WU KAI WAI AND OTHERS v. Occupants of Lot No.316 in D.D. 128, Yuen Long, New Territories AND ANOTHER

DCCJ 3740/2017

[2022] HKDC 253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3740 OF 2017

________________

BETWEEN

________________

___________________

DECISION

___________________

1.  This is a decision by way of paper disposal of an application by the 1^st to 6^th plaintiffs (the “plaintiffs”) for a variation of costs order nisi in the judgement dated 21 December 2021 (the “Judgment”).

Background

2.  This is an adverse possession claim: the plaintiffs were the registered owners seeking vacant possession etc. from the 2^nd defendant, who claims adverse possession. The substantive background is stated in the Judgment and needed not be repeated here.

3.  In short, the plaintiffs claimed the existence of an oral tenancy agreement. This was rejected by the court. The 2^nd defendant claimed adverse possession of the whole of the relevant lot since 1994. This was also substantially rejected by the court: the finding was that adverse possession was established only on a small portion of the lot which was encroached upon by 2 structures. The court gave an order nisi for no order as to costs of the action.

4.  The plaintiffs now seek to vary the costs order for the 2^nd defendant to pay 70% or 50% (or such costs as the courts thinks fit) of the plaintiffs’ costs of the action.

Considerations

5.  The legal principles regarding costs order are trite and listed in Order 62 rules 3(2), 5(1) and 5(2) of the Rules of the district Court. There is no need to reproduce them here.

6.  One important consideration raised by both parties concern the conduct of the parties in the action.

7.  Whilst the plaintiffs could be criticised for attempting to bolster their claim by alleging the existence of an oral tenancy agreement, I agree with Mr. Cheung, counsel for the plaintiffs, that they have, in the end, successfully claimed vacant possession for almost the whole area of the lot.

8.  On the other hand, the 2^nd defendant has vastly exaggerated his counter-claim of adverse possession to cover the whole lot with evidence that were found by the court to be “breathtakingly incredible”, “surreal” and “beyond common sense”. The actual award was the adverse possession of two rather small and insubstantial areas that had been encroached by 2 structures (that the 2^nd defendant claimed that he and his father had lived in) for a very long time. This could have been addressed solely by expert evidence (with aerial photographs) without wasting much of the court’s time.

9.  Having considered all the circumstances of this action, I would vary the costs order nisi of the Judgment and made absolute to the extent that the 2^nd defendant do pay 60% of the costs of the 1^st to 6^th plaintiff of the action, with certificate for counsel, to be taxed if not agreed.

10.  The costs of and occasioned by this application be paid by the 2^nd defendant to the 1^st to 6^th plaintiff.