WAN PO JUN MARY PAULINE v. LIU CHAN AND LAM AND ANOTHER

HCA 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10 OF 2010

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D E C I S I O N

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1.  This is an appeal by the plaintiff against an order of Master Lung which struck out the statement of claim and dismissed the action as against both defendants.

Background

2.  The plaintiff used to have an intimate relationship with one Au-Yeung, deceased.  The deceased passed away on 11 April 2008 because of a serious illness.  The deceased left a will dated 18 October 2007.  He made his daughter, the 2nd defendant, the executrix of the will.  He left everything in his estate to his daughter and his son.  The plaintiff claims to be the cohabitee of the deceased and the step-mother of his children.  However, she was not made a beneficiary in the will.

3.  She alleged that the deceased made the will when he was mentally unbalanced and without a clear mind and/or under the undue influence of the 2nd defendant and his signature on the will was different from his usual one.  She filed a caveat with the Probate Registry disputing the validity of the will.  The 2nd defendant then started HCAP No. 19 of 2008 against her.  She filed a defence and counterclaim on 28 November 2008.  Master Levy struck out her defence and counterclaim on 17 June 2009, ordered her caveat to cease to have effect and that the 2nd defendant herein was entitled to apply for a grant of probate of the deceased’s estate.  She then appealed against Master Levy’s decision.  Her appeal was dismissed by Yam J on 19 August 2009.  Her further appeal to the Court of Appeal was dismissed on 6 October 2010.  She said in this appeal that she would be seeking leave to appeal so as to take that matter to the Court of Final appeal.  A grant of probate of the deceased’s estate was issued to the 2nd defendant herein on 10 November 2009.

4.  The plaintiff is living in a flat in Harbourfront Landmark, 11 Wan Hoi Street, Hong Kong.  She has been living there for some years.  The flat is registered in the name of the deceased.

5.  After the deceased had passed away on 11 April 2008, the 2nd defendant, in the capacity of the executrix and trustee of the deceased’s estate and acting through the 1st defendant herein, issued two notices to quit to the plaintiff on 30 April 2008 and 10 December 2009 respectively requiring her to quit and deliver up the flat to the 2nd defendant.  The plaintiff then issued this action against the 1st and 2nd defendants. 

The plaintiff’s claim

6.  The plaintiff pleaded in her statement of claim that the notices to quit were illegal, premature and abusive.  Her grounds were that the 2nd defendant had not obtained the grant of probate, the notices to quit were issued under the ill advice of the 1st defendant, she had a right of equity to stay in the flat and was protected under section 3(1)(ix) of the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 (“the Ordinance”). She sought an injunction to enjoin the 1st and 2nd defendants from issuing further notices to quit to her.

The striking out

7.  Each of the 1st and 2nd defendants issued a summons on 10 February 2010 to strike out the statement of claim under O.18 r.19 of the Rules of the High Court and the inherent jurisdiction of the court on the grounds that the statement of claim discloses no reasonable cause of action, is frivolous and vexatious and an abuse of the process of the court.

8.  The plaintiff filed her third affirmation to oppose the applications to strike out.  She said in the third affirmation that she had a right to live and stay in the flat and was protected under section 3(1)(ix) of the Ordinance.  She also said that the deceased had not evicted her from the flat.  She also denied that she was only living in the flat under a licence granted by the deceased.  She filed a fourth affirmation repeating these points.

9.  Master Lung struck out the statement of claim and dismissed the action on 9 July 2010. 

The appeal

10.  The plaintiff lodged a notice of appeal on 16 July 2010 and filed her fifth affirmation setting out her grounds of appeal. These grounds are a repetition of what she has said in her third and fourth affirmations.  She in addition alleged that Yam J had adjudicated that she had a right of equity to live and stay in the flat and was protected by section 3(1)(ix) of the Ordinance.  This allegation is incorrect. Yam J in a decision dated 11 March 2010 only acknowledged that these were the two claims she was making in another action HCA 1478/2009.  The learned Judge did not make any adjudication as she alleged.  I now deal with this appeal by way of rehearing. 

Analysis

11.  The 2nd defendant, being the executrix of the deceased’s estate, had the power to issue to the plaintiff the notices to quit with a view to repossess the flat which is part of the estate.  She had the power even before the grant of probate to her.

12.  The plaintiff is claiming that she has a right of equity to live and stay in the flat.  She is making this claim in HCA 1478 of 2009.  So far, she has not stated in this action any basis of such alleged equitable right which can affect the 2nd defendant’s power to issue the notices to quit to her.  I do not think she can rely on the assertion of an equitable right to stop the 2nd defendant from issuing to her further notice(s) to quit.

13.  Regarding her claim under section 3(1)(ix) of the Ordinance, if she should be successful in that claim, the court may order under section 4 of the Ordinance the payment of a lump sum and/or periodic payments out of the deceased’s estate to her.  The court may also order the transfer to her of property comprised in the estate or the settlement of such property for her benefit.  However, even if she may in future succeed in HCA 1478 of 2009 in securing a right to live and stay in the flat under an order made pursuant to section 4 of the Ordinance, that does not mean that she can in the mean time seek an injunction to stop the 2nd defendant from issuing further notices to quit to her requiring her to deliver up the flat.

Legal Principles for Striking Out

14.  The 1^st defendant has reminded me the legal principles governing striking out applications (Hong Kong Civil Procedure 2010, paragraphs 18/19/4, 18/19/8 and 18/19/10).  It is only in plain and obvious cases that the court should exercise the power to strike out.  Disputed facts are taken in favour of the respondent to the application. Difficult points of law should not be decided in such applications and only claims that are obviously unsustainable and pleadings unarguably bad that they should be struck out.

Decision

15.  Since the 2nd defendant has the power to issue notices to quit to the plaintiff and the plaintiff has not demonstrated in this action any right to stop the 2nd defendant from doing so, I do not think the Statement of Claim has disclosed any reasonable cause of action as against the 2^nd defendant.

16.  Since the 1st defendant is merely a firm of solicitors acting for the 2nd defendant and the 2nd defendant has the right to issue notices to quit to the plaintiff, I do not think the plaintiff can stop the 1st defendant from acting for the 2nd defendant in issuing notices to quit on behalf of the 2nd defendant to the plaintiff.  The plaintiff’s statement of claim again discloses no reasonable cause of action as against the 1st defendant.

17.  The plaintiff has also alleged that she is a creditor of the deceased’s estate to the tune of more than HK$3 million.  That however is also not a ground that can stop the 2nd defendant from issuing her with notices to quite.

18.  I therefore uphold the decision of Master Lung and dismiss the plaintiff’s appeal.

19.  I also make a costs order nisi that the plaintiff do pay the 1st defendant costs of the appeal assessed summarily at HK$23,423.  I also make a costs order nisi that the plaintiff do pay the 2nd defendant costs of the appeal assessed summarily at HK$1,000 as the 2nd defendant has also filed a skeleton argument.

HCA 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10 OF 2010

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BETWEEN

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REASONS FOR DECISION

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The application

1.  The defendants in this action have taken out their respective summonses to strike out the plaintiff’s statement of claim and this Action on the grounds under Order 18 Rule 19 of the Rules of the High Court, viz.: (a) it discloses no reasonable cause of action; (b) it is scandalous, frivolous or vexatious; or (c) it is an abuse of process of the court.

2.  In the statement of claim, the plaintiff seeks an injunction against the 1st defendant and 2nd defendant restraining the defendants, their agents and servants from issuing further notices to quit to the plaintiff until further order of the court and damages to be assessed.  The basis of her claims against the defendants is that the plaintiff was the cohabitee and consort companion of the deceased, the late father of the 2nd defendant since 1989.  She considers that she is entitled to stay in the property at flat A, 42/F, Block I, Harbourfront Landmark, 11 Wan Hoi Street, Kowloon, Hong Kong.  The 2nd defendant has instructed her solicitors, the 1st defendant, to issue notices to quit respectively dated 30 April 2008 [p.65 of the bundle] and 10 December 2009 [p.69].  The plaintiff says that such letters are a threat to her and she now asks the court to grant the injunction.

3.  The plaintiff has now confirmed before me today that the 2nd defendant has already obtained Probate of her late father’s estate, which is contrary to paragraph 6 of her statement of claim.  She says that the Probate only came to her attention in February 2010.  Up to date, the Probate is still effective.  The plaintiff also agrees that the property she is now residing at is part of the estate of the deceased.

The Law

4.  The principles governing a striking out application are well established.  Para.18/19/4 of Hong Kong Civil Procedure 2010 Vol.1 at pp.394-396 provides inter alia as follows:

“…… It is only in plain and obvious cases that the court should exercise its summary powers to strike out …… any pleading under this rule. …… Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. …… The mere fact that the case is weak and not likely to succeed is no ground for striking it out ……

It is for the party seeking to strike out …… pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. ……

…… This rule also empowers the court to amend …… any pleading. If a statement of claim does not disclose the cause of action relied on, an opportunity to amend may be given, …… even though the formulation of the amendment is not before the court …… However, unless there is reason to believe that the case can be improved by amendment, leave will not be given. Or where the amendments would be far-reaching and so radical as to amount to a totally new pleading which would probably provoke a fresh application to strike out, the correct course is to strike out. ……” (emphasis added)

Discussion

5.  Based upon the evidence before me today, it is quite clear that the 2nd defendant, being the executrix of the deceased’s estate, is entitled to administer her late father’s estate and in fact she has the obligation to do so for the proper administration of the estate.  She has the power to appoint the 1st defendant to assist her in her administration of the estate.

6.  I find that the plaintiff has not been able to adduce any evidence to show the she is entitled to remain in the property.  She therefore has no right to prohibit the 2nd defendant from the administration of the estate.  The issuing of the letters is part of the administration of the estate.  The 1st defendant has the instructions from the 2nd defendant, as confirmed by the 2nd defendant.

7.  I therefore find that there is no legal basis for the plaintiff to take out the writ against the 1st defendant and the 2nd defendant for the injunction and damages as pleaded in her statement of claim.

8.  I have also considered whether the plaintiff may amend her statement of claim to make her case good. Having considered her evidence and her submissions before me today, I do not think that any amendment can remedy her action against the defendants.

9.  In the end, I accede to the defendants’ request and I strike out the plaintiff’s statement of claim and the Action against the 1st defendant and the 2nd defendant.

10.  As to the costs, the 1st defendant has submitted a schedule of costs for this Action.  The plaintiff has raised no specific objection to any of the items in the schedule of costs.  This court will apply a broad- brush approach in the summary assessment of the costs, which are assessed at $50,000.00 to be paid by the plaintiff within 14 days from the date hereof.  As the 2^nd defendant does not ask for costs of this Action, I make no order as to costs for the 2^nd defendant.

The Order

11.  I now make the order in terms of following:

(1)       The plaintiff’s statement of claim in the Action against the 1st defendant and the 2nd defendant be struck out and this Action against the 1st defendant and the 2nd defendant be dismissed;

(2)       Costs of this action, including the costs reserved and for today’s hearing be to the 1st defendant assessed at $50,000.00 to be paid by the plaintiff within 14 days from the date hereof.  As to the costs for the 2^nd defendant, I make no order.

Plaintiff, appearing in person.

Mr. David Choi of Messrs. Liu, Chan & Lam for 1st Defendant.

2nd Defendant, appearing in person.