BRING ALL LTD v. CHOI WAH

HCA 2347/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2347 OF 2009

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J U D G M E N T

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1.  This is an application for judgment in default of defence. The reliefs sought are declarations. As has been submitted, it is not the normal practice of the court to make a declaration without a trial. However, this is a rule of practice and not of law. Where a claimant cannot obtain the fullest justice without a declaration the court should in a proper case grant declarations even in default of defence (Patten v. Burke Publishing Co Ltd [1991] 2 All ER 821).

2.  This action relates to the property known as Flat B on the 9^th floor of Primrose Mansion, Harbour View Gardens, No. 2, Tai Koo Wan Road, Taikoo Shing, Hong Kong (“the property”). 

3.  The defendant and Choi Ho Bun (“HB Choi”), the son of the defendant, became the joint tenants of the property as purchasers by an assignment dated 25 May 1983.

4.  By an assignment dated 28 August 1987 the property was assigned by the defendant and HB Choi as vendor to Fresh Energy Limited as purchaser.  The assignment to Fresh Energy Limited was executed by HB Choi on behalf of himself and the defendant as the defendant’s lawful attorney under a power of attorney dated 21 August 1986 made by the defendant in favour of HB Choi.

5.  By an assignment dated 3 September 1998 the property was assigned by Fresh Energy Limited as vendor to one Lum Khow as purchaser. 

6.  The plaintiff purchased the property in 1990 and by an assignment dated 24 February 1990 the property was assigned by Lum Khow as vendor to the plaintiff as purchaser.  Since then the plaintiff has been in exclusive possession of the property as the sole beneficial owner of the property and on the evidence the property has been rented out by the plaintiff at all material times.

7.  By an agreement for sale and purchase dated 9 April 1994 the plaintiff as vendor agreed to sell the property to Very Cheer Development Limited and Au Ka Yeung as purchasers.

8.  Whilst investigations were being conducted on the title of the property by the purchasers’ solicitors, requisitions were raised on the authority of HB Choi to execute the assignment in 1987 on behalf of the defendant under the power of attorney.  This led to the purchasers issuing a vendor and purchaser summons in 1994 under HCMP 1343 of 1994. 

9.  The matter was decided by Deputy Judge Kwok on 30 June 1994 when he construed the power of attorney and held that HB Choi had no power under the power of attorney to execute the assignment to Fresh Energy Limited.  By his order of 30 June 1994 it was declared that the requisitions of the purchasers had not been sufficiently answered and that good title had not been shown.

10.  In the light of the decision of Deputy Judge Kwok in 1994 the plaintiff came to realize that it had not acquired all the beneficial interests in the property in 1990 when it purchased the property and that the plaintiff and the defendant were beneficial co-owners of the property.  However, since the judgment in 1994 the plaintiff has continued to be in exclusive possession of the property as if it were the sole owner and it has also exercised all the rights of a sole owner of the property. As I have said, at all times the property has been leased out by the plaintiff and the plaintiff has been the only one in receipt of the rents paid by the various tenants.

11.  On the evidence it is clear that the defendant has never occupied the property and the defendant has never been given access to the property by the plaintiff.  The plaintiff has also been the only one who has been paying the government rates and management fees in respect of the property since the time it purchased the property. 

12.  On the evidence I am satisfied that the plaintiff has ousted the defendant from the property ever since it came to realize that the plaintiff and the defendant were beneficial co-owners of the property. 

13.  I am satisfied that the plaintiff is entitled to the declarations sought.  I give judgment to the plaintiff against the defendant for

(1) a declaration that the plaintiff has been in an adverse possession of the property for a period in excess of 12 years next before the commencement of this action;

(2) a declaration that the defendant’s title to the property was prior to the commencement of this action extinguished; and

(3) a declaration that the plaintiff has acquired an indefeasible possessory title to the property in respect of the extinguished title of the defendant.

14.  I make no order as to the costs of the action.