Cheung Lai Mui (張麗梅), The Executrix Of The Estate Of Cheung Ping Kau And The Administratrix Of The Estate Of Cheung Ping Fuk (Alias Cheung Bing Fuk) v Cheung Wai Shing (張偉城) And Others

Judgment Date18 December 2020
Neutral Citation[2020] HKCFA 41
Year2020
Judgement NumberFAMV151/2020
Subject MatterMiscellaneous Proceedings (Civil)
CourtCourt of Final Appeal (Hong Kong)
FAMV151/2020 CHEUNG LAI MUI (張麗梅), the executrix of the estate of CHEUNG PING KAU and the administratrix of the estate of CHEUNG PING FUK (alias CHEUNG BING FUK) v. CHEUNG WAI SHING (張偉城) AND OTHERS

FAMV No. 151 of 2020

[2020] HKCFA 41

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 151 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 107 OF 2017)

________________________

BETWEEN

CHEUNG LAI MUI (張麗梅),
the executrix of the estate of CHEUNG PING KAU and the administratrix of the estate of CHEUNG PING FUK (alias CHEUNG BING FUK)
Plaintiff
(Applicant)
and
CHEUNG WAI SHING (張偉城) 1st Defendant
(1st Respondent)
CHEUNG WAI MIN (張偉冕) 2nd Defendant
(2nd Respondent)
CHEUNG CHI YUNG (張智勇) 3rd Defendant
(3rd Respondent)

________________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Cheung PJ
Date of Hearing and Determination: 14 December 2020
Date of Reasons for Determination: 18 December 2020

_______________________________

REASONS FOR DETERMINATION

_______________________________

Mr Justice Ribeiro PJ:

1. Having indicated our decision at the hearing, this is the Appeal Committee’s Determination.

2. The underlying dispute concerns a property in Sai Kung (“Lot 1101”) which had been jointly owned by three brothers who are now all deceased. The plaintiff (P), is the personal representative administering the estates (including their shares in Lot 1101) of two of them. The first and second defendants (D1 and D2) are the son and daughter of the third deceased brother and have succeeded to his share of the property.

3. The third defendant (D3) is D1’s son and lives on Lot 1101, having built two structures thereon after the deaths of the three brothers. P has brought proceedings against the defendants seeking orders for the removal of the structures. The defendants resist those proceedings, denying P’s title to sue and contending that D3 alone is beneficially entitled to the property by virtue of the operation of one or more of the doctrines of common intention constructive trust, proprietary estoppel and estoppel by acquiescence.

4. D1 and D2 have lodged a counterclaim against P, seeking an account of rent in respect of a different property (“House 774”) jointly owned by the three of them.

The judgment at first instance

5. The trial Judge dismissed P’s claim regarding Lot 1101. He held that during the lifetimes of the three brothers, there had been a common understanding “that the [D3] should become the sole owner of [the property] and that he could use it as his home”[1] and that D3 was entitled to beneficial ownership of the land by virtue of the aforesaid doctrines. He found in favour of D1 and D2 on their claim for an account of rent.

The Court of Appeal’s decision

6. The Court of Appeal decided that essential aspects of the claims had not been adequately dealt with at the trial. Their Lordships set aside the CFI judgment and ordered an extensive remitter to the same Judge, directing that:

1. “... the following issues be remitted to the Honourable Mr Justice Wilson Chan for determination:-

(1) In respect of [D3’s] claims based on common intention constructive trust:-

(a) What date amongst the three dates of death [of the brothers] should be the cut-off date for ascertaining if there were detrimental reliance on the part of [D3]?

(b) Whether [D3] had suffered adequate detrimental reliance prior to the ascertained cut-off date?

(2) In respect of [D3’s] claims based on proprietary estoppel:-

(a) Whether it was reasonable for [D3] to rely on the promisor assurance of [the brothers] after their respective demise, including when he proceeded to build the two structures (or houses) in 2002 and 2003?

(b) The question of relief if [D3] is successful in this claim.

(3) In respect of [D3’s] claims based on estoppel by silence or acquiescence, whether [P] was entitled not to take action until Structure A was expanded, taking into account that (a) [P] obtained grant of probate in respect of [Kau’s] estate in 1998 and grant of letters of administration in respect of [Fuk’s] estate in 2006; and (b) [D1 and D2] are part owners, and [D3] was their son and nephew?

(4) In respect of [D1 and D2’s] claim in respect of House 774 for account and payment of occupation rent, whether they are entitled to the relief.

2. In respect of paragraph 1(4) above, [the Judge] should take into consideration the expenses of rebuilding House 774 in deciding whether [D1 and D2] are entitled to the relief.

3. Save and except the issue set out in paragraphs 1 and 2 above, the findings by [the Judge in the Judgement] are not to be disturbed.”

7. That Order is unusual in that the remitted questions do not consist merely of questions of fact but raise legal issues (determining a cut-off date regarding detrimental reliance; deciding what relief is appropriate; ascertaining P’s capacity to sue co-owners; and deciding whether D1 and D2 are entitled to relief) as well as evaluative judgments of mixed fact and law (regarding the adequacy of detrimental reliance and the reasonableness of any reliance). One might have expected such questions to be determined by the Court of Appeal either definitively, if the facts had been found, or in principle, if not, remitting questions of fact to the Judge only in so far as necessary. Indeed, the legal principles underlying the remitted questions appear to have been decided by the Court of Appeal and the Judge was directed to determine the remitted questions “in accordance with [the Court of Appeal’s] legal analysis”.[2]

The application to the Court of Appeal for leave to appeal

8. The Plaintiff sought leave from the Court of Appeal to appeal to this Court and proposed two questions of law:

...

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