LAU SIU KWONG DAVID AND OTHERS v. THE PERSONAL REPRESENTATIVES OF LEE ON YUEN, DECEASED

HCA 10001/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10001 OF 2000

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J U D G M E N T

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1. This is an application for default judgment against the Defendant for various declarations in relation to the property known as "All that one equal undivided 21st part or share of and in all that piece or parcel of ground situate lying in Kowloon and registered in the Land Registry as Kowloon Inland Lot No. 7206 together with the exclusive right to the use occupation and enjoyment of the whole of the 2nd floor of Nos. 24 and 24 A Bowring Street, Kowloon, Hong Kong. (hereinafter called the property).

2. This is an action by specially endorsed writ.

3. The Defendant died sometime on 18 July 1966, and there was no grant of any representation in respect of his estate. By an order of Master C B Chan of 3 January 2001, the official solicitor was appointed to accept service of the writ herein. However after accepting service, the Official solicitor ceased to take any part in this proceeding. In fact the order of Master C B Chan expressly provided that this action herein be proceeded in the absence of any person representing the estate of the deceased defendant. The consequence of this is obvious: there was no defence filed and as a result the Plaintiff applied under Order 19 rule 7 for judgment in default of Defence.

4. This matter came before Master Ho on 5 March 2001. Master Ho considered that this matter should be heard before a judge in open court. As a result he adjourned the matter to a Judge in chambers. In view of the nature of the relief sought, I agree with the observation of the Master that this matter should be heard in open court. This is especially so when there is no real opponent to the application. Accordingly I adjourned this matter to be heard in open court.

Procedural consideration

5. The Official Solicitor took the terms of Order of Master C B Chan literally to mean that he was simply appointed to accept service of the writ. Accordingly the Official Solicitors did not even enter an acknowledgment of service. Whether his view is correct or not, the result is that there was no notice of intention to defend filed. The consequence of this was that Order 13 is applicable and the Plaintiff may proceed under Order 13 to obtain judgment. However although this is a claim relating to land, this is not a claim for possession of land within the meaning of Order 13 rule 4. Thus 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.

6. The next step that a defendant ought to have taken in this litigation was to file a defence. This was not done. Hence the Plaintiff is entitled to proceed under Order 19 to obtain default judgment. Again this is not a claim which falls within Order 19 rule rules 2 to 5. Hence the Defendant is justified to proceed to apply for judgment under Order 19 rule 7.

7. Under this rule the application may be made by summons before a Master or by Motion before a Judge. As I have indicated above, in my view, this is a matter which ought to have be dealt with in open court, and accordingly the application should have been made by motion.

Merits of the application

8. The deceased Lee On Yuen was the "registered owner" of the property. The land search showed that there is registered in the Land Registry a deed of assignment dated 18 August 1961 assigning the property to him and there is no other later instrument registered in the Land Registry showing any disposition of his interest in the Property by him. The deceased died on 18 July 1966 at the age of 82 and this was proved by the death certificate issued by the Birth and Deaths Registry.

9. In 1961 the deceased gave permission to one Lau Fung Jim to live in the property. Accordingly Lau Fung Jim became the licensee of the deceased. There being no other evidence to show that consideration had been given for the grant of the licence, the licence was thus revocable at will.

10. Since Lee On Yuen died on 18 July 1966, in law the licence granted by Mr. Lee in his life time to Lau Fung Jim would be terminated automatically on his death. (see Ho Hang Wan v Ma Ting Cheung as Personal Representative of Ma Sz-tsang [1990] 1 HKLR 649).

11. I am satisfied that since the death of the deceased, Lau occupied the whole of the property as if it was his own. He paid rates and property tax in respect of the property. Indeed the relevant rates and property tax demand notes were issued to him in his name.

12. The Plaintiffs were children of the said Lau Fung Jim. They had been residing in the property since about 1966. I am satisfied that they were in turn the licencees of Lau Fung Jim, their father.

13. It appears to me to be clear that since the death of Lee On Yuen, the property had been occupied by Lau Fung Jim and also his children as his licencees and also other persons claiming title through him, like his tenants.

14. In the circumstances, since the termination of the licence to Lau Fung Jim on the date of the death of Lee On Yuen, the property was in adverse possession by Lau Fung Jim and also persons claiming title through him. There was no action taken by the estate of Lee On Yuen for the recovery of the possession of the property. Hence by now any action taken by or on behalf of the estate of Lee On Yuen to recover the property would be barred by section 7 of the Limitation Ordinance. Furthermore under section 17 of the Limitation Ordinance the title of Lee On Yuen or his estate to the property would have been extinguished after the expiration of 20 years from the date when the property was in adverse possession. This would mean that the title was extinguished by 19 July 1986.

15. Accordingly I am satisfied that the Plaintiffs are entitled to the declarations in paragraphs (a) and (b) of the Prayer to the Statement of Claim.

16. I am however not in favour of granting a declaration in terms of paragraph (c) where the Plaintiffs asked me to grant a declaration that the Plaintiffs had acquired a good possessor title to the property. The reason is that on the face of the Pleading, the Plaintiffs are licensees of Lau Fung Jim and while I am satisfied that the property had been in adverse possession as against the deceased Lee On Yuen since the date of his death, there is no evidence of any dispossession of Lau Fung Jim by the Plaintiffs. Furthermore I am of the view that since the Plaintiffs were licensees of Lau Fung Jim, they derived their title to the property from Lau Fung Jim, and unless they had since dispossessed Lau Fung Jim, their father, they could not claim a better possessory title to the property than Lau Fung Jim.

17. I am likewise not prepared to grant an order under paragraph (d), which asked for an order that the registration of the deceased as the owner of the property be vacated. I could not see how that could be done. The land registry is a document registry. All that was registered in favour of Lee On Yuen was the assignment in his favour dated 18 August 1961. There was no registration of ownership as such.

18. Thus to conclude, I will grant the Plaintiff declarations in terms of paragraphs (a) and (b) of the prayer to the Statement of Claim, that is a declaration that the Defendant has lost the right to bring any action to recover the property by virtue of Section 7(2) of the Limitation Ordinance, and a declaration that the deceased's title to and interest in the property has prior to this action been extinguished by virtue of Section 7(2) & 17 of the Limitation Ordinance. I make no order as to costs.