CHAN HAU LING v. 劉西 AND ANOTHER

CHAN HAU LING v. 劉西 AND ANOTHER

The plaintiff, having had prior exclusive possession, retained locus to sue; the defence of abandonment was rejected on the facts and in law; the court found an oral agreement that 1st defendant would settle arrears and remedial costs in return for possession until mid‑2010; estoppel applied to preclude the 1st defendant (and through him the 2nd defendant) from denying the plaintiff's right to possession; accordingly the plaintiff was entitled to vacant possession and mesne profits assessed by the court.

Citation
CHAN HAU LING v. 劉西 AND ANOTHER
Parties
Plaintiff: Chan Hau Ling; 1st Defendant: 劉西; 2nd Defendant: 黃端淋
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 April 2015
Case Number
HCA1286/2012
Procedural Posture
Ejectment (recovery of Land) / Judgment (court of First Instance, 22 April 2015)
Outcome
Judgment for the Plaintiff
Legal Topics
Ejectment, Possession, Licence Vs Tenancy, Estoppel by Tenancy, Abandonment Defence, Mesne Profits, Oral Agreement
Source Language
EN
Property Law Landlord and Tenant Contract Equity Ejectment Possession Licence Vs Tenancy Estoppel by Tenancy +3 more

Case Brief

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Parties

Chan Hau Ling

Plaintiff

劉西

1st Defendant

黃端淋

2nd Defendant

Procedural Posture

Ejectment (recovery of Land) / Judgment (court of First Instance, 22 April 2015)

Legal Issues

  1. 1 Whether the plaintiff retained locus to sue for possession despite alleged abandonment
  2. 2 Whether an oral agreement or oral sub-tenancy existed between plaintiff and 1st defendant permitting possession until 30 June 2010
  3. 3 Whether the defence of abandonment is legally and factually established

Ratio Decidendi

The plaintiff, having had prior exclusive possession, retained locus to sue; the defence of abandonment was rejected on the facts and in law; the court found an oral agreement that 1st defendant would settle arrears and remedial costs in return for possession until mid‑2010; estoppel applied to preclude the 1st defendant (and through him the 2nd defendant) from denying the plaintiff's right to possession; accordingly the plaintiff was entitled to vacant possession and mesne profits assessed by the court.

Court Disposition

Judgment for the Plaintiff

Orders

  • 1st and 2nd Defendants to deliver up vacant possession of Flat H, 21st Floor, Fu Tien Mansion, Horizon Gardens, 13 Taikoo Wan Road, Taikoo Shing, Hong Kong within 56 days from date of judgment
  • Judgment entered against 1st and 2nd Defendants for mesne profits in the sum of HK$1,404,840 with interest at 1% above the prevailing Hong Kong dollar prime lending rate from 1 July 2010 to date of judgment, thereafter at judgment rate