LEE HOI CHING v. LOK FUK DING

HCMP 1678/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1678 OF 2007

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BETWEEN

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J U D G M E N T

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The Application

1.  This application concerns the sale and purchase of a property known as Flat No. 8 on the 17^th Floor of Yick Fat Building (“Flat No. 8”), No. 1048 King’s Road, Hong Kong.  The Defendant was the vendor and the Plaintiff the purchaser in the transaction.  The agreement they made was dated 26 February 2007, which will be referred to in more detail later.

2.  In this application, the Plaintiff claims against the Defendant for having failed to show good title to the property and to sufficiently answer two of the requisitions raised.  The Plaintiff seeks a declaration that he has lawfully rescinded the sale and purchase agreement, and asks for the return of the deposits as well as an award of damages with interest.  The Plaintiff further claims that he is entitled to a lien on the property for the sums found to be due from the Defendant. 

Background

3.  As is common with most multi-storey buildings, the rights and liabilities of the co-owners of Yick Fat Building are defined and regulated by a Deed of Covenant (“the DMC”).  The DMC of Yick Fat Building was executed in 1972.

4.  Under the DMC, Yick Fat Building was notionally divided into 1,570 equal undivided shares.  The 17^th Floor comprised 28 flats.  Two undivided shares were allotted to each of them.  The DMC further provided that Flat No. 8 on 17^th Floor would include areas of the flat roof (“the 17/F Flat Roof”) and the roof above the flat (“the 18/F Roof”).  Therefore, in legal terms, the owner of the 2 undivided shares would be entitled to the sole and exclusive right to use and occupy Flat No. 8, as well as the 17/F Flat Roof and the 18/F Roof.

5.  A survey of the history of the property shows that on 20 January 1977 one Hon Tin Company Limited (“Hon Tin”) became the owner of the 2 undivided shares with the exclusive possession of Flat No. 8, the 17/F Flat Roof and the 18/F Roof. 

6.  On 24 January 1977, Hon Tin assigned the 2 undivided shares to certain Mr. Chen and Madam Chen jointly, but only with the benefit of the exclusive possession of Flat No. 8.  Hon Tin did not assign to the two Chens possession of the 17/F Flat Roof or the 18/F Roof.

7.  On the same day, 24 January 1977, Hon Tin separately assigned to one Ng Fat Tak the right to use and occupy the 18/F Roof. 

8.  Later, on 9 July 1979 Hon Tin further assigned to one Lei Pet Fung the right to use and occupy the 17/F Flat Roof. 

9.  As would be expected, neither of the two conveyances from Hon Tin in respect of the 17/F Flat Roof and the 18/F Roof carried with it assignment of any undivided shares in the land.

10.  In July 1985, the 2 undivided shares with exclusive possession of Flat No. 8 were assigned by the 2 Chens to Messrs. Wong and Chow who in turn assigned the same to the Defendant in June 1988.

11.  The Defendant has never taken possession of the 17/F Flat Roof or the 18/F Roof.  There is no evidence before the Court as to the identity of the current occupants of those premises. 

12.  As already noted, the Plaintiff and the Defendant entered into agreement on 26 February 2007.  Both parties were represented by solicitors.  The Plaintiff’s solicitors will be referred to as “KMLL” and the Defendant’s as “CC” in this judgment. 

13.  The subject matter of the sale and purchase was described in the agreement as follows:

“All those 2 equal undivided 1,570^th parts and shares of and in all that piece or parcel of ground registered in the Land Registry as Section E of Inland Lot No. 8104 and the Remaining Portion of Inland Lot No. 8104 and of and in the messuages erections and buildings thereon now as Yick Fat Building .... together with the right to the exclusive use occupation and enjoyment of all that Flat 8 on the 17^th Floor of the Building.”

14.  It was specifically stipulated in clause 35 of the agreement that the property did not include the roof structure(s)[1]:

“此物業不包括天台屋”

15.  Completion was to take place on or before 29 March 2007 (clause 3).  The agreement further provided that the Defendant as vendor should give and show a good title to the property (clause 16(a)). 

16.  On 27 February 2007, CC sent the title deeds and documents to KMLL.  By their letter dated 7 March 2007, KMLL raised a number of requisitions.  The only requisition that remains a live issue in these proceedings is paragraph 2[2].  That paragraph refers to 3 building orders but only one of them remains relevant for the present purpose, being the Building Order registered under Memorial No. 05050901540560. 

17.  The Building Order in question was issued by the Building Authority on 10 July 2003 pursuant to section 24(1) of the Buildings Ordinance.  The Order concerned certain unauthorized building works which were said to comprise

“(i)    structure(s) on and over the approved balcony(ies) facing Yick Cheong Building and extending beyond the parapet wall; and

 (ii)     structure(s) on and over the approved flat roof facing Yick Cheong Building on 18/F.”

18.  The Building Order was addressed to 3 persons, namely the Defendant, Lei and Ng, as

“owner(s) of Flat 8 & Flat Roof 8 on 17^th Floor and Flat Roof thereof on 18/F, Yick Fat Building .....”

It appears that upon issuance, the said order was served on the 3 addressees[3].

19.  It further appears from the record of the Land Registry that almost 22 months after its issuance, the Building Order was registered on 9 May 2005 against the property comprising Flat No. 8, 17/F Flat Roof and the 18/F Roof.  

20.  In their letter of 7 March 2007, KMLL asked to be informed of the position of the Building Order and the contribution required from the Defendant to secure its discharge.

21.  On 20 March 2007, CC responded in the following terms:

“2.     Please be informed that the Order(s) Memorial Nos. 05050901540560 .... [is] not related exclusively to the above property.”

The reference to the “above property” is presumably Flat No. 8 which appears at the heading of the letter.

22.  KMLL pursued the requisition in their letter of 26 March 2007, pointing out specifically that the Order was an incumbrance against the property.  This further inquiry was apparently ignored by CC who in their reply of 10 May 2007 made no attempt to deal with the Building Order in question.

23.  Eventually on 8 June 2007, taking the view that the Defendant had failed to answer the requisitions, the Plaintiff accepted the Defendant’s repudiation of the agreement and demanded the return of the deposits. 

24.  It transpired at the hearing, however, that the Building Order in question was in fact withdrawn by the Buildings Department on 20 March 2007.  The Defendant (who was not legally represented) produced a letter from the Buildings Department[4] addressed to the Defendant, Ng and Lei, informing them of the withdrawal.  The reason for the withdrawal was apparently because of “a discrepancy” between the status of the addressees of the Order and the information as to property ownership on the Land Register.  The letter warned, however, that a fresh building order would be issued.  There is no evidence before the Court whether in fact it was.

25.  According to the most recent search of the Land Register[5], this letter of withdrawal was in fact registered on 24 April 2007.

26.  However, I was told by Miss Wong (representing the Plaintiff) that when the Plaintiff decided to terminate the agreement on 8 June 2007, the withdrawal of the Building Order was never drawn to the attention of the Plaintiff.  The Plaintiff was not aware of the existence of such a letter from the Buildings Department. 

27.  But as to why the letter of withdrawal has only come to light at this stage of the proceedings, I am not in a position to tell.  As will also become apparent later, a number of questions have arisen in connection with the Building Order but unfortunately such questions appear not to have been satisfactorily or sufficiently dealt with either at the time of the conveyance or when the matter is now litigated before the Court. 

Analysis – Registration of the Building Order

28.  The Land Register concerning the relevant property relates not only to Flat No. 8, but the whole of Flat No. 8, the 17/F Flat Roof and the 18/F Roof.  Under “Owners Particulars”, the history of the property shows Ng’s name with a remark that the assignment to him relates only to the 18/F Roof.  The record also shows Lei’s name with a similar remark as to the 17/F Flat Roof.  Likewise, for the Defendant, a remark was entered stating that the assignment to him relates only to Flat No. 8.

29.  In these proceedings, there is no dispute that when requisition was raised by KMLL in relation to the registration of the Building Order, the Defendant’s property was indeed shown on the record to have been encumbered by such registration.  Such being the case, there is prima facie a duty on the Defendant to provide a satisfactory answer to the requisition. 

30.  As will become apparent later, although the present proceedings are capable of being disposed of by dealing only with the sufficiency or adequacy of the Defendant’s answer to the requisition, I feel that it may help if I set out what I consider to be the issues arising from the circumstances of the case which, in my view, may not have been properly focused upon or addressed. 

31.  As earlier noted, the Building Order in question was issued and served on or about 10 July 2003 pursuant to section 24(1) of the Buildings Ordinance.  It would be appreciated that section 24 of the Ordinance was amended in 2004.

32.  Prior to its amendment, section 24 provided in subsection (1) that the Building Authority may issue an order to require the demolition of building works which had been or were being carried out in contravention of the Ordinance.  Then, significantly, subsection (2) provided that:

“(2)   An order made under subsection (1) shall be served, where –

(a)     ……;

(b)     the building works, …. have been completed, on the owner thereof;

(c)     ……;

(d)     the building works …. have not been completed, on the person for whom such works are being carried out or his agent.”

33.  Before the amendment, section 24 did not provide for the registration of an order issued under subsection (1).  What the then section 24 provided was that in the event of default in compliance with the building order, the Building Authority would be empowered to carry out the demolition of the unauthorized works and the costs would be recoverable from the person upon whom the order was served.  By virtue of section 33, the Building Authority would be entitled to certify the costs incurred.  A memorial of such a certificate is registrable against the title of the premises or land in respect of which such costs arose.  

34.  As a result of the 2004 amendment, instead of service of the building order on the owner of the unauthorized works, the current section 24(2) requires the building order to be served on the owner of the land or premises on which the unauthorized building works have been or are being carried out.  The current section 24 also provides in subsection (2C) that the Building Authority may, upon the service of such an order, cause the order to be registered in the Land Registry against the land or premises concerned.

35.  In the present case, as the Building Order was issued and served in 2003, the first question that arises is whether its service on the Defendant was valid according to the legislation then in force.

36.  That, in turn, requires an inquiry into the ownership of the alleged unauthorized works.  In Ever Famous Limited v. Donny International Limited, HCA 1507 of 1998, when commenting on the pre-2004 version of the Buildings Ordinance, Mr. Recorder Kwok SC said:

“…. Section 24(2)(b) provided that service of the Order should be effected ‘on the owner thereof’.  In my judgment, that meant the owner of the completed building works, that is to say the owner of the Structure.  There is no statutory authority for the Building Authority to serve the section 24(1) order on any other person. ….” (para. 63 of the Judgment)

37.  In the present case, there is no information as to ownership of the structures in question.  However, as noted earlier, the Building Order refers to the first structure as being located “on and over the approved balcony(ies) …. extending beyond the parapet wall”, whereas the second structure “on and over the approved flat roof ….”  Although the available information does not enable me to ascertain their precise locations, these descriptions strongly suggest that the alleged unauthorized structures were situated in areas other than the Defendant’s Flat No.8.  This appears also to explain why the Building Order was addressed not only to the Defendant, but also to Ng and Lei.

38.  In these circumstances, assuming that the offending structures were situated on the 17/F Flat Roof and/or the 18/F Roof and that the Defendant has never physically occupied those parts of the building, can it be said that the Defendant should nonetheless be regarded as the “owner” of the structures by reason of his entitlement to possession of those parts of the building under the DMC[6]? 

39.  In Nation Group Development Limited v. New Pacific Properties Limited, CACV 160 of 1999, the purchaser complained that the vendor had failed to give a good title to the property because of the presence of unauthorised building works on the underside (or soffit) of a canopy of which the vendor had the exclusive use.  In deciding that the vendor was not the “owner” of the works, Godfrey JA said:

“To test the purchaser’s case, it is necessary to consider what precisely was comprehended in the allocation, to the undivided shares the subject of the sale to the purchaser, of the right to the exclusive use of ‘the First Floor and its Canopy and Flat Roof’.  In my opinion, this includes the right to the exclusive use of the floor and ceiling surfaces of the First Floor and of the air space between them; and of all the external surfaces of the canopy and flat roof.  It does not include any right to any part of the structure of the building.  The ‘owner’ of the ‘First floor and its Canopy and Flat Roof’ is ‘the owner’ of these premises only to the limited extent I have mentioned; that ‘owner’ is not the ‘owner’ of the unauthorised building works affixed by others for their own enjoyment to the underside of the canopy, even though that ‘owner’ is entitled to the exclusive use of the external surfaces of the canopy.”  (italics as in the original)

40.  In this connection, the observation of Litton JA (as he then was) in Active Keen Industries Ltd. v. Fok Chi-keong [1994] 1 HKLR 396 (especially at 408, lines 14 to 23) is also relevant.

41.  Taking the above dicta into account, I think it is strongly arguable that the Defendant should not be regarded as “owner” of the offending building works mentioned in the Building Order.  If that be the case, it follows that he could not be required to undertake any demolition work or any other measures of rectification.  He was simply not the subject of enforcement of the Building Order. 

42.  On the other hand, it is already noted that the Building Order was registered in 2005.  Presumably the registration was effected pursuant to section 24(2C) of the Ordinance, introduced by way of the 2004 amendment.

43.  Section 24(2C) is in the following terms:

“(2C)   The Building Authority may, upon the service of an order under subsection (2)(a), …. cause the order to be registered in the Land Registry against –

(a)   if the order has been served on the owner of any land or premises in accordance with subsection (2)(a) …., the land or premises”   (emphasis added)

44.  It would be remembered that subsection (2)(a) was also amended in 2004.  To replace the former requirement of service on “owners of building works”, the current section 24(2)(a) provides that:

“(2)   An order made under subsection (1) shall be served on –

(a)     in the case of ..... building works .……, the owner of the land or premises ....... on which the building works have been or are being carried out” (emphasis added)

45.  As I see it, the circumstances of the present case have given rise to the following questions:  First, assuming the offending structures were situated on the 17/F Flat Roof and the 18/F Roof, should the Defendant nevertheless be regarded as the “owner of the land or premises on which the building works have been carried out” for the purpose of the current section 24(2)(a), by reason that he has been given the exclusive right to possess those parts under the DMC in addition to Flat No.8?  Second, was the Building Order which had been served under the pre-2004 regime properly registrable under section 24(2C), assuming that the Defendant could be regarded as the “owner of the land or premises on which the building works have been carried out” for the purpose of the current section 24(2)(a)?    

46.  I would hesitate to express any concluded view on these questions not only because they are points of some importance on which I have not had the benefit of full argument, but also I feel constrained by the lack of clear evidence and hence the need to make certain assumptions of fact for the purpose of these discussions.  My views are therefore necessarily tentative only.

47.  On the first question, I do not find it easy to ascertain the meaning of the phrase “owner of the land or premises on which the building works have been carried out” in subsection (2)(a).  Neither have I found the definition of “owner” in section 2 of much assistance.  On one view, it may be argued that since the system of land ownership is such that, strictly speaking, no co-owner can speak of “owning” his particular unit or any particular area in the building, the reference in subsection (2)(a) to “the owner of the land or premises” should be interpreted as meaning all the co-owners of the land or premises.  On this argument, it would have been permissible for the building order to be served on all or any of such co-owners, irrespective of where exactly the offending building works are located in the building.

48.  However, I would find it unlikely that such an interpretation was intended by the draftsman of the provision.  Section 24 is one of the enforcement provisions.  Building orders issued under section 24(1) mandate the demolition or alteration of offending building works.  Any recipient of such an order who fails to comply with it is potentially liable to criminal prosecution[7].

49.  Viewed thus, it is far more likely that the legislature has intended the subject of the service of the building order to be someone who has effective control over the parts on which the offending building works are situated, and can be compelled to take effective measures to rectify any unauthorized works.  Were it otherwise, all co-owners who have no effective control over their neighbours’ premises nor other practical means of ensuring compliance, would potentially be exposed to enforcement actions, including having their property encumbered by registration of the order and/or criminal proceedings.  I do not believe this is the intended result.

50.  Giving it a purposive construction, the phrase “the owner of the land or premises on which the building works have been or are being carried out” should in my view be properly confined to mean “the owner” of the parts of the building in which the authorized works are located.  For those parts of the building where exclusive possession is allocated to any one of the co-owners, he is the “owner” for the purpose of enforcement.  For common parts, the “owner” may well be all the co-owners together.

51.  As deeds of covenants providing for exclusive possession among the co-owners are registrable instruments (and indeed invariably registered), I do not believe the Building Authority would have difficulty ascertaining “ownership” for the purpose of enforcement. 

52.  In the present case, notwithstanding the fact that the Defendant has not physically taken possession of the 17/F Flat Roof or the 18/F Roof, I am inclined to the view that he is nevertheless “the owner of the land or premises on which the building works have been carried out” within the meaning of the current section 24(2), by reason of his entitlement to exclusive possession of those parts under the DMC.

53.  On the second question, as the Building Order was served in 2003 which, in my view, improperly on the Defendant, there was no obligation on him to comply with it.  In 2003, the Defendant could justifiably have ignored the order.  In the circumstances, I do not believe that an order which had previously been served improperly should now be treated as having been validly served on the Defendant just because after the 2004-amendment he is to be regarded as “the owner of the land or premises” in question and thus caught by the wording of the current provision.  In coming to this view, I have again taken into consideration the potential consequence of attracting criminal liability upon non-compliance with the order.

54.  Accordingly, I do not think that the requirement under section 24(2C) that the Building Order should have been served on “the owner of [the] land or premises in accordance with subsection 2(a)” is met.  In my view, the validity of the registration of the Building Order is very much open to question.

55.  However, I reiterate that it is not my intention to determine conclusively the questions as to the propriety of the service of the Building Order (insofar as it concerns the Defendant) or the validity of its registration against the Defendant’s property.  I have discussed these questions at some length to enable the parties to see that there may well be a good answer to the requisitions concerning the Building Order’s registration had the matter been properly analyzed and investigated.

56.  I wish now to turn to another point arising in this matter. 

Clauses 13 and 14 of the agreement 

57.  I should refer to clauses 13 and 14 of the agreement briefly. 

58.  Clauses 13 and 14 provide as follows:

“13.   (a)      The Vendor hereby warrants and declares that the Vendor has not received and is not aware of there being any notice or order issued from the Government or other competent authority requiring the Vendor to demolish or reinstate any part of the Property.  If it should be discovered that any such notice or order existed or issued on or prior to the date of completion, the costs for such demolition or re-instatement shall be borne by the Vendor.

          (b)       ……

         (c)      The Vendor hereby undertakes to notify the Purchaser forthwith upon receipt of any of the aforesaid notice or order.            

14.    The Vendor hereby declares that he has not received any notice under ….. the Buildings Ordinance Cap.123 or any other form of notice or order of similar nature affecting the Property or any other form of notice or order from any Government Authority the implementation of which would affect the Property ……  If it shall be ascertained on or before completion of the purchase that the Property is affected by any of the said Ordinances, or any such notice or order, the Purchaser may by notice in writing to the Vendor rescind this Agreement ….. and in the event of the Vendor not having received such notice prior to the date of completion the Purchaser shall be deemed to have agreed to purchase with full knowledge that the Property are so affected by the said Ordinances or any of them.  The Vendor hereby undertakes to notify the Purchaser forthwith upon receipt of any of the aforesaid notices.”

59.  By clause 13(a), the Defendant has warranted that he was not aware of any building order requiring him to demolish or reinstate any part of the Property.  This is obviously intended to provide for building orders issued under section 24 of the Ordinance.  Considering both clauses 13 and 14 together, building orders requiring demolition of building works are clearly to be governed by clause 13, and not clause 14.

60.  I mention this because clause 14 deems the Plaintiff “to have agreed to purchase the Property with knowledge” of certain notices issued under various Ordinances, including the Buildings Ordinance, if he does not exercise his option to rescind.  Such deeming has no application to clause 13.

61.  In the present case, the Building Order in question undoubtedly required demolition of certain unauthorized works.  Its effect is to be considered under clause 13 (if applicable), and not clause 14.  Therefore, the Defendant would not be entitled to rely on the deeming provision in clause 14 either to argue that the Plaintiff was precluded from raising any requisition in respect of the Building Order, or has foregone its right to terminate the agreement arising from its registration against the property.

62.  Indeed, I would hold the same view notwithstanding that “the Property” as defined in the agreement does not include areas other than Flat No.8 and arguably therefore clause 13 may not apply to the Building Order in question.  But whether or not clause 13 applies is irrelevant.  It does not follow that just because clause 13 is inapplicable, clause 14 should apply and the deeming provision becomes engaged. 

63.  Once the conclusion is reached that there is no provision in the agreement which bars the Plaintiff from raising requisitions in respect of the Building Order, it is obvious to me that the requisition in KMLL’s letter of 7 March 2007 was properly raised, given that the Defendant’s property was indeed shown on the Register to have been encumbered by the registration of the order at the time.

Answer to the Requisition

64.  I have already set out CC’s reply to the requisition in paragraph 21 above.  CC’s answer that the Building Order did not relate exclusively to Flat No. 8, the subject of the sale and purchase, was nowhere to the point.  Whether or not the Building Order related also to other premises is irrelevant.  What matters is that its registration, unless shown to be invalid, constituted an incumbrance and prima facie a blot on the title of the Defendant’s property.  Neither the Defendant nor CC on his behalf had provided any satisfactory or adequate answer.

65.  I should also mention that the subsequent withdrawal of the Building Order does not assist the Defendant.  First, the letter of withdrawal was never proffered by the Defendant as an explanation to the inquiry by KMLL.  In this regard, even the subsequent registration of the withdrawal letter did not relieve the Defendant of his duty to satisfactorily deal with the Plaintiff’s requisition, which had been properly raised in the first place.  Furthermore, the withdrawal letter itself made it clear that a fresh order would be issued.  Hence, questions arising from the offending structures, the risk of the Building Authority taking enforcement action and its effect on the title of the property all remained to be dealt with: see Heung Sui Kei v. Benefit Charter Ltd. [1999] 3 HKC 543; Sunny Shine Investment Limited v. Eve International Enterprise Limited, HCMP 1953 of 2007.

66.  In short, I find that the requisition set out in paragraph 2 of KMLL’s letter dated 7 March 2007 has not been sufficiently answered by the Defendant, and that the Defendant has failed to discharge his obligation to show a good title to the property.  The Plaintiff has lawfully terminated the agreement and he is entitled to the return of the deposits and damages for the loss he has suffered.

67.  I should not leave this judgment without expressing misgivings about certain matters in this transaction.  I am troubled by the fact that CC had not responded at all to KMLL’s letter of 26 March 2007.  I do not have any information as to the view they took in respect of the requisition.  Assuming CC were to take the view that the registration of the Building Order had presented an insuperable difficulty for the Defendant, then one cannot help but ask:  Why was the registration of the Building Order not noticed before contract?  If a search had been properly conducted, given the practice that the formal sale and purchase agreement was usually drafted by the vendor’s solicitors, then why would the Defendant be allowed to commit himself to an agreement he was not able to perform?  Why would the agreement provide for various warranties and declarations to be given by the Defendant in clauses 13 and 14?

68.  But on the other hand, if a view was taken that the subsisting registration of the Building Order would not have presented the Defendant with any problem as to title, then there would have been no conceivable reason why the Plaintiff’s requisition was simply ignored. 

69.  Of course, I do not have all the information to enable me to draw any conclusion on these questions.  There may well be good explanations.  I mention these matters because the Defendant has informed me that his application for legal aid to consider whether he has any recourse against his former solicitors has been refused and his appeal against such refusal has been rejected.  I feel in the circumstances that it is only right that I should at least highlight some of the questions that may merit further consideration.

Conclusion

70.  I would grant the declarations sought in paragraph (a) (with the deletion of the reference to requisition no.5), as well as paragraphs (b) and (c) of the Originating Summons.  I would also grant the reliefs sought in paragraphs (d) and (e) for the return of the deposit in the sum of $88,800 and damages for $14,500 with interest accruing on both sums at the same rate as HSBC’s best lending rate prevailing from time to time from the date of the Originating Summons until judgment, and thereafter at judgment rate until payment.  I would further declare that the Plaintiff is entitled to a lien on the property until payment by the Defendant of the sums plus interest aforesaid.

71.  I would make an order nisi that the Defendant should pay the Plaintiff’s costs of these proceedings, to be taxed if not agreed.

[1] Clause 35 was inserted in Chinese despite the rest of the agreement was in English.

[2] In the Originating Summons, the Plaintiff sought also to contend that paragraph 5 of the requisitions had not been sufficiently answered.  However, counsel for the Plaintiff accepted at the hearing that paragraph 5 would not be relied upon for the purpose of the present application, and hence required no determination by the Court.

[3] See letter from the Buildings Department dated 18 December 2006.

[4] The Plaintiff did not object to the admission of this letter as evidence.

[5] The search was apparently conducted by the Plaintiff during the lunch adjournment at the hearing.  The parties agreed that I could take note of the information revealed by this search.

[6] In order not to complicate the discussion for the present purpose, I would leave aside the question whether Ng and Lei may be able to establish adverse possession as against the Defendant in relation to the parts held respectively under their names.

[7] Section 40(1BA)