PARKMOST LTD v. WONG YEUNG ON

HCA 1193/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1193 OF 2006

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D E C I S I O N

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1.  The plaintiff has obtained summary judgment for possession from Master Hui.  The Defendants now appeal against that judgment.

2.  The Plaintiff is the registered owner of a block of buildings in Happy Valley.  The 2nd Defendant is an occupier of a flat in the building.  The Plaintiff claims that the 1st Defendant was its tenant. 

3.  On 23 February 2005, the Plaintiff served on the 1st Defendant a Transitional Termination Notice pursuant to sections 5(2) and 6(2) of the Landlord and Tenant (Consolidation) (Amendment) Ordinance 2004.  The notice expired on 23 February 2006.  The Defendants did not deliver up the flat to the Plaintiff.  The 1st Defendant in fact passed away in 1979.  The 2nd Defendant was his son.  The 2nd Defendant stays in the premises as the beneficiary of his estate.

4.  The Plaintiff then applied to the Lands Tribunal on 22 March 2006 for possession.  The 2nd Defendant opposed the application on the ground of adverse possession.  The claim was then transferred to this court.  The Plaintiff issued the Statement of Claim on 8 December 2006.  The basis of the claim is the issue an expiration of the Transitional Termination Notice.

5.  The 2nd Defendant this morning complained that the Plaintiff had not issued any writ of summons before serving the Statement of Claim.  However, this claim was transferred from the Lands Tribunal and no writ of summons should be served. 

6.  The 2nd Defendant then made a counterclaim in the capacity of the personal representative of the 1st Defendant as well as in his own capacity for a declaration of adverse possession against the Plaintiff. 

7.  The basis of the counterclaim in gist was that the original landlord was a Mr Ng who had disappeared in the 1970s.  The Plaintiff is a company controlled by one Lee Sing Kwok (“Lee”).  Lee, in the 1970s sent his employees to collect rent from the occupants of the building without telling them that Mr Ng had disappeared.  Lee’s employee, Mr Chan Kwok Yun then applied in 1999 for a declaration that he had obtained title to the building by adverse possession.  He obtained the declaration on 16 July 1999 from Deputy Judge Muttrie of this court.  He then purportedly sold the building to the plaintiff.  The 2nd Defendant alleged that he came to know about this when the Plaintiff sued him for possession. 

8.  The Defendants applied for summary judgment on the counterclaim on 6 March 2007.  The Plaintiff also applied for summary judgment on the claim and to strikeout the counterclaim. 

9.  On 28 June 2007, Master Hui dismissed the Defendants’ application for summary judgment on the counterclaim.  He also struck-out that part of the counterclaim for adverse possession.  The Defendants appealed against this decision.  The appeal was dismissed by me on 16 January 2008.

10.  On 4 March 2008, Master Hui further gave the Plaintiff summary judgment on the claim for possession against the Defendants.  The Defendants appealed.  I heard the appeal this morning. 

11.  The Defendants’ arguments in the appeal are the same as the grounds used in support of their counterclaim for adverse possession.  Since their counterclaim for adverse possession has been struck-out, the same grounds cannot assist them in defence of the Plaintiff’s claim for possession.  The reasons of refusing these grounds for adverse possession are contained in my decision given on 16 January 2008 and I am not going to repeat them.  The Defendants have therefore failed to state any ground to resist the Plaintiff’s claim for possession.

12.  In the premises, I dismiss the Defendants’ appeal and uphold the decision of Master Hui.

13.  I also order the Defendants to pay the Plaintiff the cost of this appeal, including the costs of the appearance before Deputy Judge Au on 7 August 2008.  The costs are to be taxed.

14.  I also refer to the Defendants’ complaint that the Plaintiff has failed to file a reply and defence to counterclaim within the time limit provided by the Rules of the High Court.  This is strictly not a matter relevant to this appeal.  Nevertheless, I note that to the extent of the claim of adverse possession is concerned, that has been struck-out and no reply or defence to counterclaim in respect of that is necessary.  Regarding the remaining parts of the counterclaim, Master Hui has on 17 June 2008 given the Plaintiff another 14 days to file and serve the reply and defence to counterclaim.  The Plaintiff has duly done so on 30 June 2008.