LI KANG HUNG v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF YU CHOI YING, DECEASED

DCCJ 1090/2019

[2019] HKDC 1536

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1090 OF 2019

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BETWEEN

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JUDGMENT

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APPLICATION

1.  This is the plaintiff’s application under Order 19 rule 7 of the Rules of the District Court for judgment in default of defence. 

HISTORY

2.  Madam Yu Choi Ying (the “Deceased”) is the registered owner of 1/F, No 280 Tai Nan Street, Kowloon, Hong Kong (the “Property”). The Property was bought by the Deceased on 1 September 1970 for HK$35,000. After the purchase, the Deceased cohabited with the plaintiff’s father, Mr Lee Sum (“Mr Lee”), together with her son from a previous relationship, Mr Wong Shui Ling (“Mr Wong”). The Deceased and Mr Lee were never married. The Deceased passed away intestate less than a year later on 24 July 1971. No grant of probate nor letters of administration had been obtained. The Property remains in the Deceased’s sole name and has not been administered or vested in the name of the beneficiary to the Deceased’s estate (the “Estate”). After the Deceased passed away, Mr Lee continued to live in the Property with Mr Wong until Mr Wong emigrated to the USA. Mr Lee then occupied the Property on his own until he moved to a retirement home around 2-3 years before he passed away on 26 June 2001. After Mr Lee passed away, the plaintiff had enquired with Mr Wong to see if he wished to take back the Property as it was registered in the Deceased’s name. Mr Wong was apparently not interested.

3.  Since Mr Lee moved away from the Property, the plaintiff says he has since 26 June 2001 taken up and remained in sole and exclusive possession of the Property and that the Property was all along managed by the plaintiff:

(1) The plaintiff ran a funeral business and he used the sitting room of the Property as a venue for meeting with potential clients. 

(2) Since late 2001, the plaintiff let out the Property for rental income until around 2006 when he began using the Property for his funeral business. He had tidied up the Property in order for it to be in a condition to be leased out.

(3) The plaintiff had paid for and complied with no less than 3 building orders that affected the Property.

(4) The plaintiff had applied for the eviction of a tenant who defaulted in rental payments.

(5) The plaintiff renovated the Property and set up utility accounts after the eviction of a tenant.

(6) The plaintiff eventually kept the Property for his own use for his funeral business. The address on the business registration for his funeral business is that of the Property.

(7) The plaintiff had paid for all utility bills, Rates and Government Rent since occupying the Property.

4.  The plaintiff says he had enjoyed exclusive and continuous and uninterrupted use of the Property that is adverse to the defendant as a paper owner for over 12 years. The plaintiff thus contacted Mr Wong again to inform him of his intention to commence adverse possession proceedings to claim title to the Property. Mr Wong did not object to the Property being vested in the plaintiff and had written a confirmation to that effect.

5.  The plaintiff claims that Mr Wong is the only child of the Deceased and there is written confirmation from Mr Wong to that effect. At the hearing, I enquired with Mr Hu, counsel for the plaintiff as to whether any official search had been carried out at the Birth and Death Registry to ascertain whether the Deceased had any children other than Mr Wong. Mr Hu’s instructing solicitors then made enquiries with the Birth and Death Registry and the Immigration Department and reported that no such search could be carried out. They have subsequently filed an affirmation setting out such enquiries and response on 8^th November 2019.

6.  The plaintiff has issued the present Notice of Motion and claims:

(1) A declaration that the plaintiff is entitled to indefeasible possessory title of the Property by virtue of his open, exclusive, continuous and uninterrupted possession of the Property pursuant to s 17 of the Limitation Ordinance (Cap 347);

(2) A declaration that the plaintiff has acquired all the title, estate, right and interest including the ownership and right to exclusive possession of the Property and that the plaintiff is entitled to be registered as the owner of the Property;

(3) A declaration that the defendant is barred by virtue of s 7 of the Limitation Ordinance from bringing any action to recover the Property.

PROCEDURAL HISTORY

7.  Pursuant to an Order of Master Peony Wong dated 3 April 2019, it was ordered that the proceedings be carried on against the personal representative of the estate of the Deceased, and that the Official Solicitor be appointed to represent the estate of the Deceased for the purpose of accepting service of the Writ. After acceptance of service, the Official Solicitor became functus officio.

8.  Pursuant to an Order of Master Eleanor Yeung dated 4 September 2019, it was ordered that the proceedings be proceeded with in the absence of a person representing the Estate.

9.  The present Notice of Motion was taken out on 16 October 2019, beyond the 14-day deadline to acknowledge service (23 May 2019) and the 28-day deadline to file a defence (21 June 2019).

10.  Although there was no acknowledgment of service, the plaintiff could not proceed under Order 13 of the Rules of the District Court to obtain judgment for the defendant’s failure to file a notice of intention to defend. This is because this is a claim for declarations relating to land and the plaintiff could only proceed under Order 13 rule 6 to proceed with the action as if the defendant had given a notice of intention to defend. The defendant in the present case failed to file a defence. Thus the plaintiff says that he is entitled to proceed under Order 19 rule 7 of the Rules of the District Court to obtain default judgment. 

11.  In Lau Siu Kwong David & Ors v The Personal Representatives of Lee On Yuen, Deceased[1], Recorder Edward Chan S.C. took the same approach in similar circumstances. I agree that it was the proper procedural course to take. This was also endorsed in the recent Court of First Instance case of Seto Yim King v Soo Hooyet Dew[2]

MERITS OF THE APPLICATION

12.  The principles of adverse possession have been set out in the case of Wong Tak Yue v Kung Kwok Wai David & Anor[3].

“The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess.

…

The requisite intention to possess has been referred in various authorities under its latin tag “animus possidendi”

…

“the intention to possess requisite for adverse possession ‘involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.’

13.  Based on the matters set out in paragraphs 2-3 hereinabove, I am satisfied that since the death of Mr Lee (the plaintiff’s father) in June 2001, the plaintiff had been occupying the whole of the Property as if it was his own and that he was in adverse possession of the Property for over 12 years.

14.  However, I am not satisfied that the wording used in the Notice of Motion is the usual orders that will be granted. Accordingly, I make the following declarations:

(1) a declaration that the defendant's title, interest and/or rights in and/or over the Property has been absolutely extinguished by virtue of section 17 of the Limitation Ordinance;

(2) a declaration that the plaintiff has been in adverse possession of the Property for a period of no less than 12 years prior to the commencement of the present action, and has thereby acquired and is entitled to possessory title, interest and/or rights in and/or over the Property; and

(3) there be no order as to costs of this action and of this application.

15.  I thank Mr. Hu for his assistance.