LI YIU CHIU v. THE PERSONAL REPRESENTATIVE of the estate of NG WING KOON, Deceased

DCCJ 4914/2021

[2024] HKDC 310

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4914 OF 2021

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BETWEEN

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JUDGMENT

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Background and procedural history

1.  This is an application by the plaintiff (“P”) by Summons dated 4 January 2024 (“the Summons”) against the defendant (“D”) for judgment in default of defence under O 19, r 7 of the Rules of the District Court, Cap 336H (“RDC”).

2.  The following facts are taken from the Re-Amended Statement of Claim (“RASC”).

3.  P, born in Mainland China, migrated to Hong Kong in about 1957.

4.  In about 1970, P quit his then job as a dye worker and worked as a hawker in Wanchai. It was then he met D, who also came from Mainland China in 1960s or 1970s and was also a hawker in the same district. Since then, they became best friends.

5.  In around mid-1972, P and D agreed to purchase a property jointly. Eventually, they jointly purchased 6^th Floor, No 16 Hing Yan Street, Kowloon (“the Property”) and became tenants-in-common by an Assignment dated 6 July 1972 registered in the Land Registry by Memorial No UB904972. P and D were and are still the paper owners of the Property.

6.  Despite D having been given the keys to the Property shortly after it was purchased, D never lived in the Property nor put any of his belongings in the Property. P and his family occupied all the rooms of the Property from 1976.

7.  In around 1978/1979, after the Property caught fire and everything within was destroyed, the Property was renovated and P did not give D a new set of keys to the Property. Since then, other renovations to the Property were carried out by P.

8.  On 14 July 1989, D passed away. Since D had no family and/or relatives in Hong Kong, P arranged the funeral for D.

9.  The present action was commenced by a Writ of Summons issued on 22 October 2021.

Jurisdiction

10.  The rateable value of the Property is within the jurisdiction of this court.

Service

11.  I am satisfied that the Official Solicitor, appointed to represent the estate of D for the limited purpose of accepting service of the Amended Writ of Summons[1], has accepted service of the Amended Writ of Summons.

12.  Furthermore, I would dispense with service of the Summons and proceed in the absence of D’s estate given D is deceased and leave has been given for these proceedings to proceed in the absence of any person representing D’s estate[2].

Applicable principles

13.  The principles applicable to an application for default judgment under O 19, r 7 as well as adverse possession are well-settled and were helpfully summarized by Cheng J in Lee Wah Put and Anor v Li Ip Shing [2022] HKCFI 529, §§5-10 as follows:

“C1. Applications for default judgment

5. On an application for default judgment under O.19 r.7, the court gives such judgment as the plaintiff appears entitled on the statement of claim: O.19 r.7(1). Accordingly, the court will not consider any evidence.

6. It is not the normal practice of the court to make a declaration without a trial. However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied. The court will scrutinise the application carefully and will not hastily grant the relief sought. The declaratory relief should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them. See Hong Kong Civil Procedure 2022, note 19/7/20.

C2. Adverse possession

7. Pursuant to s.38A of the Limitation Ordinance (Cap. 347) (‘LO’) and s.7 of the Limitation Ordinance 1965, actions for recovery of land are statute-barred after twenty years from the date on which the right of action accrued, where the right of action accrued prior to 1 July 1991.

8. 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: s.13 LO.

9. At the expiration of the prescribed period for any person to bring an action to recover land, the title of that person to the land shall be extinguished: s.17 LO. However, the effect of expiration of the period is only that it extinguishes the title of the dispossessed against the squatter; it does not convey the owner’s title to the squatter: Chan Tin Shi & Others v Li Tin Sung & Others (2006) 9 HKCFAR 29 at [13]; St Marylebone Property Co Ltd v Fairweather [1963] AC 510 at 535.

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

14.  As for adverse possession in the context of co-ownership, a co-owner of a land can establish adverse possession against the other co-owner provided that there has been ouster of the latter by the former. An ouster is presumed where there is a long exclusive enjoyment by one co-owner without any demand from the co-owner for account and payment of rent or profits: see eg Cheung Wing Fan v Wong Wai Ping [2021] HKCFI 516, §§7-8 and Ip Wing Fung Davis v Jung Keum Soon [2023] HKDC 1359, §§10-11.

Analysis

15.  According to RASC, P and his family have moved into and occupied the Property in about 1976. It is pleaded that since 1978/1979, the Property has been in P’s exclusive, continuous and uninterrupted physical possession and occupation with the intention to possess the same as the sole owner for at least 20 years.

16.  Furthermore, it is pleaded inter alia that since 1978/1979, D who never lived in the Property, was not given a set of keys to the Property, a new entrance gate to the Property has been installed, P have carried out renovations and repairs, paid all expenses and outgoings of the Property as if he owned the Property without seeking any reimbursement from D. These all show the requisite intention to possess the Property.

17.  I am therefore satisfied that P have sufficiently pleaded a case of having been in exclusive, continuous and uninterrupted possession and occupation of the Property for at least 20 years prior to the commencement of this action, with the requisite intention to possess the Property to the exclusion of the whole world.

18.  Furthermore, I am satisfied that there is a genuine need to grant the declarations sought and it would be appropriate in the present case to grant declaratory relief. I would therefore grant the declarations sought in the Summons save it is not necessary to include the word “indefeasible” for the reason given by Cheng J in Lee Wah Put and Anor v Li Ip Shing at §13. As there is no plea of any successor in title or persons having derived title from D and it is unnecessary, I will also not include those words in the declaration.

19.  I therefore enter judgment for P for:

(1) A declaration that D’s title, interest and/or right in and/or over the Property has been absolutely extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347; and

(2) P had been in continuous adverse possession of the Property for a period of no less than 20 years, prior to the commencement of the present action, and P has thereby acquired and is entitled to the possessory title, interest and/or right in and/or over the Property.

20.  I make no order as to costs of this action including this application.