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Tsang Woon Ming v Tsan Hing Tat Heidi And Others

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date30 November 2018
Neutral Citation[2018] HKDC 1498
Judgement NumberDCCJ3791/2016
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ3791B/2016 TSANG WOON MING v. TSAN HING TAT HEIDI AND OTHERS

DCCJ 3791/2016

[2018] HKDC 1498

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3791 OF 2016

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BETWEEN
TSANG WOON MING（曾煥明） Plaintiff
and
TSAN HING TAT HEIDI（曾慶達） 1st Defendant
TSANG HING KWONG THOMAS（曾慶光） 2nd Defendant
YAP HENRY FAT SUAN（葉發旋） 3rd Defendant
YAP HENRIETTA CHUN WAH（葉俊華） 4th Defendant
YAP JASON CHUN YING（葉俊英） 5th Defendant
YAP CHUN HUNG ALEXANDER（葉俊雄） 6th Defendant

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Before: Her Honour Judge Winnie Tsui in Chambers (Open to Public)

Date of Hearing: 30 November 2018

Date of Decision: 30 November 2018

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DECISION

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1. I handed down a decision on 19 July 2018 refusing the 1st to 6th defendants’ striking out application. The defendants now apply for leave to appeal against that decision. The draft notice of appeal contains five proposed grounds. In the course of his submissions this morning, Mr Frederick Chan, appearing for the defendants, confirms that the defendants would abandon the third ground.

Legal principles

2. The principles governing the threshold for granting leave to appeal are not in dispute. The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.

3. A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”: Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd [2011] 5 HKC 474 at para 6.

The first ground

4. In gist, the complaint under the first ground is that I erred in holding that constructive knowledge would suffice for establishing an estoppel by acquiescence or standing by (see para 53 of the decision) and that in any event the five “pointers” relied on by the plaintiff are not capable of giving rise to constructive knowledge (see paras 61 to 68).

5. Mr Chan submits that I was wrong in relying on what Floyd LJ said at para 37 in Hoyl Group Ltd v Cromer Town Council [2016] P&CR 45 in support of the proposition that constructive knowledge would be sufficient. In Smyth-Terrell v Bowden [2018] L&TR 23, His Honour Judge Paul Matthews (sitting as a High Court Judge) came to the opposite view. The learned judge said, at para 78:-

“But I decline to hold that an equity by way of proprietary estoppel can arise where a landowner ought to have realised, but did not realise, that the tenant believed that the landowner was promising an interest, and the landowner did nothing to encourage the tenant to act in the way that he did.” (original emphasis)

6. Mr Chan concludes that, as a matter of law, constructive knowledge cannot give rise to an estoppel arising by acquiescence. However, he accepts that there is no direct authority on this point.

7. All that Mr Chan is able to show is that there is a difference in judicial opinions on this point. It is certainly a moot issue. And it is not an easy point of law. As such, it should be left for resolution at trial so that the issue can be considered and determined by reference to actual facts as found, instead of by reference to assumed facts: see, eg, W v Essex County Council [2001] 2 AC 592, 598A-C, per Lord Slynn.

8. Mr Chan argues that this is the right time for the court to deal with the issue as it is properly engaged on the pleaded facts and that there is no need to wait until trial. I do not accept this argument. It can be foreseen that there will be a certain amount of factual disputes between the parties, eg the extent of dealings between the plaintiff, Madam Luk and some of...

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