MARK ALEXANDER SAUNDERSON v. JASON SWIN APOLINARIO

[2022] HKCFI 1844

HCMP 1077/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1077 OF 2021

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BETWEEN

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DECISION

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A.   APPEAL FROM MASTER

1.  The Plaintiff appeals against Master Kent Yee’s Order dated 22 October 2021 providing that the Plaintiff’s action for possession under Order 113 of the Rules of High Court (“RHC”) be continued as if begun by writ pursuant to Order 28, Rule 8 of the RHC.

2.  The parties agree that the appeal should proceed by way of rehearing of the Plaintiff’s Order 113 application.

B.   BASIC FACTS

3.  The Plaintiff seeks possession of Flat G, 14/F, Merry Court, 10 Castle Road, Hong Kong along with a ground floor parking space at the same development (together “the Property”).

4.  It is undisputed that the Plaintiff and the Defendant were in an intimate relationship for at least a decade, cohabiting in a number of residences, including the Property.

5.  It is also undisputed that the Property is held exclusively in the Plaintiff’s name, and that it was purchased from the proceeds of sale of a Bonham Road property that belonged entirely to the Plaintiff.

6.  Both sides accept that: (1) the parties’ relationship broke down several years ago; (2) the Plaintiff moved to the Philippines in 2020; and (3) despite being asked by the Plaintiff’s solicitors to move out in April 2021, the Defendant has continued to reside in the Property.

C.   PRINCIPLES ON ORDER 113

7.  Order 113, Rule 1 of the RHC provides that:

“Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings must be brought by originating summons in accordance with the provisions of this order.”

8.  The originating summons procedure under Order 113 enables the Court in proper cases to deal with possession claims summarily and more swiftly than it would otherwise be able to.

9.  Consistent with the summary nature of the jurisdiction, it is well-established that:

(1) Order 113 is for clear cases only.

(2) If the case is a clear one, the mere fact that the defendant has contested it is immaterial.

(3) The test is essentially whether the issue(s) between the parties, be they on fact or law, are such as to entitle the defendant to a trial.

(4) If on analysis of the issue(s) the matter is only capable of determination one way (favouring the plaintiff) then it is proper for the Court to exercise its power under Order 113 regardless of how vigorously the defendant opposes this.

(5) The approach under Order 113 is akin to that under Order 14.

See the judgment of the Court of Appeal (Nazareth VP, Liu and Leong JJA) in Direk Mahadumrongkul v Lau Chun Keung & Ors CACV 133/1998, unrep. 16 October 1998 at p.7, citing Godfrey J (as he then was) in Vipac Engineers & Scientists Ltd v Karpovich [1989] 2 HKC 358 at 359H; see also the more recent judgment of Keith Yeung J in Karupayee Ammal v Moorthy Selvaraj [2020] HKCFI 289 at §§26-30.

10.  As emphasised in §29 of Karupayee Ammal (above), it is “obviously correct” that “where cases raise issues of both fact and law which cannot be properly investigated without proper pleadings and following a trial, the Order 113 procedure will be inappropriate”.

11.  The parties agree in this regard that, if it can be shown on the available evidence that there are genuine or substantial issues of fact arising from an application under Order 113 which require adjudication at trial, the Court has the discretionary case management power under Order 28, Rule 8 to order the proceedings to continue as if begun by writ: Mutual Luck Investment Ltd v Chiu Yim Man [1999] 3 HKC 400 at 402H-I; Direk Mahadumrongkul (above) at p.8.

D.   ISSUES FOR TRIAL?

12.  As noted in Mr Sakhrani’s lucid submissions for the Plaintiff, his client’s affidavit evidence duly identifies (per Order 113, Rule 3) the circumstances in which his possessory claim arises, including his interest in the Property and how the Property is said to be occupied without licence or consent, and confirms that the Plaintiff is unaware of any person occupying the Property who is not named in the summons.

13.  The Defendant has on the other hand filed affirmation evidence in support of his case that, in the course of discussions between the parties prior to the Property’s acquisition, they formed a common understanding that the Property was to be treated as co-owned by them, despite being held only under the Plaintiff’s name (“the Alleged Common Intention”).

14.  The Defendant further deposes to subsequent discussions between the parties shortly after the purchase of the Property that are (he says) consistent with the Alleged Common Intention, and contends with reference to a range of matters – including certain financial contributions towards various aspects of their shared life – that he acted in detrimental reliance upon his discussions with the Plaintiff and representations allegedly made by the Plaintiff to him along with the Alleged Common Intention.

15.  The Defendant contends that in such circumstances the Plaintiff’s claim for possession is subject to and effectively answered by the Defendant’s interest in the Property based on constructive trust and / or proprietary estoppel.

16.  The evidence filed by the parties gives rise to a number of significant issues, which Ms Leung for the Defendant helpfully summarised as being:

(1) Whether there were discussions or other dealings or arrangements which gave rise to the Alleged Common Intention, or promises / representations / assurances made by the Plaintiff to the Defendant in relation to an interest in the Property at the time of acquisition.

(2) Whether there were further discussions between the parties relating to the finances of the Property.

(3) Whether the Defendant had acted detrimentally in the belief that he had, or that by doing so he would acquire, a beneficial interest in the Property.

(4) Whether the Defendant is beneficially interested in the≥ Property on the basis of a common intention constructive trust and / or proprietary estoppel, and if so the extent of his beneficial interest.

17.  While not disputing that such issues arise from the parties’ evidence, Mr Sahkrani for the Plaintiff resisted the claim that these were triable issues that were capable of being resolved in favour of the Defendant in defence against the Plaintiff’s possessory claim.

18.  In my view, the Defendant is entitled to a trial of the issues arising from the evidence before me, taken in the round and in the light of the established principles on Order 113:

(1) The factual issues are such as to merit full consideration by way of trial, taking into account matters such as the nature and quality of the parties’ relationship at the material times, the wider patterns of their domestic and other arrangements, their credibility, and the extent to which their rival accounts are corroborated by contemporaneous documents and third parties.

(2) While the Defendant’s current version of events and evidence may not stand out (at first blush) as particularly cogent and compelling, I am at this stage unable to say that his case is frivolous, fundamentally contrary to the available documentary evidence or otherwise incapable of belief. Nor do I consider, as things presently stand, that the assembled materials add up to a “clear case” on the part of the Plaintiff warranting an order for possession – and with it the eviction of the Defendant from his home of many years – on a summary basis without trial.

(3) On the law, I have considered the Plaintiff’s invitation to distinguish and segregate the question of the Plaintiff’s entitlement to possession of the Property and that of the Defendant’s beneficial interest (if any) in the same. At this juncture I am not persuaded that there is a sound legal basis for such a distinction and approach in the context of this case. In my view, the Defendant’s contrary stance – that his claims of trust and / or proprietary estoppel are in this case inextricable from the Plaintiff’s possessory claim – is at the least properly arguable and merits further attention at trial.

19.  In sum, there are substantial issues in dispute between the parties and it is just and fair that these issues be resolved at trial.

E.   PROCEEDINGS TO CONTINUE AS IF BY WRIT

20.  Given the nature and extent of the issues for trial, I agree with the learned Master that an order should be made under Order 28, Rule 8 for the proceedings to continue as if begun by writ.

F.   DISPOSITION

21.  For the reasons above, the Plaintiff’s appeal is dismissed with an order nisi that costs be to the Defendant to be taxed if not agreed.