LAM NUI v. TSE YAN SAU AND OTHERS

HCMP1410/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1410 OF 1998

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J U D G M E N T

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1. The defendants are the registered owners of the piece and parcel of land known as the Remaining Portion of Lot No. 2366 in Demarcation District No. 120 in Yuen Long (hereinafter referred to as "the Land"). In this action, the plaintiff claims for a declaration that the defendants' have lost the right to bring any action to recover the Land and that their rights and interests to the Land have been extinguished under the Limitation Ordinance by reason of her adverse possession.

2. The plaintiff did not appear when the trial was called on this morning. In accordance with the practice noted in the Hong Kong Civil Procedure 2002 para. 35/1/1 at p. 551, I dismiss the plaintiff's action with costs.

3. This, however, does not dispose of the matter entirely. The defendants have raised a counterclaim and elected to proceed with it. One of the defendants, Mr Tse Ying Yiu, gave evidence in support of the counterclaim. Mr Tse said that some time in 1980, he and his mother noticed that a drain was built across the Land by the plaintiff. His mother went over to have a discussion with the plaintiff, and had an agreement with the plaintiff whereby the plaintiff was to pay a fee of $100 to his mother every month presumably for the permission to use the drain. This was described as rent, but is probably more accurately referred to as a fee. Mr Tse said that after this arrangement had gone on for two to three years, he suggested not to rent the drain to the plaintiff any more. He thought it was useless collecting $100 from her. Mr Tse said he did not know for how long the plaintiff had been paying the $100, since it was his mother who collected it from the plaintiff. When asked whether he knew that the plaintiff failed to pay the fee, he said :

"Yes, we said that we wouldn't rent the place to her any more."

4. In my judgment, the defendant's own evidence shows that the arrangement to pay this fee of $100 was terminated at some stage. There is no evidence as to when that was. The defendant has not adduced any evidence that the plaintiff defaulted in the payment of this fee during the time when the arrangement was in place. In these circumstances, I find that the defendant has not proved its counterclaim for arrears of rent or fees.

5. Accordingly, there will only be an order in the counterclaim that the defendants do have possession of the Land.

6. I make the following orders :

(1) the plaintiff's action be dismissed;

(2) the defendants do recover possession of the Land; and

(3) the plaintiff shall pay the costs of this action and of the counterclaim to the defendant, to be taxed if not agreed.