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Man Loy Hei v The Personal Representative Of Man Cheuk Hi, Deceased

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date27 August 2021
Neutral Citation[2021] HKDC 1027
Year2021
Judgement NumberDCCJ1687/2020
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ1687/2020 MAN LOY HEI v. THE PERSONAL REPRESENTATIVE OF MAN CHEUK HI, Deceased

DCCJ 1687/2020

[2021] HKDC 1027

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1687 OF 2020

-------------------------

BETWEEN
MAN LOY HEI Plaintiff

and
THE PERSONAL REPRESENTATIVE OF
MAN CHEUK HI（文灼熙）, Deceased		 1st Defendant

-------------------------

Before: Deputy District Judge Charles Wong

Date of Hearing: 4 June 2021

Date of Decision: 4 June 2021

Date of Reasons for Decision: 27 August 2021

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REASONS FOR DECISION

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INTRODUCTON

1. The plaintiff has taken out an application for default Judgment under Order 19, rule 7 of the Rules of the District Court (Cap 336H) by way of summons dated 9 February 2021.

2. The applicant,Madam Tang Wai Chun, the administratix of Man Chuk Hi (文卓熙) also known as Man Cheuk Hei (文灼熙) by a summons dated 31 March 2021 (the “Summons”) applies to be joined as 2nd defendant to the present action under O 15, r 6 (2) (b) of the Rules of the District Court, Cap 336H, (the “RDC”).

The plaintiff’s claims

3. The plaintiff has made an adverse possession claim for the possessory title as a “squatter” of 17 pieces of land in Demarcation District Nos. 102, 104 and 105 (collectively, the “Lots”) in San Tin, Yuen Long, New Territories.[1]

4. The Lots are registered in the sole name of Man Cheuk Hi.[2]

5. The plaintiff claimed initially[3] against Man Cheuk Hi, and subsequently[4] “the Personal Representative of Man Cheuk Hi (文灼熙), deceased”.

6. In the Statement of Claim, the plaintiff alleges that:-

(1) Man Cheuk Hi, who was is the plaintiff’s uncle, left Hong Kong in about 1946.[5]

(2) Since 1965, the plaintiff’s predecessors and then the plaintiff have been in continuous exclusive possession of the Lots, and hence the plaintiff has acquired possessory titles of the Lots.[6]

7. The applicant’s case is that she is the lawful wife of “Man Cheuk Hi”, who was also known as Man Cheuk Hei, 文卓熙and文灼熙in Chinese.[7]

8. The applicant’s husband passed away on 23 March 1997, and the applicant has been the sole administratrix of her husband’s estate (the “Estate”) since 9 February 2001.[8]

9. It is the applicant’s case that, the applicant’s husband, as opposed to the alleged uncle of plaintiff, was the sole registered owner of the Lots. The applicant in her capacity as the sole administratrix of the estate of Man Cheuk Hi filed and served the Acknowledgment of Service of the Amended Writ with intent to defend on 20 January 2021 (the “AS”).[9]

10. The plaintiff disputed the applicant’s locus to file the AS, purportedly on the ground that the applicant is not the administratrix of the defendant, and regardless of the AS, proceeded to apply for default judgment for possessory titles of the Lots.

11. The applicant then took out a summons applying to join as a 2nd defendant to the present action.

12. Both summonses were fixed before this court to be heard on the same date. As the default judgment application is subject to the determination of the joinder application, it is appropriate to determine the applicant’s application before proceeding to the plaintiff’s application for default judgment.

BACKGROUND

Legal Principles on Joinder Application

13. Under O 15, r 6(2)(b) of the RDC: -

(1) O 15, r 6(2)(b)(i):-

“… any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined or adjudicated upon” (emphasis added)

(2) O 15, r 6(2)(b)(ii):-

“any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

14. The test is whether there is a bona fide defence and proper question to be tried as between the plaintiff and the applicant that is necessary or just and convenient for the resolution between them as well as between the plaintiff and the defendant herein.

15. In Pang Kwok Lam v Schneider Electric Asia Pacific Ltd (unrep, HCPI 90 of 2010, 5 January 2011), Master Marlene Ng (as she then was) stated at §§72 & 73 as follows:-

“72. In my view, given the objectives of Order 15 rule 6(2)(b) of the RHC outlined above, the court’s power to join parties is a generous one, and the court’s attitude is permissive although it must still ensure that the joinder is necessary and/or just having regard to the statutory criteria. According to Hong Kong Civil Procedure 2011 Vol 1 para 15/6/1 at pp 285-286, ‘[the] power given by the rule is, however, widely exercised … though the addition of new parties may cause new expense and necessitate new evidence … But, generally speaking, the court will make all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute … The court will not, however, decide questions of right on applications under the rule …’

73. I am persuaded that the relevant approach to be adopted is whether there is a bona fide claim and a proper question to be tried as between the Plaintiff and Law/BLC that is necessary or just and convenient for resolution between them as well as between the Plaintiff and the Defendant in the present proceedings.” (emphasis added)

16. There is no requirement for an applicant to show merit of his or her case under this rule at this stage. In Wong Shan Shan v The Incorporated Owners of Yue Wah Mansion (unrep, HCA 1086/2013, 28/1/2015) at §§31-33, Deputy High Court Judge Kent Yee (as he then was) stated the following:-

“31. To start with, I agree with Mr Li that under Order 15 r 6, there is no requirement for an applicant to show merit of his case. Nor am I provided with any authorities to convince me that merit is a relevant consideration in a joinder application.

32. In my judgment, a necessary party must be allowed to be joined as a party irrespective of the strength of his case. At the very least, he should be allowed to take part in the proceedings. It is a breach of natural justice if a necessary party is denied any participation altogether. It defies fairness and justice if a legal/ beneficial owner of a property is not allowed to contest an action whereby a squatter claims that his legal title/ beneficial interest has been extinguished. Summary judgment and/ or striking out applications can be made if deemed appropriate further down the road so that a judgment can be entered against and made binding on the intervener.

33. In the premises, I refuse to deal with the merit. The action is still very much in its infancy and the parties’ respective cases can be subject to further changes and development. It is neither necessary nor appropriate for me to pass any comment on the materials presently before me other than those germane to the joinder application.” (emphasis added)

17. In applying the test, Hon Peter Ng J in Advanced Connection Ltd v Able Technology (Hong Kong) Ltd and Others [2018] HKCFI 2465 stated the following:-

“22. Mr Clark, for the Plaintiff, submits that on a joinder application, the burden is therefore on the parties opposing to establish...

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