Cheung Lai Mui, 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 And Others

Judgment Date13 July 2021
Neutral Citation[2021] HKCFA 22
Judgement NumberFACV1/2021
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV1A/2021 CHEUNG LAI MUI, 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 AND OTHERS

FACV No. 1 of 2021

[2021] HKCFA 22

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2021 (CIVIL)

(ON 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 (Appellant)
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)

________________________

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Bokhary NPJ and Mr Justice Gummow NPJ

Date of Judgment: 13 July 2021

________________________

JUDGMENT ON COSTS

________________________

Mr Justice Ribeiro PJ:

1. This is the Court’s judgment on costs.

2. Judgment in this appeal[1] was handed down on 27 May 2021. Pursuant to the Court’s order, the parties have lodged submissions as to costs which are now dealt with on the papers.

3. Two disputes were involved in the appeal.

(a) The first concerned a claim and a counterclaim regarding “the Disputed Land”.[2] The claim was brought by the plaintiff/appellant (P) against the three defendants/respondents (D1 to D3) seeking, among other relief, an injunction against D3 and an order for sale of the Disputed Land under the Partition Ordinance.[3] The counterclaim was lodged by D3 for a declaration and consequential relief on the basis that he is the sole beneficial owner of the Disputed Land and that P is a constructive trustee holding a 2/3 interest therein for him, his case in this Court resting principally on the doctrine of proprietary estoppel.

(b) The second dispute involved a counterclaim brought by D1 and D2 against P in relation to “House 774”[4] for an account and payment of 1/3 of the rental income from the first and second floors thereof and of 1/3 of mesne profits (or occupation rent) in respect of the ground floor in which P resided.[5] This counterclaim was brought on the basis that D1 and D2 together held an undivided 1/3 interest in House 774 as tenants in common with P who held an undivided 2/3 interest therein.

4. At first instance,[6] Wilson Chan J dismissed P’s claim regarding the Disputed Land and gave judgment in favour of D3 on his counterclaim for a declaration of beneficial ownership thereof and consequential relief. His Lordship also held in favour of the counterclaim of D1 and D2 against P for rent regarding House 774.

5. On appeal, the Court of Appeal[7] set aside the judgment of the trial Judge and remitted a number of issues in relation to each of the two disputes for determination by his Lordship. On P’s application for leave to appeal to this Court,[8] the Court of Appeal observed that the questions sought to be raised were prima facie reasonably arguable but adjourned the leave application with liberty to the parties to restore it for hearing after determination of the remitted issues.

6. The Appeal Committee[9] stayed the Court of Appeal’s remitter order and granted leave to appeal on two Questions of law formulated as follows:

Question 1

“Whether there can be proprietary estoppel arising from an oral promise relating to interest in land binding on the estate of the promisor in the absence of any or any reasonable detrimental reliance by the promisee prior to the death of the promisor; and in such case whether detrimental reliance of the promisee only after the death of the promisor can give rise to proprietary estoppel against the estate of the deceased promisor overriding the interest of the successors or beneficiaries to the estate?”

Question 2

“Whether a co-owner in sole occupation of land, in cases other than partition or ouster and in the absence of agreement, should be ordered to account to the other co-owners for occupation rent. Alternatively, whether the proposition of law in Re Pavlou (A Bankrupt) [1993] 1 WLR 1046 at 1050D that ‘a court of equity will order an inquiry and payment of occupation rent even if there is no ouster when it is necessary to do so to do equity between the parties’ should be confined to partition or analogous proceedings?”[10]

7. On appeal, this Court held in D3’s favour on the first dispute (reflected in Question 1), declaring P estopped from denying that D3 is beneficially entitled to the Disputed Land; ordering her to cause the undivided 2/3 share therein to be transferred to D3; and dismissing P’s claim against the three defendants. On the second dispute (reflected in Question 2), the Court dismissed the claim for rent by D1 and D2 against P. This judgment addresses the costs orders to be made consequential upon the Court’s aforesaid judgment.

8. Ms Audrey Eu SC[11] submits on P’s behalf that the following costs orders should be made, namely, that :

(a) “P should be entitled to two-thirds of the costs of the appeal to this Court, save that P should have the costs of the applications to the CA and to the Appeal Committee for leave to appeal, to be taxed if not agreed, with certificate for two counsel [the first order];

(b) P should be entitled to two-thirds of the costs in the CA, save that the CA’s order dated 3 July 2020 that ‘50% of the costs of the application for variation to the plaintiff’ do stand [the second order]; and

(c) Ds should have two-thirds of the costs in the Court of First Instance to be taxed if not agreed [the third order].”

9. On behalf of the defendants, Mr William Wong SC[12] submits that the Court should order that in this Court and in the Courts below:

(a) “P shall pay...

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