LEE PING SUM v. THE PERSONAL REPRESENTATIVES OF THE ESTATE OF NG HOI LING PAULINE, DECEASED

DCCJ 4192/2018

[2019] HKDC 925

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.4192 OF 2018

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DECISION

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1.  On 6 June 2019, the plaintiff took out an inter parte summons for default judgment against the defendant, seeking 3 declarations of adverse possession (the Summons).

2.  This application is said by Mr Avery Chan (Mr Chan) appearing for the plaintiff to be based on O.13 r.6(1) & O.19 r.7(1) of the Rules of District Court (RDC).

3.  O.13 r.6(1), RDC, reads:

“Where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend”.

4.  The material parts of O.19 r.7(1), RDC, reads:

“Where the plaintiff makes against a defendant …a claim of a description not mentioned in rules 2 to 5, then, if the defendant… fails … to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim”.

Procedural history

5.  On 18 Sept 2018, the writ of summons specially indorsed with statement of claim (SOC) was issued against the defendant with an unknown address of service.

6.  In SOC, the plaintiff claims declaratory relief. It is thus a claim of a description not mentioned in O.13 rr.1-4, RDC. Neither is it a claim of a description mentioned in O.19 rr.2-5, RDC.

7.  On 25 Jan 2019, by joint application of plaintiff and Official Solicitors (OS), an order was by consent obtained from Master that OS be appointed to represent the defendant limited to accepting service of the writ of summons.

8.  On 1 Feb 2019, the writ of summons was by hand duly served on the OS, according to an affidavit of service filed with court.

9.  Despite the expiry of prescribed time, no notice of intention to defend was filed by or on behalf of the defendant.

10.  Hence, pursuant to O.13 r.6(1), RDC, the plaintiff proceeded with this action as if that defendant had given notice of intention to defend (that in effect prevents him from obtaining judgment in default of notice of intention to defend).

11.  On 26 Feb 2019, the plaintiff obtained ex parte from Master an order that this action shall be proceeded in the absence of any person representing the estate of Ng Ho Ling Pauline (吳賀齡), deceased (the Deceased).

12.  Notwithstanding the expiry of time under RDC for the service of defence, no defence was served on the plaintiff by or on behalf of the defendant.

13.  Hence, pursuant to O.19 r.7(1), RDC, the plaintiff took out the Summons to apply for judgment as he appears entitled to on SOC.

Service of the Summons not required

14.  On the hearing of the Summons, nobody turned up for the defendant.

15.  Save having served the Summons on OS for their information, the plaintiff, Mr Chan acknowledged, has not served the Summons on the defendant.

16.  Mr Chan submitted by reference to O.65 r.9, RDC, and the case of Chan Pui Lok Daniel v Personal Representatives of Leung Shu Ming [2017] 4 HKLRD 625 that service of the Summons on the defendant is not, and should not be, required in the circumstances of this case.

17.  I agree.

18.  O.65 r.9, RDC, reads:

“Where by virtue of these Rules any document is required to be served on any person but it is not required to be served personally or in accordance with Order 10, rule 1(2), and at the time when service is to be effected that person is in default as to acknowledgment of service or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these Rules otherwise provides”.

19.  Under RDC, the Summons is not required to be served personally nor served in accordance with O.10 r.1(2), RDC. In this case, the defendant is in default as to acknowledgment of service and has no address for service. There is no rule in RDC which specifically requires the Summons to be served in the circumstances before me[1].

20.  I do not see fit to direct the plaintiff to serve the Summons otherwise in the circumstances of this case. The 2 orders made by Master plainly, I think, showed that there is no personal representative of the estate of the Deceased and that there is no person interested in the said estate available to be appointed to represent it. Given that the Deceased has passed away (and not merely, say, disappeared), it is, I think, pointless to serve the Summons on the defendant after the 2^nd order of Master was obtained by the plaintiff to dispense with representation for the said estate.

21.  And I agree with the reasoning to the above effect in Chan Pui Lok Daniel, supra, at para 9-19 thereof.

Principles for default judgment for declaratory relief

22.  In application under O.19 r.7, RDC, the court cannot receive any evidence, but must give judgment according to the pleadings alone: Hong Kong Civil Procedure 2019, Vol.1, para 19/7/11 at p.514.

23.  The statement of claim must show a case for the order that applicant seeks to obtain. A defective statement of claim which fails to prove the plaintiff’s case will result in dismissal of the application: Hong Kong Civil Procedure 2019, Vol.1, para 19/7/14 at p.515.

24.  The court’s power to grant judgment under O.19 r.7, RDC, is discretionary. The court’s task is to see whether the plaintiff appears to be entitled to judgment on his statement of claim: Hong Kong Civil Procedure 2019, Vol.1, para 19/7/14 at p.515.

25.  It is not the practice of the court to make a declaration of right in default of defence or without trial.However, this is only a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled: Hong Kong Civil Procedure 2019, Vol.1, para 19/7/14 at p.515.

26.  The said rule of practice should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied. Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought. The declaratory reliefs to be granted should not be in terms wider than what the plaintiff is entitled to and what is necessary to do justice to him: Hong Kong Civil Procedure 2019, Vol.1, para 19/7/20 at p.516.

Applicable provisions of Limitation Ordinance, Cap.347 (LO)

27.  No action shall be brought to recover any land after the expiration of 12 years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person: s.7(2) of LO.

28.  Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance: s.8(1) of LO.

29.  No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (referred to as adverse possession) and where any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land: s.13(1) of LO.

30.  At the expiration of the period prescribed by LO for any person to bring an action to recover land, the title of that person to the land shall be extinguished: s.17 of LO.

Applicable adverse possession principles

31.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai & Another (No.2) (1997-98) 1 HKCFAR 55, 68E.

32.  The principles enunciated by Slade J in Powell v McFarlane (1979) 38 P & CR 452 are taken to be authoritative:  Wong Tak Yue, supra, at 68F.

33.  Factual possession signifies an appropriate degree of physical control. It must be single and exclusive. An owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.What constitutes a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed: Powell v McFarlane, supra, pp.470-471.

34.  The intention to possess involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the paper owner if he be not himself the possessor, so far as is reasonably practicable and so far as the process of law will allow: Powell v McFarlane, supra, pp.471-472.

35.  The court requires clear and affirmative evidence that the trespasser not only had the requisite intention to possession, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite intention to possession and consequently as not having dispossessed the owner: Powell v McFarlane, supra, p.472.

36.  A revocable licence is automatically terminated by death of the licensor. It is not necessary for the licensee to have received notice of the death. Exclusive physical possession and intention to possession could be demonstrated by a claimant continuing in possession attributable to no continuing licence: Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649, 652A-E, 654B-F.

SOC proving declaratory relief sought

37.  The gist of the plaintiff’s claim as alleged or pleaded in SOC is as follows.

38.  By a 1971 assignment, flat 7D (the Property) of a building at Nathan Road, Kowloon (the Building) became vested in one Madam Wong and the Deceased as joint tenants. Madam Wong died in 1980 and, since then, the Deceased, as the sole surviving joint tenant, had become the sole owner of the Property.

39.  In or about 1996, the plaintiff rented flat 3C of the Building as an office for his business. He was appointed the secretary of the Incorporated Owners of the Building in or about May 1998. In the course of carrying out his secretarial duties, he had the opportunities to build up good relationship with, inter alia, the Deceased, who, he observed, was at bad health. Out of compassion, he brought meals and did cleansing and tidying up work at the Property for the Deceased at no costs. The Deceased and the plaintiff, it was pleaded, had developed close relationship.

40.  In or about Sept 2002, the Deceased had to undergo a surgical operation at Queen Elizabeth Hospital (QEH). Before her admission to QEH for the operation, the Deceased, it was alleged, handed to the plaintiff keys to the Property and the mail box thereof, requesting him to take care of the Property during her stay at QEH. The plaintiff, it was said, agreed. It is averred that this is the permission and/or licence (the Licence) granted by the Deceased to him to enter and stay at the Property.During the Deceased’s stay at QEH, the plaintiff kept on doing regular cleansing and tidying up work at the Property and visited the Deceased at QEH frequently.

41.  The Deceased, however, died after the operation on or about 1^st Oct 2002. The plaintiff dealt with the Deceased’s funeral matters including application for certificate of cremation.

42.  After the death of the Deceased, the plaintiff, it was said, moved into the Property and has used the Property as an office. He then terminated the tenancy of flat 3C of the Building in or about early 2003.

43.  It is averred that the Licence was terminated upon the death of the Deceased on 1^st Oct 2002 and the plaintiff has commenced adverse possession thereafter.

44.  It is alleged that the plaintiff has, since the death of the Deceased, been in continuous and exclusive management, control and possession of the Property. The particulars given are that: -

(1)   He changed the main door lock of the Property shortly after the death of the Deceased.

(2)   In 2004, he carried out substantial renovation and maintenance of the Property at the costs of $9,500 with costs of materials not included. He also changed the iron gate lock of the Property.

(3)   He applied for supply of water and electricity to the Property in his own name accounts in or about June 2004 and July 2004 respectively and paid the deposits for supply of water and electricity in the sums of $400 and $750 respectively.

(4)   He has paid the management fee, rates and government rent of the Property since the death of the Deceased.

(5)   He used the address of the Property as the correspondence address for his bank and credit cards accounts, mandatory provident fund and others.

(6)   He paid the due share of contribution for maintenance, repair and renovation charges of the Building attributable to the Property in the respective sums of $3,553 in 2004, $53,929 in 2012 and $23,400 for replacing lift of the Building in 2015.

(7)   He expended money on regular maintenance of the Property, like, painting and whitewashing the interior of the Property.

(8)   On the understanding that the Property has belonged to him, he allowed his relatives to use the Property for goods storage since or about 2006.

45.  Accordingly, it is alleged that the plaintiff has adversely obtained possessory title of the Property by his continuous and exclusive management, control, occupation and use of the Property since the Deceased’s death and plaintiff’s adverse possession of the Property is still continuing.

46.  Since the death of the Deceased, the plaintiff has conducted diligent search among the papers and effect of the Deceased for any will made by her but had been unable to find such will. According to land search of the Property, which forms part of the estate of the Deceased,there is no grant of representation in respect of the estate of the Deceased registered against the Property.

47.  It is pleaded that the plaintiff, being adverse possessor of the Property, has been in adverse possession of the Property for more than 12 years before commencement of the present action.

48.  By reason of ss.7(2) and 17 of LO, the right of the defendant to bring any action to recover the Property has been time barred and her title in relation to the Property has been extinguished.

49.  Further, the plaintiff, it was said, has acquired an indefeasible possessory title over the Property.

50.  On plaintiff’s case as pleaded above, I agree with Mr Chan that the plaintiff had obtained a bare licence (and consent) from the Deceased to enter and stay at the Property for such time during her stay at QEH for operation purpose. Such licence is revocable at any time at the will of the Deceased.

51.  And I further agree, on the authority of Ho Hang-wan, supra, that the said licence terminated automatically upon death of the Deceased on or about 1^st Oct 2002 (in any event, on the facts pleaded, the plaintiff should have known about such death soon afterwards to deal with the Deceased’s funeral matters).

52.  On the pleaded facts, after the death of the Deceased, the plaintiff moved into the Property and he has been in continuous and exclusive management, control and possession of the Property, which possession is still continuing. The said continuing possession of the Property is, I agree with Mr Chan, not attributable to any licence or consent from the Deceased.

53.  The crucial question is whether or not SOC proves that the plaintiff has been in continuous adverse possession of the Property (having both factual possession and intention to possess at the same time) for more than 12 years before the commencement of this action i.e. since no later than 18 Sept 2006.

54.  The reason is that no right of action to recover the Property shall accrue to the estate of the Deceased unless and until adverse possession is taken of it: see s.13(1) of LO.

55.  Mr Chan first submitted before me that the plaintiff had “dispossessed” the estate of the Deceased, and has started taking adverse possession, of the Property “after” the death of the Deceased.

56.  I have reservation about the alleged timing as submitted by Mr Chan. After the death of the Deceased, the plaintiff still saw fit to conduct diligent search of her papers and effects for any will made by her in order to discover, one suspects, the beneficiaries and personal representatives of the estate of the Deceased.

57.  But, for the following reasons, I agree with Mr Chan’s further submissions that the facts pleaded in SOC do establish plaintiff having factual possession of the Property and intention to possess it i.e. adverse possession of the Property for a continuous period of 12 years commencing no later than 18 Sept 2006.

58.  In this respect, Mr Chan addressed me much on the similarities between plaintiff’s case as pleaded and the case of Tam Wing Chung v U Ha Min also known as Tam Man, unreported, HCA 1598/2014, 19 Apr 2017, whose facts I have paid regard to.

59.  For plaintiff’s case, on factual possession, I think one must bear in mind that the Property is a flat in a multi-story building which existed since at least 1971. As such, it is commonly used or enjoyed as residence, office and/or storage.

60.  On the facts pleaded in SOC, I agree that the plaintiff, since no later than 18 Sept 2006, has exerted sufficient degree of exclusive and continuous physical control of the Property to have dispossessed the estate of the Deceased.

61.  The plaintiff not only moved into the Property to use it as his office after the death of the Deceased, he also prevented others from using it by changing its main door lock shortly after such death and by changing its iron gate lock in 2004. He went one step further by allowing his relatives to use it for goods storage since or about 2006. These, I agree, suffice to establish factual possession in our context according to the principles in Powell v McFarlane, supra.

62.  Moving to intention to possess, the following 4 pleaded conducts of the plaintiff are, I think, equivocal. They are:

(1)   plaintiff’s application for utilities accounts of the Property in his own name;

(2)   plaintiff’s payment of management fee, rates and government rent of the Property;

(3)   plaintiff using the Property as his correspondence address with banks etc.; and

(4)   plaintiff expending money on regular maintenance of the Property like painting and whitewashing its interior.

63.  The above pleaded conducts are, one thinks, open to more than one interpretation and, had the plaintiff relied on them alone in SOC, I would not have considered him to have made clear his intention to possess the Property (and to exclude the estate of the Deceased from it as best he can) to the world at large.

64.  The balance is, I agree with Mr Chan, tilted by the remaining facts pleaded in SOC.

65.  On top of matters pleaded in para 61, knowing from his diligent search of papers and effects of the Deceased that she left no will, the plaintiff saw fit to have terminated his tenancy of flat 3C of the Building in or about early 2003 after moving into, and using, the Property as his office after her death. In 2004, he further saw fit to have carried out substantial renovation of the Property and paid due share of contribution for the maintenance, repair and renovation charges of the Building attributable to the Property.

66.  Considering these conducts as a whole, I agree with Mr Chan that the plaintiff had, since no later than 18 Sept 2006, made it perfectly clear to the world at large his intention to exclude the world, including the estate of the Deceased, from the Property as best as he can in his own name and on his behalf.

67.  The requisite intention to possess for the same continuous period of at least 12 years before this action has, I think, also been established from SOC on the principles of Powell v McFarlane, supra.

68.  Accordingly, the right of the defendant to bring any action to recover the Property from the plaintiff has been time barred under s.7(2) of LO and her title in relation to the Property has been extinguished under s.17 of LO.

69.  And the plaintiff has acquired an indefeasible possessory title to the Property as against the defendant.

Appropriate to make declaration in this case

70.  I am fully conscious of the rule of practice at para 25 and the reasons behind it. But it is also my duty to do the fullest justice to the plaintiff to which he is entitled.

71.  I agree with Mr Chan that the plaintiff has a genuine need for the declaratory relief he seeks and justice would not be done to the plaintiff if this application is denied. Such relief is, after all, the only relief he sought in SOC. After careful scrutiny of SOC, this court can discern nothing special or suspicious that justifies or requires the plaintiff to prove his case by evidence at trial.

72.  I therefore decide to depart from the said rule of practice and exercise my discretion to grant the declarations sought in the Summons without trial, but in terms no wider than it is necessary to do justice to the plaintiff.

Disposition

73.  I make an order in terms of para 1 of the Summons with the words “Sections 7(2) and 17” thereof replaced by the words “Section 7(2)”.

74.  I make another order in terms of para 2 of the Summons with the words “Sections 7(2) and 17” thereof replaced by the words “Section 17”.

75.  And I make a 3^rd order in terms of para 3 of the Summons with the words “a good and” thereof replaced by the word “an”.

Costs

76.  Mr Chan indicated before me that the plaintiff does not apply for costs.

77.  I therefore order that there be no order as to the costs of this action and this application.

78.  Finally, I thank Mr Chan for his assistance.