NG WING TAY v. ETEK CO LTD

HCMP 416/2019

[2019] HKCFI 2902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 416 OF 2019

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JUDGMENT

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1.  The plaintiff commenced these proceedings for declaration in respect of his possessory title on the ground of adverse possession against the registered owner of the part of the property in question.

The subject matter

2.  Fok Lin Building (“the Building”) is a multi-storey development on Sections G and H of Hung Hom Inland Lot No 235, and the lot was particularly described as the open space at 7-21 Baker Court, 44-50 Baker Street and 51-57 Winslow Street, Kowloon.

3.  Undivided shares have been allocated to the development since the 1970s.  The open space, where the development is situated, together with the exterior walls of the Building erected there, which are above the first floor ceiling level, and all other portions of the Building not otherwise allocated and not designated for common use, was from the outset allocated 1/294 undivided share.  The defendant was the first, and still is, the registered owner of the interest represented by this undivided share of the development.  Circumstances suggest that the defendant was the developer and first vendor.

4.  By assignment dated 31 May 2005, the plaintiff became the registered owner of Shops Nos 5 and 6A on the Ground Floor of the Building, which had been rendered effectively as a combined unit (“the Shops”).

5.  Since 2005, the plaintiff has been operating at the Shops his business of sale and purchase of antiques and rare currency bills, stamps and wine in the name of Wah Hing Company.

6.  The plaintiff claims that in July 2005, he enclosed an area at the rear of the Shops, which was part of the stripe of open area dividing the Building and the neighbouring Wah Lai Building and Fortune Building (“the Open Area”).  The plaintiff began to occupy such enclosed area, which is identified and coloured pink on the plan annexed to the originating summons and this judgment (“the Enclosed Area”).

7.  At the first hearing, this application was adjourned to today at the initiative of the plaintiff to enable him to serve these proceedings on the defendant at a newly discovered registered address of its.  Leave was also given to the plaintiff to amend the originating summons.  Now affidavit of further service of these proceedings on the defendant at its other registered address last known to the plaintiff has been filed.  There is no public record of the dissolution of the defendant.

8.  During the last hearing, this court also raised the concern about whether the co-owners of the Building would need to be served or even joined in the present application.  The answer to that would depend on whether any part of the open space allocated with the 1/294^th undivided share from the outset has ever been designated for common use since 1970s.  For reasons discussed below, the answer to this question should be in the negative.

9.  In the circumstances, I allowed the plaintiff to proceed.

The principles

10.  Section 7(2) of the Limitation Ordinance, Cap 347 provides that no action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him.  The title of the person whose right to bring action to recover the land has expired shall be extinguished pursuant to section 17.

11.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess the land in question: see Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKC 1 at 12E.  He must have been dealing with the land in question as an owner in possession might have been expected to deal with it, and that no one else has done so: see Powell v McFarlane & Anor (1970) 38 P&CR 452 at 471.  He must have done so in his own name and on his own behalf to the exclusion of the world at large, including the paper title owner, so far as is reasonably practicable and so far as the processes of the law will allow: see Powell at 471-2; JA Pye (Oxford) Ltd & Anor v Graham & Anor [2003] 1 AC 419 at §43; Wong Tak Yue at 12I.

12.  Whilst it is not the practice of the court to grant declaratory relief by default, the court may nevertheless do so if the fullest justice requires.  This happens if the plaintiff can demonstrate a genuine need for the declaratory relief, and justice will not be done if the relief is denied: see Hong Kong Civil Procedure 2020 (Vol.1) at §19/7/20.

The plaintiff’s case

13.  As mentioned, the plaintiff claims to have occupied the Enclosed Area exclusively since 2005.  In January 2007, the plaintiff received a warning notice from the Building Authority in respect of the structure over the Enclosed Area being in contravention against the Building Ordinance.  As a result, minor alterations to the structure have been made.  The plaintiff has been occupying the Enclosed Area until the present.

14.  The plaintiff adduced the following evidence in support:

(1) the receipts in respect of the purchase of building materials and miscellaneous equipment as well as the engagement of the contractor for the construction of the structure over the Enclosed Area dated back in 2005;

(2) the photographs taken in 2005 of the front of the Shops and those taken in 2018 depicting the structure over the Enclosed Area and the facilities inside;

(3) the photographs taken by the surveyor in 2018 depicting the metal door with lock at the structure over the Enclosed Area that opens to the Open Area; and that the Enclosed Area covered by the structure is only accessible from inside the Shops.

15.  The plaintiff deposed to the effect that there has been no complaint by any other person about such occupation by the plaintiff.  In this respect, other parts of the Open Area have been the subject matters of claim by other parties against the defendant on the ground of adverse possession as well.  They are respectively:

(1) judgment of DHCJ Gill dated 28 May 2003 in HCMP 756/2003 concerning 59.1 square metres of the Open Area, which is to the far right of the Enclosed Area; and

(2) judgment of Hon To J dated 8 May 2014 in HCMP 1630/2013 concerning 10.3 square metres of the Open Area, which is to the right of the Enclosed Area.

16.  These other judgments did not concern the Enclosed Area and therefore do not affect the plaintiff’s claim.

17.  As mentioned, during the last hearing, I raised with counsel the question of whether other owners of the Building (or the development) would need to be joined.  The answer to the question would depend on whether any part of the open space or the exterior wall of the Building covered by the 1/294^th undivided share has at any stage been designated for common use since the 1970s.  There is no allegation in this respect in the pleading.  Nor was there material before this court, such as the deed of mutual covenants that governs this development dated 1973^[1], which should cast light on this question.  Indeed, it was apparently accepted in the previous proceedings initiated by the other parties mentioned above that the defendant was the only proper defendant.  However, it is unknown what materials were before the courts in those proceedings.  In any event, there is no question of this court being bound by those judgments insofar as consideration of the circumstances and evidence in the present case is concerned.

18.  Now the plaintiff has filed further affirmation, exhibiting the deed of mutual covenant, to confirm that no part of the open space represented by the 1/294^th undivided share has been designated for common use.  Pursuant to the deed[2], the defendant had the exclusive right to use occupy and enjoy it.  There is no material suggesting any change in that ever since.

19.  In the circumstances, I grant the declaration in terms of §§1-3 of the originating summons.

20.  The plaintiff asks for costs. However, it would have been his burden to establish his entitlement and to satisfy the court that the declaratory relief ought to be granted in the present case, whether or not the defendant appears.  The defendant did not appear. It is appropriate to make no order as to costs in the circumstances, and I do so.

Enclosure (the Enclosed Area)