreements with the Defendant in 1980 and 1995. That is inconsistent with her assertion that her father made every effort to contact the Defendant in April 1980 by making telephone calls and placing advertisement in the newspaper. These were not the type of conduct which someone suffering from slurred speech and limited movements would do. It is also glaringly contradictory to her evidence that her father together with arranged to renovate the Property in 1983.
34. The Plaintiff said she paid all management fees for the Property except for an undefined period when the owners were selling and vacating their units and when there was no management company. Presumably, that was around 2015 when a property developer was offering to buy the units. However, according to the Defendant’s witness, Kwong Ping Kuen (“Kwong”), when he visited the Property on the instruction of the Defendant on 5 June 2016, he found a staff member working in management office who told him that management fees in respect of the Property had long been outstanding. Upon further enquiries from the management company, he was informed that management fees for the period from October 2014 up to June 2016 in the sum of $8,400 had not been paid. Subsequently, he settled them on the instruction of the Defendant. Kwong’s evidence is incontrovertible. Obviously, the Plaintiff was trying to cover up her non-payments in order to improve her case as such non-payment is reflective of a lack of intention to possess the Property.
35. I do not consider the Plaintiff credible and her evidence capable of achieving the very high standard of proof required in a case of adverse possession.
Credibility of the Defendant and his witness
36. The Defendant has filed a witness statement for the purpose of this litigation. However, when opening the defence case, Mr Siu, counsel for the Defendant, informed the court that the Defendant would not testify because of his health condition. Mr Siu produced a medical certificate dated 27 June 2020, certifying that the Defendant is chair bound and suffering from slurred speech. I am satisfied that he has difficulties in speaking and was unable to attend court to testify. Mr Chan, counsel for the Plaintiff, does not seek to invite the court to draw adverse inference against the Defendant for failing to testify, but submits that since no hearsay notice has been filed, the Defendant’s witness statement should not be considered pursuant to Order 38 rule 2A(6) and (9) of the Rules of the High Court.
37. While admitting his failure to serve a hearsay notice, Mr Siu submits that the court, nevertheless, has discretion to admit the witness statement, particularly in the factual circumstances of this case. The Defendant has filed an affirmation for the purpose of setting aside the default judgment which was accepted by the court and the default judgment was granted. The witness statement is just a replication of what the Defendant said in the affirmation.
38. The issue in this case is well defined and the witness statement has been served on the Plaintiff. There could be no surprise to the Plaintiff if the witness statement is admitted or prejudice to the Plaintiff if the Defendant does not testify. But there would be real prejudice to the Defendant if the evidence is not admitted. The Plaintiff may be handicapped in not being able to cross‑examine the Defendant. That could be off-set by testing what the Defendant said in his witness statement against contemporaneous documents, documents and evidence not in dispute, incontrovertible evidence and the Plaintiff’s evidence. In the end, it is all a question of weight. I shall admit this witness statement and constantly remind myself of the need for caution and that the Plaintiff was deprived of the chance of cross‑examination.
39. The Defendant is now 76 years of age residing in a residential care home. As I have found out from his only witness, the Defendant was a Chinese Language Officer before his retirement from the civil service. He should be a person of reasonable education and intelligence. Given his background, his evidence that he thought the Property devolved to him without having to apply for probate is somewhat incredible. His evidence that he did not have funds to renovate the Property in 1980 and to carry out building works in 1995 is a little difficult to believe. So too is his case that he did not find it necessary to reduce the two oral agreements in writing. I would not speculate if he was a spendthrift or if he lacked common sense in the conduct of his affairs. He is certainly a poor manager of his monetary affairs as he never raised a cent in rent for 13 years resulting in his rental income falling far below assessable value for property tax purpose or rateable value for levying rates in respect of the Property[7]
40. The Defendant’s only other witness is his cousin Kwong. Kwong’s evidence was about his settling the outstanding management fees in respect of the Property for the period from October 2014 to June 2016 in the total sum of $8,400. At one stage, it seemed as if his evidence was in dispute. I took extra care in ascertaining his relationship with the Defendant. I was informed that the Defendant was single, had no issue of his own and that Kwong’s family will be beneficiaries to his estate. As it turned out, his evidence is not disputed. I find him credible.
An overall view of the parties’ case: abandonment v oral agreements
41. The Plaintiff’s case is not the typical adverse possession case where the owner does not know or has forgotten about his interest in the property and allowed the squatter to take advantage of his ignorance. Nor is this a case that due to some intervening events such as illness or incapacity, the paper owner was prevented from enforcing his rights over the Property. While there is no dispute that the Defendant ceased collecting rent after 14 April 1980, he had been well aware of his interest in the Property as demonstrated by his settling all rates and property tax in respect of the Property. Under such circumstances, prima facie , there is no ring of truth in the Plaintiff’s case of abandonment.
42. On the other hand, the Defendant is a man of sound mind and good education. He had a good job and good exposure to society. His case that he would automatically become the owner of the Property upon his mother’s death begs belief. Given his stable employment, his evidence that had no means to pay renovation costs and building costs to comply with Building Orders is also hard to believe. Even harder to believe is his evidence that on two occasions he orally agreed to allow the Plaintiff’s father’s family to reside in the Property for two terms of 15 years without reducing the agreements into writing. On one view, all these may seem incredible. On another view, these may reflect the Defendant’s casual nature in dealing with his affairs and his naivety. One fact which supports his case is his continued payment of rates and property tax for the Property which suggests he has never forgotten about his interest in the Property. It is unlikely that he would have forgotten or abandoned his Property. On balance, his case is less incredible than the Plaintiff’s. As a matter of law, the Plaintiff has a heavy burden of proof to discharge.
The advertisement and attempts to look for the Defendant
43. The Plaintiff’s case of abandonment starts with the Defendant’s disappearance and failing to turn up to collect rent since 15 April 1980. In paragraph 14 of her witness statement, the Plaintiff said that her father “made every effort to contact the Defendant by telephone at 440214 but no one answered the calls”. I have commented on the incredibility of this aspect of the Plaintiff’s evidence in the context of her father’s inability to communicate because of his slurred speech. In this present context, her evidence suggests that the Defendant had left his contact telephone number with the Plaintiff’s father.
44. According to the Defendant, the telephone number 440214 was his telephone number at his address in Bonham Strand which he vacated in around 1979 when he moved to Tai Koo Shing and he gave his new address and telephone number H699310 to the Plaintiff’s father. His move in 1979 is supported by the Requisition for Particulars of Tenements in respect of the Property completed by the Defendant dated 30 October 1979 and filed with the Rating and Valuation Department. It showed the Defendant’s address in Tai Koo Shing and his telephone number of H699310. The Defendant’s evidence is highly credible. Being landlord and tenant, the Defendant and the Plaintiff’s father must have maintained each other’s telephone numbers to enable contact in relation to tenancy matters. The Defendant had moved to Tai Koo Shing for a year before the alleged telephone calls were made by the Plaintiff’s father in August 1980. The Plaintiff’s father must have been informed of the Defendant’s up‑to‑date telephone number. The Plaintiff’s evidence that her father rang up the Defendant’s former telephone number was not just a concoction but one made with intent to mislead.
45. The Plaintiff said in paragraph 15(a) of her witness statement that for the purpose of tracing the whereabouts of the Deceased and the Defendant she conducted a land search in respect of the Property at the Land Office on 24 July 1980. The record showed that the Deceased was the owner of the Property. When cross‑examined on why having obtained the address of the Deceased she did not write to her, the Plaintiff was unable to explain. Writing to the Deceased would not have brought the matter to the notice of the Defendant as the Deceased had already died at that time. But the failure to write is indicative of the absence of genuine intention to contact the Deceased or the Defendant.
46. In August 1980, the Plaintiff’s father advertised a notice in Sing Tao Newspaper for three consecutive days looking for the Defendant. This is the established means of bringing legal proceedings to the notice of litigants, but is not the usual or effective means for looking for people. It is usually the last resort. There are better and more effective means such as telephoning the Defendant at the correct number which on my finding was known to the Plaintiff’s father. The Plaintiff’s father was just planting evidence.
47. All in all, I find that the Plaintiff’s evidence about the efforts made by her and her father in contacting the Defendant were either concoctions or were made with the purpose of obtaining no result. These findings cast doubt on the Plaintiff’s evidence about the Defendant’s disappearance since April 1980 and conversely support the Defendant’s case of the 1st Oral Agreement.
The renovation in 1983
48. On the Defendant’s case, it was upon the Plaintiff’s father demand for renovation that he entered into the 1st Oral Agreement. The Plaintiff denied saying that her father could not have entered into that agreement as he had suffered a stroke and his speech was slurred. I have rejected that evidence.
49. It is common ground that the Property had been renovated in 1983. The Plaintiff argues that as this renovation was carried out in 1983, it does not support the Defendant’s case of the 1st Oral Agreement, but is evidence of the Plaintiff’s father’s dealing with the Property as an occupying owner might have been expected to deal with it. In my view, that evidence goes either way. When to carry out the renovation under the 1st Oral Agreement was a matter for the Plaintiff’s father. Having found the Plaintiff’s evidence of abandonment incredible, the balance tilts in favour of the Defendant’s case that the renovation was the performance of the Plaintiff’s father’s part under the 1st Oral Agreement.
The Building Orders
50. According to the Land Register, two Building Orders were issued by the Building Authority against the Property in 1995 on 8 September 1995 and 9 November 1995. The first one was superseded by the second one. The order was issued under section 26 and 28(3) of the Buildings Ordinance, ie in respect of dangerous building works and drainage works respectively. It is also common ground that the Plaintiff’s father caused remedial works to be carried out to the satisfaction of the Building Authority. The Plaintiff argues that the works carried out is evidence of her father’s dealing with the Property as an occupying owner might have been expected to deal with it.
51. According to the Defendant, around the time when the 1st Oral Agreement was coming to an end, ie April 1995, he went to the Property and told the Plaintiff’s father that after the lapse of the 15 years’ rent‑free period he would like to charge rent at the rate of $350 a month. The Plaintiff’s father was reluctant to agree. He also told the Defendant that there was a Building Order requiring renovation to the outer walls and windows of the Property and asked the Defendant to make contribution which was agreed, presumably among all the owners of Happy Mansion, to be $45,000. After some negotiation, they entered into the 2nd Oral Agreement under which the Defendant agreed to let the Plaintiff’s father and his family live in the Property for another 15 years rent free and the Plaintiff’s father agreed to be responsible for carrying out the repair works required by the Building Orders.
52. I note that the first order was issued about five months after the expiry of the 15 years’ rent‑free period alleged by the Defendant. This casts some doubts on the veracity of the Defendant’s evidence. However, as the orders were issued in respect of dangerous building works and drainage works, given the presumably large scale of the works involved and the investigation and enforcement action taken by the Buildings Department, the issue must have been brewing for some time among the owners and occupiers of Happy Mansion before the first order was actually issued. The evidence of the Defendant is not incredible.
53. While denying the Defendant’s pleading in his Defence and Counterclaim about the Building Orders and the making of the 2nd Oral Agreement, the Plaintiff’s pleading in paragraph 8 of her Reply in response is that she contributed to the costs of repairs in the sum of about $12,000 by four instalments. However, she mentioned nothing in support of the above plea in her witness statement. Assuming for her benefit that the pleading represents her evidence as well, the net effect of her evidence on this issue of the 2nd Oral Agreement is a denial of the 2nd Oral Agreement and an admission that costs of repair she contributed to the compliance of the Building Order was $12,000 instead of $45,000. However, whether on her evidence or the Defendant’s evidence, she was not privy to the discussion between her father and the Defendant. What was discussed between them, if in fact such discussion had taken place, is the secret of the dead and the Defendant. Having accepted the Defendant’s evidence about the 1st Oral Agreement, and having formed an unfavourable view of the Plaintiff’s father’s dis‑ingenious efforts in contacting the Defendant and planting evidence, I find the Defendant’s evidence more credible. The Plaintiff’s father was a shrewd and sharp bargainer while the Defendant was a very accommodating person of weak will. Given the property market and the location of the Property, an increase in rent of $100 over 15 years was by no means unreasonable.[8] nd Oral Agreement.
Other renovation works
54. In all fairness to the Plaintiff, in response to the Defendant’s evidence about the 2nd Oral Agreement, she mentioned about her father arranging renovation of the Property in around 1992 and changing the locks on the front door and front gate, which she relied on as evidence of her physical possession and manifestation of intention to possess the Property. That evidence was not disputed by the Defendant. The Plaintiff submits that this is evidence of exclusive possession and quoted some authorities in support of her argument. I do not find it necessary to refer to those authorities. They are findings based on facts of the particular cases. On the facts as I have found in this case, the Plaintiff’s father’s occupation in 1992 was by consent under the 1st Oral Agreement. That conclusively negatives any inference of exclusive possession and intention to possess raised by changing of locks and incurring expenses in renovation. Furthermore, for a long lease or licence of 15 years, renovation costs are more for the occupier’s personal enjoyment of the property. These facts cannot raise the inference submitted by the Plaintiff.
55. There were a number of Building Orders subsequent to the two I mentioned. The Plaintiff said in her witness statement that the highest costs for complying with the Building Orders was a contribution of $30,000 in relation to a Building Order issued on 10 December 2010 under section 24(1) of the Buildings Ordinance in respect of unauthorized building works. That contribution was not challenged by the Defendant. I assume that contribution is also not in dispute. Again, the Plaintiff submits that this is evidence of exclusive possession and intention to possess. I accept that incurring capital expenses in complying with Building Orders is what an owner is expected would deal with his property. However, whether the inference of exclusive possession and intention to possess may be raised depends on all the surrounding circumstances. It is arguable if such inference could be raised in the case of a long lease or licence of 15 years. In any event, there is no need to deal with this issue because on my finding of fact, the Plaintiff’s occupation was by consent under the 2nd Oral Agreement until April 2010. Her occupation without consent thereafter falls far short of the limitation period.
Payment of utility bills and management fees
56. Despite some missing utility bills, I am satisfied that the Plaintiff settled the utility bills in respect of the Property, though she is not the account holder. She argues that this is evidence of what an owner of property is expected to deal with his property. I disagree. These are not capital expenses but recurrent expenses which any occupier of property would have to pay for his use of the property in all events. Settling utility bills are equivocal acts not capable of raising any inference of exclusive possession or intention to possess.
57. As for management fees, there is uncontested evidence that Kwong settled the management fees for the period from October 2014 to June 2016 on the instruction of the Defendant. When cross‑examined about why she did not pay these management fees, the Plaintiff gave a half‑hearted answer that she paid every month, did not know about the outstanding fees and never received any reminders. She had actually moved out of the Property, according to her for hygiene and security reasons. Payment of management fees is an equivocal act connected with use of the Property which is insufficient to raise any inference of exclusive possession or intention to possess. However, non‑payment for such a long time is evidence of her not considering or no longer considering herself to be in possession of the Property.
The Defendant’s visits in 2006 and 2011
58. The Defendant said that he visited the Property in 2006 and learned about the Plaintiff’s father’s death. He told the Plaintiff’s mother that he would honour the 2nd Oral Agreement and allow her family to stay in the Property until 2010. The Defendant also mentioned about his visit to the Property in 2011 but could not find the Plaintiff’s mother. The Plaintiff denied ever seeing the Defendant visited the Property. Her evidence is that since her father’s death, her mother suffered from depression and dementia and shut herself away in the washroom making contact with no one. These visits have no significance. As the Defendant is not available for cross‑examination, I do not find it necessary to make any finding.
Conclusion
59. On my finding, the Plaintiff’s occupation of the Property since the termination of the tenancy on 14 April 1980 was with the Defendant’s consent under the 1st and 2nd Oral Agreements which expired on 14 April 2010. Her occupation was wrongful only since 15 April 2010. The Defendant has commenced his counterclaim for possession of the Property on 21 February 2018 well before the limitation period expires. His title to the Property has not been extinguished.
60. Accordingly, I dismiss the Plaintiff’s action and enter judgment in favour of the Defendant on his counterclaim for possession and mesne profit at the rate agreed between the parties with interest at the rate of one percent above prime rate of The Hongkong and Shanghai Banking Corporation Limited from date of his counterclaim until judgment and thereafter at judgment rate. I also make an order nisi that the Plaintiff shall pay the Defendant’s costs of this action on indemnity basis. Such costs are to be taxed if not agreed.
( Anthony To )
Mr. Sunny Chan, instructed by Eddie Lee & Company, for the Plaintiff
Mr. Patrick Siu, instructed by C. K. Mok & Co., for the Defendant
[1] [2020] HKCFI 751 at §20
[2] [1977] 38 P&CR 452 at 470-471
[3] [2003] 1 AC 419, 445
[4] (2004) 7 HKCFAR 498 at §5 per Chan PJ
[5] HCMP 1588/2012 (unreported, 12 January 2016, at §20
[6] [2020] HKCFI 583 at §§26-27
[7] See footnote 8
[8] According to the Demand for Rates for the quarter ending 30 June 1981, the rateable value of the property was $6,480, reflecting a market rent of $540 per month.