HUI TANG TAT（許騰達)［in the Will called HUI TANT TAT（許騰達）］，the Executor of the Estate of PAO SHUN HING（鮑舜）also known as PAO SHUN HING（鮑舜卿），Deceased 對 HUI TING BONG（許定邦）及另一人

HUI TANG TAT（許騰達)［in the Will called HUI TANT TAT（許騰達）］，the Executor of the Estate of PAO SHUN HING（鮑舜）also known as PAO SHUN HING（鮑舜卿），Deceased 對 HUI TING BONG（許定邦）及另一人

Plaintiff, as sole executor and registered legal owner, was entitled to possession because the defendant's occupation derived only from a bare licence granted by the first defendant which terminated on the owner’s death; the second defendant raised no credible, particularized or triable defence (including proprietary estoppel) and therefore summary judgment under Order 14 was appropriate; mesne profits are recoverable for the period of unlawful occupation and the pending HCMP proceedings do not defeat the application.

Citation
[2019] HKDC 1270
Parties
Plaintiff (executor of the Estate of Pao Shun Hing): HUI TANG TAT (許騰達); First Defendant: HUI TING BONG (許定邦); Second Defendant: LIU SUET FUN (廖雪芬)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 August 2019
Case Number
DCCJ1623/2019
Procedural Posture
Civil – Claim for Possession and Mesne Profits Against Occupier of Residential Unit / Application for Summary Judgment Under Order 14 (district Court Rules)
Outcome
Application for summary judgment under Order 14 granted in favour of the plaintiff/executor
Legal Topics
Possession, Mesne Profits, Bare Licence, Proprietary Estoppel, Summary Judgment Under Order 14, Executor's Title
Source Language
CH
Property Law Civil Procedure Equity Trusts and Estates Possession Mesne Profits Bare Licence Proprietary Estoppel +2 more

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Parties

HUI TANG TAT (許騰達)

Plaintiff (executor of the Estate of Pao Shun Hing)

HUI TING BONG (許定邦)

First Defendant

LIU SUET FUN (廖雪芬)

Second Defendant

Procedural Posture

Civil – Claim for Possession and Mesne Profits Against Occupier of Residential Unit / Application for Summary Judgment Under Order 14 (district Court Rules)

Legal Issues

  1. 1 Whether plaintiff as sole executor and legal owner is entitled to possession of the subject flat
  2. 2 Whether the second defendant has an arguable defence to a possession claim (eg proprietary estoppel or an irrevocable licence)
  3. 3 Whether mesne profits are recoverable from the occupier despite HOS/undischarged land premium status

Ratio Decidendi

Plaintiff, as sole executor and registered legal owner, was entitled to possession because the defendant's occupation derived only from a bare licence granted by the first defendant which terminated on the owner’s death; the second defendant raised no credible, particularized or triable defence (including proprietary estoppel) and therefore summary judgment under Order 14 was appropriate; mesne profits are recoverable for the period of unlawful occupation and the pending HCMP proceedings do not defeat the application.

Court Disposition

Application for summary judgment under Order 14 granted in favour of the plaintiff/executor

Orders

  • Second defendant to deliver up possession of the subject flat to the plaintiff
  • Second defendant to pay mesne profits to the plaintiff; amount to be assessed