NG TUNG v. GRAND WAYFAIR INVESTMENT CO LTD

HCA 1682/2017

[2019] HKCFI 1529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1682 OF 2017

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HCA 2531/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

 ACTION NO 2531 OF 2017

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D E C I S I O N

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Introduction

1.  On 22 February 2019, this Court handed down a judgment dismissing Ds’ respective summonses to strike out P’s present two actions (“Striking Out Judgment”).  For ease of reference, in this decision, I shall continue to adopt the abbreviations in the Striking Out Judgment unless otherwise indicated.

2.  On 7 March 2019, Ds took out a summons respectively in the two actions for leave to appeal.  There are 4 proposed grounds of appeal (“Grounds”), summarised as follows:

(1) the learned Judge erred in overlooking the effect of the Striking Out Judgment against the spirit of Civil Justice Reform and it defeated the purpose of consolidation mechanism under the Rules of High Court (RHC);

(2) the learned Judge erred in overlooking Ds would suffer considerable prejudice as a result of the abuse of process brought about by P’s two present actions;

(3) the learned Judge erred in law and in fact in ruling that res judicata can be said to apply on the Ds for not bringing all 5 lots (3 GWIC Lots and 2 FIL Lots) in the 2007 Action as per paragraph 28 of the Striking Out Judgment; and

(4) the learned Judge erred in the application of principles of res judicata in the wider sense and the rule in Henderson v Henderson (1843) 3 Hare 100 as per paragraph 34 of the Striking Out Judgment.

Ground 1

3.  It was argued on behalf of Ds that P’s case is essentially adverse possession over adjoining pieces of land in close proximity to each other by the same manner of possession (factual and intentional) and therefore when a portion of these adjoining pieces of land became the subject matter in the 2007 Action, P could and should have brought his case on the entire piece of land.

4.  This Court had already considered this argument in the Striking Out Judgment and concluded that there was no reason why P could or should have brought his present claims in the 2007 Action.  The Court’s observations had been summarised in paragraph 10 of Ms Gwilt’s Written Submissions.  

5.  As pointed out by Ms Gwilt, there are 5 individual lots with distinctive lot numbers which happened to be adjoined together and the 5 lots are registered under 2 different owners and/or different corporate entities, namely GWIC and FIL respectively.  The 2007 Action was brought by GWIC for vacant possession of Lot 78 only and there was no counterclaim made by P.  The only lot which was adjudicated in the 2007 Action was Lot 78. 

Ground 2

6.  It was argued on half of Ds that the trial judge in the 2007 Action may have come to a different conclusion on the issue of adverse possession of Lot 78 had he explored the manner of possession of the Other 4 Lots as the 5 lots are “one piece of land” as the acts of possession of one part should reasonably infer on other parts too.  It was further submitted by Mr Chan now that P had obtained possessory title of Lot 78 in the 2007 Action, he would be entitled in the present two actions to rely on that possession done on part of the land (ie Lot 78) as evidence that possession done on the other 4 Lots.

7.  As Ds recognised, in the present actions, the burden to prove adverse possession falls on P.  Whether the trial judge eventually in the present two actions will draw some reasonable inference from P’s possessory title to Lot 78 is a matter for the trial, and Ds are entitled to cross examine P on the background of his family’s possession of such a large piece of land (consisting of Lot 78 + Other 4 Lots), and if P’s evidence eventually is found to be not consistent with other evidence such as aerial photos, the trial judge may reject P’s claims of the Other 4 Lots.

Ground 3 

8.  What this Court said in paragraph 28 was merely pointing out what was submitted by Ms Gwilt at the time.  It was not a ruling of this Court.

Ground 4    

9.  This Court did not rule that the Henderson principle is confined to same parties only.  All this Court said in paragraph 35 was that there was no evidence that during the trial of the 2007 Action, P was aware that the 2 FIL Lots belonged to a company which was connected or related to GWIC.  As for the alleged change of case by P in the present two actions, what was said in paragraph 34 was in relation to Mr Chan’s then submissions.

Conclusion

10.  Having considered Ds’ Grounds, I am of the view that Ds have not been able to show that there is a reasonable prospect of success in their intended appeal, nor is there some other reason in the interests of justice why the appeal should be heard.  I am not prepared to grant leave. 

11.  Ds’ summonses dated 7 March 2019 are dismissed. Costs are to be paid by Ds to P, to be summarily assessed and paid within 14 days after assessment.  P to submit a statement of costs within 7 days, and Ds to submit their list of objections 7 days thereafter.