BIRKENHEAD PROPERTIES AND INVESTMENTS LTD v. LEUNG CHI CHEONG

HCA 6145/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6145 OF 1992

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BETWEEN

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J U D G M E N T

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1.  The plaintiff instituted this action on 10 September 1992. It claims possession of part of Lot 769 in Demarcation District 99, Mai Po, San Tin, Yuen Long (“the Lot”). The area claimed is at the south-eastern part of the Lot.

THE COUNTERCLAIM

2.  The defendant, Leung Fai filed a defence and counterclaim on 9 November 1992.  He counterclaimed the area by adverse possession since the early 1960s.  There were then some interlocutory applications.  Leung Fai made his witness statement on 11 November 1999.  He also filed his expert report on 28 December 1999.  However, he passed away a year later on 28 December 2000.  His 3rd son, Leung Chi Cheong (“CC Leung”) was appointed by the Registrar as the personal representative of his estate to defend this action.  CC Leung made three witness statements on 21 October 2003, 5 September 2009 and 6 November 2010.  His witness Mr Kwok Kui Man made two witness statements on 6 September 2009 and 6 November 2010.  Nevertheless, the counterclaim is contested on credibility and the defence witnesses gave oral evidence instead of relying on their witness statements.

THE EXPERT REPORTS

3.  Though the defendant filed the expert report on 28 December 1999, the plaintiff only filed its expert report on 9 February 2009.  Both sides filed a further round of supplemental expert reports.  These reports deal with the issue of occupation of the area in question since the early 1960s.  Since these reports do not reveal any dispute between the experts, I directed on 28 September 2010 that the expert reports be admitted in evidence without the expert being called to attend the trial. 

4.  However, it was revealed in the cross-examination of CC Leung that he disagreed with the plaintiff’s expert on the time when a small fishpond had come into existence.  Since the defendant’s expert had not disagreed with the plaintiff’s expert on this matter and the dispute only became apparent in the cross-examination of CC Leung, I therefore directed the experts on both sides to look into this matter again.  The experts then prepared another round of reports by letters.  The latest reports show that the experts are in disagreement on this matter.  They are therefore called to give evidence thereon.

BACKGROUND

5.  The area in dispute was used as a carpark in September 1992 when the action was instituted.  The boundary of the area occupied by Leung Fai in 1999 was surveyed by the defendant’s expert in March 1999.  It is shown and coloured yellow in a plan produced in the first report of the defendant’s expert (“D’s plan”).  Since CC Leung does not dispute that the plaintiff is the registered owner of the Lot and is only counterclaiming the area on the basis of adverse possession, it is for him to prove his case.

6.  The writ was issued on 10 September 1992.  The defendant therefore has to prove adverse occupation at the latest since 10 September 1972.  CC Leung’s case is that his father had started adverse possession of the occupied area since the early 1960s. 

7.  In 1972, the northern limit of alleged occupation was bounded by an embankment situated at the north of a large fishpond which was used by his father in fish breeding business.  An aerial photo taken on 29 November 1972 and produced in the plaintiff’s expert report shows the fishpond and the embankment.  However, the northern boundary of the yellow area in D’s plan is beyond the limit of the embankment.  I therefore asked the defendant’s expert to redraw the northern limit of the yellow area in D’s plan so that it would be in line with the embankment in the November 1992 aerial photo.  The defendant’s expert Mr Leung Shou Chun produced three alternative northern limits which are in line with the northern edge, the mid-line and the southern edge respectively of the embankment.

LEUNG FAI’S WITNESS STATEMENT AND EXHIBITS THERETO

8.  Leung Fai’s witness statement was filed on 28 December 1999.  He said in the statement that he and his first wife, Madam Tai Siu Hing came to Hong Kong in about 1951.  He first settled in Sheung Shui.  His fellow villager, one Chow Yui Wing then invited him to move to Mai Po as there was a brickyard which was recruiting workers.  Chow was then living in a small house surrounded by some abandoned salty fields at the south-east boundary of the Lot.  Leung Fai and his wife then erected a house in an area at the surrounding of Chow’s house.  They lived in this house. 

9.  Madam Tai also obtained a Modification of Tenancy (MOT) No. 5033 from the Yuen Long District Office and dated 28 May 1963 (p. 151).  The MOT permitted the then registered owner Ma Man Chung to erect on the Lot, an accommodation of 14' x 16' x 13', a kitchen of 7' x 7' x 11' and a porch of 7' x 16' x 11'.  Though the permission in the MOT that modified the tenancy or government lease was granted to the registered owner or government lessee Ma Man Chung, Madam Tai was also named as the owner and she signed as the permittee in the MOT.  This MOT was formally cancelled on 1 January 1972 after Madam Tai had passed away on 16 April 1970.

10.  CC Leung in his oral evidence identified three structures as shown in the aerial photos taken from 1972 to the present day.  He thought that they were the three structures permitted in the MOT.  The three structures were marked S1, S2 and S3 in the photos.  He said the structure S1 shown in the photos taken since 1972 was already a rebuilding of the original accommodation and had a larger dimension.  The rebuilding was undertaken one year after the death of his mother in April 1970.  At a site visit on 12 November 2010, he also led the party to inspect the three structures and went inside S1.

11.  Leung Fai said in his statement that after moving to the Lot, his wife Madam Tai worked in the brickyard to support the family.  He also caught sea features from the nearby ponds for sale. 

12.  In about 1964, he employed some workers to excavate a fishpond for fish farming.  Owing to financial constraint, the excavation work took more than ten months to complete.  He then started breeding fish in the pond. 

13.  Two aerial photos taken on 22 February 1963 (p. 237) and 22 October 1964 (238) indeed show that there was a pond marked “Pond A” at the north-western part of the disputed area.  In the next aerial photo taken sometime in 1972 (p. 436), Pond A was enlarged to the east and south-east to become Pond B which was more than double the size of Pond A. 

14.  Leung Fai also produced two letters from a Hong Kong NT Fish Culture Association to prove his case.  The first letter dated 22 September 1992 (p. 153) said that he and Madam Tai had from 1 January 1963 carried on fish farming at the Lot.  The second letter dated 2 March 1993 (p. 155) referred to a copy of Leung Fai’s application to the association for membership and dated 23 January 1966 (p. 158). 

15.  He said his fellow villager Chow moved away in the 1960s and he extended his occupation to the structures and area used to be occupied by Chow.  He used that area as a farm for rearing poultry and livestock.

16.  He also applied to the Kadoorie Farm and Botanic Garden Corporation (“Kadoorie Farm”) for assistance in his farming occupation.  He produced a letter from the corporation dated 5 March 1997 (p. 168) which confirmed that the corporation had between 1968 and 1971 assisted him by giving him several hundreds of New Hampshire Chickens, Pekin ducklings, goslings and other cocks and hens.  The letter also referred to him as an inhabitant of Mai Po, San Tin.

17.  After Madam Tai had passed away on 16 April 1970, he stopped the livestock and poultry rearing and just relied on fish farming for his living.

18.  From the 1980s, his neighbours started to reclaim the surrounding ponds.  Flooding then occurred to his pond when it rained which resulted in his fishes swimming away.  He could not rely on fish farming for a living.  He changed to cooking sweet soups for sale in Yuen Long.  He did this for several years.  In the meantime, he was still maintaining the pond and driving trespassers away.

19.  In about 1990, his friend one Mr Man, whom he had known since about 1968, agreed to fill up the pond for him for use as a carpark.  After the pond was turned into a carpark in early 1991, Man licensed it out on his behalf.  Man paid him $1,000 to $2,000 of the license fee per month and took the rest to offset the reclamation costs.  After recouping these costs, Man returned the management of the carpark to him sometime in 1992.  He then divided the carpark into two parts and licensed each of them out for $4,000 per month.

20.  In September 1992, the plaintiff started this action against him for recovery of the part of the Lot that he occupied.  As I have mentioned above, he passed away on 28 December 2000.  His 3rd son CC Leung then took over the conduct of the defence and counterclaim.

CC LEUNG’S EVIDENCE

21.  CC Leung gave oral evidence that he was born in 1961.  He was the 3rd son of six siblings.  Shortly after his birth, his family moved to live in the disputed area.  In November 1992, he was aged 11.  He identified the three structures S1, S2 and S3 in the aerial photos with S1 in the centre, S2 to the east and S3 to the west.  They situated at the north-east part of the disputed area.  His family lived in S1 where there were two bedrooms, one living room and two cocklofts.  S2 was used as a kitchen and S3 as a chicken shed.  The structures are still there and were seen in a site inspection in the afternoon of 12 November 2010.  They are also shown in the government survey sheets dated from 1979 to April 1999 as produced in the first report of the defendant’s expert.  They are also marked in D’s plan.

22.  CC Leung also said that S1 is the result of rebuilding of the accommodation referred to in MOT 5033.  Its dimensions are larger than those stated in the MOT.  He also identified some other structures shown on D’s plan.

23.  He referred to Pond B situated at the north-east part of the occupied area and said that his father had bred various kinds of fresh water fishes like carp (鯉魚), big head carp (大頭魚), grey mullet (烏頭) mud carp (鯇魚) and tilapia (福壽魚) there for sale.  He and his siblings had assisted in cutting grasses to feed the fishes.  The pond was drained once a year in winter for catching the fishes for sale.  Fry were put in again in spring.  They also assisted in cleaning the poultry raising area. 

24.  The occupied area is to the north of Castle Peak Road.  There is a piece of government land separating this area from the road. The eastern side of the area is bounded by a track that branches off from Castle Peak Road all the way to the north.  This track leads to Lin Barn Wai and Shek Chung and CC Leung called it Hop Wo Fishpond Road.  A short distance to the north-west from the corner of Castle Peak Road and the track was a well.  CC Leung said his family and the nearby residents all used the water from this well for their daily living.

25.  To the south of Pond B and the west of the track were several houses occupied by a family surnamed Poon.  Another family surnamed Li occupied the structures to their west.  These families were already there when CC Leung was three or four years old. 

26.  There were some structures behind and to the south of S1 and S2.  Two of the structures also formed an “L” shape.  There was a footpath leading from Castle Peak Road to these structures.  CC Leung said that the path was the access road from his home to Castle Peak Road.

27.  He drew a number of fences on a copy of D’s plan and produced it as exhibit D1b.  The fence to the west was numbered fence 4.  He said it was built by his western neighbour Ng Yuen Chong to keep Ng’s chickens from straying over to his father’s area.  There was a rectangular piece of land situated between fence 4 and his access path to Castle Peak Road. 

28.  Fence No. 3 was on the eastern side of and parallel to the footpath.  It started from the end of the L shape structure and ran towards Castle Peak Road.  The aerial photo of 29 November 1992 (p. 435) shows that fence 3 did not reach out to Castle Peak Road, but made a turn almost at 90^o to the east.  This east-west part of the fence was numbered fence 2.  Fence 2 at the eastern end also made a turn of slightly over 90^o to the north.  This north-south part of the fence was numbered fence 1.  Fences 3, 2 and 1 together enclosed an area of roughly a rectangular shape.  It was situated to the east of and right next to the path.  CC Leung said his father used to raise chickens, ducks and geese in this area.  It is the poultry raising area referred to above.

29.  In 1973 or 4, he spent a summer vacation to assist his father to dig up the earth in this chicken raising area to form a pond of about three foot deep.  His father used this pond to breed air-breathing catfish (塘蝨) and snakehead (生魚).  Since snakeheads are predatory, they could not be bred in Pond B together with other fishes.  He called this Pond D as drawn in exhibit D1(b).

30.  He also said that in the 1980s, the neighbours had filled up their ponds.  Muddy water overflowed to Pond B thereby making it shallow.  His father then only bred some fishes for own consumption as the shallow pond could only keep few fishes that were not enough for business.  For a while, his father cooked sweet soups for sale in Yuen Long to make a living.

31.  The Poons and the Lis moved out in the 1980s. His father told him that in 1990 when his father wanted to reclaim Pond B for a carpark, his father had purchased the structures from the Poons and Lis for the reclamation.  He had not mentioned about this purchase of structures hitherto. He also gave no particulars of the purchase as he said he was not told of the same by his father.

32.  CC Leung lived in the Lot until about 1990 to 1991 when he moved out to certain rented premises in San Yeung Uk Tsuen in Yuen Long.  He did so to avoid the conflict with his stepmother.  He was aware of the filling up of Pond B which was financed by his father’s friend Mr Man of San Tin.

33.  His mother Madam Tai used to work as a brick-maker in a neighbouring brick factory owned by his neighbour Kwok Kui Man. 

Electricity bill and meter number

34.  He also produced some electricity bills issued by China Light and Power Company Limited (“CLP”) to Leung Fai which stated the address of supply as 106 Mai Po Tsuen, San Tin, NT.  The plaintiff queried whether this address was in fact of a house in Mai Po Tsuen, a village which is about 700 metres away along Castle Peak Road.

35.  CC Leung explained that there was no official address for his home.  This supply address on the electricity bill was just an address created by CLP for its own use.  He also produced some electricity bills issued by CLP to his neighbours Ng Yuen Chong and Kwok Kui Man.  The supply addresses stated thereon are 105 and 104 Mai Po Tsuen, San Tin, NT for Ng and Kwok respectively.  Kwok in his oral evidence also said that the supply address was designated by CLP. 

36.  The registered owner of 104 Mai Po Tsuen (Mai Po Lot No. 51 in DD 104) is Fung Shing Ip (since 24 December 1947).  The registered owner of 105 Mai Po Tsuen (Mai Po Lot No. 52 in DD 104) is Fung Shing Ping (since 1 June 1990).  The registered owners of 106 Mai Po Tsuen (Mai Po Lot No. 53 in DD 104) are Man Kwok Tung and Kwok Hing Man as tenants in common (since 3 May 1991).

37.  CC Leung said he did not know the owners of house No. 106 Mai Po Tsuen and his father had never mentioned them to him.  Mr Kwok Kui Man in his oral evidence also confirmed that he and, to his knowledge, his neighbours Ng Yuen Chong and Leung Fai had never lived or owned any building in Mai Po Tsuen. 

38.  Leung Fai before his death had produced on 23 July 1997 a letter from CLP dated 18 March 1997 (p. 576) which confirmed that electricity had been supplied to Leung Fai at 106 Mai Po Tsuen San Tin NT since 3 September 1969.  Another letter from CLP dated 25 October 2010 (p. 714M) confirmed that Leung Fai was the holder of the electricity supply account no. 76291035062 from 3 September 1969 to 19 October 2009.  CC Leung subsequently became the account holder as evidenced by the last electricity bill he produced and dated 20 April 2010.

39.  The bundle of electricity bills CC Leung produced was dated from 17 July 1989 to 19 December 2007 (pp. 622 to 698).  He further produced another bill dated 20 April 2010 (p. 714I).  They all state the supply address at 106 Mai Po Tsuen San Tin NT.  They also state the electricity meter no. as 1424004.  CC Leung also produced a photo of the electricity metre installed on S1 which is also numbered 1424004 (p. 714N). The site visit revealed that the meter on S1 did not appear to be newly installed.  The electricity meter installed on house no. 106 Mai Po Tsuen as shown in a photo produced by CC Leung had a number different from that shown in Leung Fai’s electricity bills (p. 714S).

The address of Leung Fai’s family from time to time

40.  Since CC Leung said there was no official address for his home, he also explained how letters were sent to his family in the old days.  He said before he went to primary school, there was a public letterbox at the junction of Castle Peak Road and Hop Wo Fishpond Road.  His family and the people living in the vicinity as well as those in Lin Barn Wai used this letterbox to receive their letters.  The address of this letterbox was “香港九龍新界元朗合和魚塘路信箱” or “Letterbox of Hop Wo Fishpond Road, Yuen Ling, NT, Hong Kong”. However, his family frequently lost their letters there. 

41.  After he had enrolled into Koon Ying School in Mai Po Tsuen, his family then used the public letterbox next to his school to receive letters.  He would collect the letters when he went to school.  The address of this letterbox was “香港九龍新界米埔村信箱”or “Letterbox of Mai Po Tsuen, NT, Kowloon, Hong Kong”.  This arrangement lasted until he finished his primary education.  

42.  Then Kwok, Leung Fai and their neighbours together created a name for their area.  They called it “永康園”or “Wing Hong Yuen”.  They also assigned numbers for their houses.  Kwok’s house was designated No. 1 Wing Hong Yuen.  The house of Kwok’s neighbour Mr Ko was No. 2.  The house of Ng Yuen Chong was No. 3 and Leung Fai’s No. 4.  This was confirmed by Kwok in his oral evidence.  The residents of Wing Hong Wai also asked the postman to send them the letters that were addressed to Wing Hong Yuen.  This arrangement lasted until after CC Leung’s removal to San Yeung Uk Tsuen in 1990 to 1991. 

43.  CC Leung also produced a copy letter dated 17 May 1985 from the Police Cadet School which was addressed to his brother Leung Chi Kwan of No. 4 Wing Hong Yuen, Mai Po Tsuen, Yeung Long, NT (pp. 699-701). He also produced a copy Hire-Purchase Agreement dated 8 February 1983 (p. 714V).  It was an agreement by which Kwok’s son, Kwok Siu Yee purchased some hi-fi equipment on hire-purchase terms.  CC Leung was named the guarantor for Kwok Siu Yee’s liabilities in the purchase.  The copy agreement stated Kwok Siu Yee’s address at No. 104, Wing Hong Yuen, Mai Po, San Tin, NT and CC Leung’s address at No. 106, Wing Hong Yuen, Mai Po, San Tin, NT.  CC Leung said the addresses were created by the vendor by reference to his electricity bill which he was asked by the vendor to provide for reference.  The electricity bill gave the house No. 106, Mai Po Tsuen, but their area was called Wing Hong Yuen. Hence, the vendor spelt his address as No. 106, Wing Hong Yuen, Mai Po, San Tin, NT.  The same explained why the address of Kwok Siu Yee was spelt as No. 104, Wing Hong Yuen, Mai Po, San Tin, NT.

Documentary evidence of the address of Leung Fai’s family

44.  Since the plaintiff does not even accept that Leung Fai and his family had ever resided in the area in dispute and hinted that they might have been living in house No. 106, Mai Po Tsuen, I would therefore also refer to the following evidence on Leung Fai’s address from time to time.  The first document is a conveyance on sale dated 8 June 1953 by which the plaintiff’s predecessor, Ma Man Chung acquired various lots including the Lot (pp. 458-459).  The schedule of properties to the conveyance described the Lot as Lot 769 in DD No. 99, Lien Bar Wai.  I think there is an error in spelling in that “Bar” should be spelt “Barn”.

45.  The second document is the birth certificate of Leung Fai’s eldest daughter Leung Hau Wan (p. 586).  The birth was registered on 14 February 1958.  Leung Fai was described as a farmer of 86 Choi Yuen Tsuen, Sheung Shui. 

46.  The third document is the birth certificate of his second child, Leung Chi Ming (p. 580).  His birth was registered on 8 December 1959.  Leung Fai was again described as a farmer.  The address as reported by Madam Tai was Shek Chung Wai, Mai Po, San Tin. 

47.  The fourth document is the birth certificate of CC Leung (p. 581).  His birth was reported on 11 December 1961.  Leung Fai was described as a metal dealer.  The address as reported by Madam Tai was Hut Shek Chung Wai.

48.  The fifth document is the birth certificate of a daughter Leung Hau Yee (p. 582).  The birth was reported on 28 July 1965.  Leung Fai was described as a workman.  The address as reported by Madam Tai was Mai Po, San Tin.

49.  The sixth document is Leung Fai’s membership application form given to the Hong Kong NT Fish Culture Association (p. 158). It was dated 29 January 1966.  Leung Fai’s address was stated to be “米埔練板” or “Lin Barn, Mai Po”.  The size of his fishpond was originally said to be “伍畝” or “five mous”.  There were words added alongside saying “約十二畝” or “approximately twelve mous” and “另生魚塘倆個” or “also two ponds for snakeheads”.  But there was no indication as to when the words were added.

50.  The seventh document is the birth certificate of Leung Chi Kwan (p. 583).  The birth was reported on 3 April 1967.  Leung Fai was described as a farmer and the address reported by Madam Tai was “Hut Mai Po San Tin”.

51.  The eighth document is the birth certificate of Leung Chi Kuen (p. 587).  The birth was reported on 8 October 1968.  Leung Fai was described as a poulterer and he reported his address at “Unnumbered Hut Mai Po NT”.

52.  The ninth document is the death certificate of Madam Tai (p. 172).  Her death was registered on 17 April 1970 and Leung Fai’s address was at Lin Pang Wai, Mai Po, NT.

53.  The tenth document is the copy hire-purchase document dated 8 February 1983 (p. 714V) as referred to above.  It stated the address of CC Leung at 106 Wing Hong Yuen, Mai Po, San Tin, NT.

54.  The eleventh document is the envelope enclosing the letter from the Police Cadet School to Leung Chi Kwan dated 17 May 1985 (pp. 699-701) as referred to above.  The address stated is No. 4, Wing Hong Yuen, Mai Po Tsuen, Yuen Long, NT.

55.  The twelfth document is the marriage certificate certifying the marriage of Leung Fai and his second wife, Madam Liu Che Wun. The marriage took place on 5 July 1986.  Leung Fai was described as fish breeder of No. 4, Wing Hong Yuen, Mai Po, Yuen Long, NT.

56.  The thirteenth document is the birth certificate of Leung Hau Ching, the daughter of Leung Fai and Liu Che Wun (p. 716).  The birth was registered on 11 August 1986.  Leung Fai was described as “fish breeder” of No. 4, Wing Hong Yuen, Mai Po.

57.  The fourteenth document is a Chinese letter from the plaintiff to Leung Fai and dated 11 July 1992 (p. 462).  The letter described the area in dispute as “米埔近練板村新田元朗，第99約地段769 (部份)” or “(Part of) Lot 769, DD 99, Mai Po in the vicinity of Lin Barn Tsuen, San Tin, Yuen Long.

58.  The fifteenth document is the writ in this action dated 10 September 1992.  It states Leung Fai’s mailing address at “Public Mailing Box of Hop Wo Road, Mai Po, San Tin, Castle Peak Road, Yuen Long, NT”.

59.  The sixteenth document is another marriage certificate of Leung Fai and Liu Che Wun and dated 2 September 1997 (p. 588).  CC Leung said in his witness statement that they had divorced and married again in 1997.  Leung Fai was described in the certificate as fishery cultural worker of No. 4, Wing Hong Yuen, Mai Po.

CHOW YIU WING’S HOUSE

60.  CC Leung was asked in cross-examination on the structure that he alleged was Chow Yui Wing’s house.  It was a large structure at the centre of the yellow area in D’s plan. 

61.  CC Leung on 29 October 2010 produced a bundle of receipts of fees payable to the government under MOT 6323 from 13 April 1973 to 18 January 1999 (pp. 704-713).  This MOT had been granted by the government to Chow and dated 29 June 1964.  It permitted Chow to maintain an accommodation of 17' x 12' x 9' in the Lot.  But CC Leung said he had forgotten who gave the receipts to him or who had paid the fees for the MOT throughout the years. 

62.  The plaintiff’s expert obtained a copy plan from the District Land Office which purportedly showed the location of the accommodation permitted in this MOT.  However, the plaintiff’s expert was of the view that this plan was of a very small scale and totally devoid of necessary features.  It was impossible to produce from it an accurate determination of the location of the permitted structure.  He then found an old land-working sheet from the District Survey Office that contained a purported location of the permitted structure.  He plotted the locations obtained from these two documents onto the aerial photo taken on 29 November 1972.  He concluded in a supplemental report that the actual position of the structure permitted in MOT 6323 could not be concluded with some sort of certainty (p. 451B).  The plaintiff also does not accept that the structure as permitted in this MOT is the one in the centre of the yellow area in D’s plan as claimed by CC Leung.

63.  The plaintiff also questioned CC Leung on why he made no mention of Chow prior to 2009.  He initially said all houses and structures within the occupied area were build by his father.  It was put to him that he, upon seeing the plaintiff’s expert report in 2009, knew that there were houses in the area before his father had settled there, he therefore changed his case by annotating Chow’s house in a copy of the 1972 aerial photo. 

64.  CC Leung was also challenged in cross-examination on why he only mentioned the alleged payment his father paid to the Poons and Lis in oral evidence.  He said before seeing the plaintiff’s expert report, he did not know that part of the structures of the Poons and Lis were within the occupied area as it was difficult to tell simply from reading the plans.  Leung Fai had also not mentioned in his witness statement or affirmation the Poons and Lis or his purchase of their structures.

Ponds C and D

65.  CC Leung was also questioned on the digging of Pond C (p. 249).  He said he had dug two fishponds.  The first one was dug in 1973 to 1974.  He called this Pond D.  It was the smaller of the two ponds.  It was situated next to and to the south of fence no. 2 and was close to Castle Peak Road.  It was like a triangle pointed to the road.  He dug it in a summer vacation.  About three or four years later, he dug Pond C which was of a square shape.  It was adjacent to and to the north of the triangular Pond D.  It was in the area surrounded by fences nos. 1, 2 and 3.  That area was said to have been used for rearing poultry by his family.  His family also dug a well on the western side of their access path to Castle Peak Road.  His father needed a lot of water for use in Ponds C and D.  Water was also needed for breading fry.  He also marked the locations of Ponds C and D and the well on exhibit D2(b), a photograph he produced on 8 December 2008.

KWOK KUI MAN’S EVIDENCE

66.  The defendant’s second witness, Kwok Kui Man, is 83 years old.  He is hard of hearing.  He came to Hong Kong from the mainland in 1949 and settled near Hop Wo Fishpond Road.  His neighbour to the east was Ng Yuen Chong and Leung Fai was Ng’s neighbour to the east towards Hop Wo Fishpond Road.

67.  He ran a brick-making factory at home.  Leung Fai’s wife worked for him.  Leung Fai owned Pond B and bred fishes there for sale.  He saw Leung Fai dragging the pond, building the embankment and fed the fishes.

EXPERT EVIDENCE ON WHEN PONDS D AND C APPEARED

68.  CC Leung said Pond D was dug in 1973 to 1974 and Pond C three or four years later.  However, the plaintiff’s expert report said Pond C only appeared for the first time in the photo taken on 19 October 1983 and the defendant’s expert agreed with this. The experts were therefore called to testify on this issue.  The experts also prepared further reports by letters on this issue and a few other matters that arose in the evidence of CC Leung. 

69.  Pond C was first mentioned in the plaintiff’s expert report.  The plaintiff’s report said the new Pond C was observed in the aerial photo taken on 19 October 1983 (p. 234).  The defendant’s supplemental expert report also said that a new pond was constructed.  It further said that the place was formerly an open space and no structure was affected by this construction (p. 420).

70.  The defendant’s expert, Mr Leung, however, changed his case in his last report dated 13 November 2010 (p. 451H).  He referred to Pond D as a triangular pond.  He said this triangular area first appeared as a pond in the aerial photo taken on 20 December 1973 (p. 240).  He could see this pond in subsequent photos up to 1983 when the plaintiff’s report denoted Pond C on the photo.

71.  Regarding Pond C, Mr Leung said that in the aerial photo taken in 1976 (p. 243), this area was a vegetated ground.  In the photo taken on 30 October 1978 (p. 245), this area had become dark and was of a smooth surface similar to the other pond areas which suggested that it was a water area.  In the photo taken on 17 May 1981 (p. 247), the water area was darker indicating that the water could have become deeper.  In the photos taken on 7 April 1982 (p. 248) and 19 October 1983 (where Pond C was marked for the first time) (p. 249), the water area was lighter in colour indicating that the water had become shallower.

72.  Mr Leung was cross-examined rigorously on why he had made such a drastic change in his case on the times when Ponds D and C had been constructed.

73.  Mr Leung agreed that when he made his supplemental expert report dated 7 September 2009, he thought Pond C was constructed in 1983.  He had also checked the aerial photos of the previous years before so concluding.  He agreed that before preparing the last report by letter, he had been told that it was C C Leung’s evidence that Pond C was there in the 1970s.  In preparing his last report, he had reviewed the aerial photos.  He was then convinced that the colour of the triangular space resembled the dark colour of the other ponds. 

74.  He said it was a matter of focus and attention that he had not come to this conclusion in his supplemental report.  At that time, notwithstanding the dark colour in the triangular area, it did not appeal to him to challenge the plaintiff’s report on this.  When he prepared his last report, he was asked if that dark colour could be water.  His focus and attention on it then caused him to say that it was a pond.  He also said that he checked the survey sheet which denoted a large pond (Pond B) and therefore Pond C (should be Ponds C and D drawn together as one) escaped him. (Ponds C and D appeared for the first time in the survey sheet dated February 1988 (p. 327) and were marked as one pond instead of two).

75.  He also said that even without being told about the evidence of CC Leung, if he was asked to read the aerial photo with focus at the triangular area, he could tell that it was water from 1973 onwards.  In comparison with a neighbouring tree, which was also of dark colour, the triangular area was rather uniformly dark.  Though he had not carried out a stereoscopic examination of this area, he was still quite confident of this conclusion.

76.  The defendant’s expert, Mr Chan referred to the triangular area for Pond D and answered that it was a dark patch and he could not tell if it was water or plant.  He could not even tell by stereoscopic examination as the area was too small and plane that took the photo was at too great a height.  However, he could tell that it was a pond in 1983.  For the area for Pond C in the 1978 aerial photo, he said it could be sand or other low-lying things.

77.  The experts however agreed that the areas of Ponds C and D had at sometime been divided by a fence in between.  Mr Chan in his last report referred to a tree in the middle of a fence that divided the two areas as shown in the aerial photos taken in 1977 and 1978.

ANALYSES AND DECISIONS

When did Ponds D and C appeared

78.  Mr Chan, leading counsel for the plaintiff also referred to the survey sheets.  Ponds C and D first appeared in the survey sheet dated February 1988 (p. 327).  They appeared as one pond. 

79.  I also consider the earlier survey sheets.  The first survey sheet produced after the aerial photo of 29 November 1972 (p. 239) bears a revision date of July 1973 (p. 323).  Structure S3 standing to the west of S1, which appeared in the aerial photos since 1972, is not shown in this survey sheet.  The two structures to the south of S1 and S2 which form an “L” shape are also not shown.  This survey sheet also does not depict the many fences and the access path which are clearly observable in the aerial photos. Since fences nos. 1, 2 and 3 are not drawn on this sheet, the area which later became Pond C is also not demarcated. 

80.  The next survey sheet has minor amendments made in August 1975 (p. 324), but it has the same omissions.  The next survey sheet is of revision date May 1978 (p. 325) and has the same omissions as the previous two.  The next one bearing revision date of July 1979 (p. 326) has more details. It shows the access footpath to Castle Peak Road, the well at the west of the path, fence no. 1 which extended nearly to Castle Peak Road and a water tank to the north of the area for Pond C.  CC Leung referred to the water tank as a pond for breeding fry.  However, this survey sheet, instead of depicting Pond C, has a spot level “2.1” at its location.  This means that the level of this area was 2.1 metres above the principal datum. 

81.  Mr Leung agreed that if the area was completely covered by water, no spot height would be marked there.  The marking of a spot height there means the survey officers who conducted the field survey did not find any pond there.

82.  There are a few more spot heights marked near the area for Pond C that are worth noting.  There is one to the south-south-east of the area and marked 2.8.  There is another one to the south-west marked 2.9.  The one on Castle Peak Road is 4.5.  The level of Hop Wo Fishpond Road is above 3. Thus the area for Pond C at that time was lower than its surrounding areas.  Despite the added details, structure S3 which had been there since 1972 (see exhibit P1a) has still not been marked on this sheet.

83.  The next survey sheet was dated 1979 (p. 449). Both experts agreed that this is a further revised version of the one dated July 1979.  It has some corrections.  A tree marked at the corner of Castle Peak Road and Hop Wo Fishpond Road in the July 1979 sheet has been removed. Structure S3 has been included.  The spot height “2.1” has also been removed. But there is no annotation of “pond” in its place.  The next sheet produced was dated February 1988 and has been referred to above which shows Ponds C and D appeared for the first time but as one pond.

84.  For the removal of the spot height “2.1” from the later 1979 revision sheet, Mr Leung for the defendant said the only explanation was that the person who did the revision did not regard the spot height as representative anymore and deleted it.  Mr Chan for the plaintiff, however, guessed that it could be that the height was wrongly stated and the officer doing the revision forgot to put in the correct height after verification.  But Mr Chan did not say why the error had to be in the height but not the nature of the feature.  If it was an error not fully corrected, I can’t see why the error could not have been the mis-denoting of a pond as a piece of low land.

85.  I think the best way to resolve this question is to consider the evidence of Mr Leung with care.  When Mr Leung was asked to consider the particular question of when Ponds C and D had come into existence.  He looked at the aerial photos again with focus and attention at that area where the two ponds are said to have been.  He then gave a new case of when the ponds had come into existence.  He not only explained why he had erred in his supplementary report, he also gave reasons by reference to the photos to support his revised view.  He was cross-examined rigorously. 

86.  In this regard, the evidence of Mr Chan for the plaintiff is not of much use.  He said he only saw a dark patch, but could not tell if it was water or plant.  He could not be more precise even with stereoscopic examination.  So he thought that it could either be a pond or some plants.

87.  However, Mr Leung has pointed out that if there should be trees, the colour may not be uniform because the tree surface is not flat.  The side facing the sun may have a lighter colour.  He also said that the triangular area was uniformly dark and was different from the tree as shown in the 1977 photo (exhibit P1f).

88.  Though surveyors usually pay higher regard to survey sheets, I do not think I should doubt Mr Leung’s evidence simply because his is not supported by the survey sheets produced.  From my discussion on these sheets above, they are not free of problems.

89.  Leading counsel for the plaintiff also referred to the witness statement and oral evidence of CC Leung and pointed out that he had said more than once that Ponds C and D were dug together in 1973 to 1974 and he changed his evidence when he was told that Pond C only appeared in 1983.

90.  I think this criticism has to be considered in context.  CC Leung had moved out of the place in about 1991.  He was cross-examined on things that happened some 30 years ago.  If he should be less than accurate, it is only understandable.

91.  Having considered the expert evidence of Mr Leung in conjunction with the aerial photos and in particular the original photos in exhibits P1a to P1k, I accept his evidence as true and correct.  I find that the triangular Pond D first appeared in the 1973 aerial photo and the square Pond C first appeared in the 1978 photo.  Though this finding may not advance the counterclaim, it may lend support to the credibility of CC Leung’s evidence. 

Leung Fai’s address and where did he live

92.  The next issue is the address of the place occupied by Leung Fai and his family in particular structure S1.  I have already set out above the documentary evidence of Leung Fai’s address from time to time.

93.  The Lot had been conveyed to the plaintiff’s predecessor in title Mr Ma by the conveyance on sale dated 8 June 1953.  It was before Leung Lai’s settlement in the Lot.  The schedule of properties to the conveyance described the Lot as in DD No. 99, Lin Bar Wai (the correct name should be Lin Barn Wai).  This shows that the area where the Lot situates is called Lin Barn Wai.  This is also the plaintiff’s understanding as demonstrated in the Chinese letter from the plaintiff to Leung Fai and dated 11 July 1992.  The plaintiff referred to the occupied area as “米埔近練板村新田元朗，第99約地段769 (部份)” or “(Part of) Lot 769, DD 99, Mai Po in the vicinity of Lin Barn Tsuen, San Tin, Yuen Long”.

94.  The MOT No. 5033 dated 28 May 1963 and granted by the government shows that Leung Fai’s wife, Madam Tai already had the government’s permission to build and maintain three structures on the Lot as accommodation, kitchen and porch.  This is independent evidence showing that Leung Fai’s family had already settled in the Lot in May 1963.  This MOT alone however may not be enough to prove that the three structures S1, S2 and S3 marked on the various aerial photos are those permitted under the MOT.  Indeed the dimensions of S1 are larger than those stipulated for the accommodation in the MOT though CC Leung explained that there was a rebuilding of S1.

95.  The other documents from the birth certificate of Leung Hau Wan dated 28 July 1965 onwards show that Leung Fai’s family was living in Lin Barn Wai of Mai Po.

96.  From the hire-purchase document dated 8 February 1983 onwards, Leung Fai’s address was designated as a house in Wing Hong Yuen. This was so in the two marriage certificates dated 5 July 1986 and 2 September 1997, the birth certificate of his youngest daughter, Leung Hau Ching dated 11 August 1986 as well as a letter from the Police Cadet School to his son Leung Chi Kwan dated 17 May 1985.

97.  Regarding the question of whether Leung Fai’s family had all along been living in S1, S2 and S3 or somewhere else in the Lot, I think the letters and electricity bills from CLP are useful for resolving this question.  The letters dated 18 March 1997 and 25 October 2010 confirm that Leung Fai was the holder of an electricity supply account from 3 September 1969 to 19 October 2009 and the address of supply was 106 Mai Po Tsuen, San Tin.

98.  CC Leung has explained that 106 Mai Po Tsuen is in fact CLP’s own designation of the address of supply.  It is not an address in Mai Po Tsuen which is some 700 metres away along Castle Peak Road.  He also produced the electricity bills of Ng Yuen Chong and Kwok which state their addresses as 104 and 105 Mai Po Tsuen respectively.  However, CC Leung and Kwok both denied that Leung Fai, Kwok and Ng had anything to do with the properties in Mai Po Tsuen.  The land search results of 104, 105 and 106 Mai Po Tsuen also show no connection with Kwok, Ng or Leung Fai.  Apart from the electricity bills there is nothing to link up Kwok, Ng and Leung with the three houses in Mai Po Tsuen.

99.  Furthermore, Leung Fai has disclosed the CLP letter of 18 March 1997 on 23 July 1997.  The supply address on the electricity bill has remained the same until the last bill that was produced and dated 20 April 2010.  The number of the supply meter installed on S1 is also the same as the number of the meter shown in the electricity bills.  I also accept CC Leung’s evidence that the address of 106 Mai Po Tsuen in the electricity bill gave rise to his address of 106 Wing Hong Yuen, Mai Po, San Tin in the hire-purchase agreement. 

100.  I therefore conclude that the defendant has proved on a balance of probability that the supply address stated in the electricity bills as 106 Mai Po Tsuen is CLP’s own designation for S1.  I further find on a balance of probability that Leung Lai had been living in and occupying exclusively S1 in the Lot and receiving electricity supply from CLP to that place since 3 September 1969.  I also find that he had also been occupying at the same time the structures S2 and S3 exclusively which are referred to as kitchen and porch in MOT 5033.

Pond B

101.  I now consider the occupation of Pond B by Leung Fai.  It is the evidence of CC Leung and Kwok as well as the hearsay evidence of Leung Fai that Leung Fai had been occupying Pond B exclusively since sometime before 10 September 1972.  This pond can be clearly seen in the aerial photo of 29 November 1972.

102.  Leung Fai had applied on 29 January 1966 to the Hong Kong NT Fish Culture Association for membership.  This is evidence that he was then making a living in fish breeding.  The application recorded the size of his pond at five mous with words later added to say that it was approximately twelve mous.  It is not known when his pond was enlarged.  Pond A as shown in the 22 October 1964 aerial photo was a small one.  The next photo taken on 29 November 1972 showed the enlarged Pond B.  In any case, it would have taken more than three months to enlarge Pond A to Pond B and the occupation of the Pond B area would have started before 10 September 1972.

103.  Though Leung Fai in his witness statement only referred to the making of one pond instead of the making of the small Pond A first followed by its enlargement to Pond B, he only made the witness statement on 11 November 1999 and the enlargement of the pond was in or before 1972.  It is therefore not surprising that he had forgotten about the enlargement.  The aerial photos showing the small Pond A were also not available to him as the plaintiff’s expert report was only filed on 9 February 2009 long after his death.  All in all, I accept the evidence of CC Leung, Kwok and Leung Fai and find that Leung Fai had been occupying Pond B since sometime before 10 September 1972.

The embankment

104.  The exclusive occupation of Pond B however did not necessarily entail exclusive occupation of the embankment at its north.  I do not accept CC Leung’s verbal assertion that his family had occupied the embankment exclusively at all times even if he might have thought so.

105.  Though outsiders would have little cause to go there as it was not an access to anywhere save Leung Fai’s home, the owner of the very large fishpond to the north of the embankment would certainly have the need to go on to the embankment at times to manage his fish breeding business in that pond.  In any case, Leung Fai had no need or apparent right to exclude the owner of the neighbouring pond to the north from the embankment.  Both fish breeders needed the embankment for demarcation of the boundary of their respective ponds.

106.  I also see no basis to apportion the embankment at the middle for the neighbouring owners.  The defendant’s case is adverse possession.  If Leung Fai did not have 20 years exclusive possession of the embankment, then his claim for it simply fails.

107.  I therefore find against the defendant on the claim for the embankment.  The area of Pond B as occupied by Leung Fai since before 10 September 1972 should be as shown in the plan in p. 451M as drawn by Mr Leung which was drawn against the southern side of the embankment in 1972.

The garage S4

108.  In association with the embankment is the garage S4 which was to the north of S1.  It only appeared in about 1979 if not later when the embankment was wide enough for vehicular travel.  The defendant’s claim to S4 therefore fails. 

The L-shape structures and the areas to the south

109.  I now move on to the other structures to the south of S1, S2 and S3.  I refer to the enlarged anaglyph image produced by Mr Leung at p. 451K.  This anaglyph was produced by stereoscopic pairing of two photos taken above the occupied area on 29 November 1972.

110.  At the back and to the south of S1 and S2 are two structures that formed an L-shape.  To the south of the L-shape structures is an area surrounded by fences nos. 1, 2 and 3.  Mr Leung’s interpretation of the enclosed area is that there were trees and shrubs grown on the ground. Leung Fai said in his witness statement that he had raised poultry and livestock.  He also produced a letter from Kadoorie Farm to prove that he had received their assistance in such occupation between 1968 and 1971.  But he was referring to an area that had allegedly been occupied by his fellow villager, Chow Yui Wing.  There is, however, a dispute as to where Chow used to live.  CC Leung in his evidence instead referred to this area as bounded by fences 1, 2 and 3 as where Leung Fai had kept the poultry.  The villagers would only spend money and time to build fences for a purpose.  In this case, the fences were obviously built to enclose the area.  It was indeed likely that the area was used for keeping poultry and preventing them from straying elsewhere like Pond B. 

111.  Leung Fai had been able to take possession of the L-shape structures behind S1, S2 and S3 and the enclosed area when he created the carpark.  There is also no evidence of any other occupier for these structures and area.  I accept CC Leung’s evidence and find on a balance of probability that Leung Fai had exclusive possession and occupation of the L-shape structures, the duck house to their west which was of chest height, the area between these structures on the one hand and S1, S2 and S3 on the other and the area enclosed by fences 1, 2 and 3 since sometime before 10 September 1972.  I also find in favour of the defendant that Leung Fai had exclusive possession of the footpath from the point adjacent to the corner or turning point of fences 2 and 3 then going up to the north and then turning to the west to enclose the duck house at the north. 

112.  For the rectangular area at the west of the footpath and extending up to a line drawn from the corner of fences 2 and 3 in an east-west direction to fence no. 4, CC Leung said that his family had planted some fruit trees there.  Mr Leung’s anaglyph shows that there were short trees and shrubs which were similar to the area enclosed by fences nos. 1, 2 and 3. It was also enclosed by fence no. 4 on one side and fence no. 3 and the foot path on the other.  It was close to the poultry keeping area.  I do not think Leung Fai would have tolerated intruders into this area.  I accept CC Leung’s evidence and hold that Leung Fai had assumed exclusive possession of it since before 10 September 1972.  But I find no exclusivity of possession by Leung Fai for the small area to the south of the east-west line and bordering on the government land as he would have no need for exclusive possession of it for his purposes.

113.  For the area to the south of fence no. 2, I accept that CC Leung had dug Pond D there.  However, he only did it in the summer vacation of 1973.  That was about some nine months too late.  I hold against the defendant for the claim to this area. 

Chow Yui Wing’s house

114.  Regarding the structure that is adjacent to and at the south of S5, CC Leung alleged that it was Chow Yui Wing’s house.  But he said it was unoccupied.  A study of the aerial photos reveals that this structure seemed to have assumed a different shape in 1973 and had disappeared in 1974.  A new structure appeared in the same place again in 1975.  The structure S5 was also not there all the time.  It could only have appeared for the first time in 1974 or later.  The survey sheets also show different structures at different times at this location. 

115.  I do not think Leung Fai would have kept his poultry in this area as there was no fencing to prevent the poultry from straying into Pond B at all.  I also do not find the receipts for the fees paid for Chow’s MOT 6323 useful as there is no way to find out the location of the permitted structure. 

116.  Since there is no sufficient evidence to show 20 years exclusive occupation by Leung Fai of S5 and the structure adjacent to and to the south of it, I hold against the defendant on the claim for this area.  For the same reason, I also hold against the defendant for the area that extends from these two structures to the side of fence no. 1 and the eastern edge of the L-shape structures but not going over the edge of Pond B.

The houses of the Poons and the Lis

117.  Regarding the houses of the Poons and the Lis, CC Leung alleged that Leung Fai had made some payments to them in about 1990 when Leung Fai wanted to fill up the pond to make a carpark.  However, the Poons and the Lis had already moved out of these houses in the mid-1980s. There is no evidence that they were still in possession of these houses.  Even if Leung Fai had indeed made payments to them for the houses and the areas thereunder, that is insufficient to prove that they had continued with their exclusive possession of the houses after having moved out.  Leung Fai might have mistakenly thought that they still had rights over these houses.  I also have doubt on this payment as alleged by CC Leung. It was not mentioned by Leung Fai in his witness statement.

118.  The defendant also relied on the plaintiff’s legal action in 1993 to recovery the Lot.  That action was brought against many trespassers including the Poons and the Lis.  However, that alone is not enough to show that they were still in possession of their houses on the land.  It was a blanket action to recover the whole of the Lot save the areas occupied by Leung Fai which was dealt with in this action.  I do not want to guess at the plaintiff’s reason for suing the Poons and the Lis as well.  The fact is that they had moved out in the mid-1980s.  I therefore hold against the defendant for the area that used to be covered by the houses of the Poons and the Lis.

The areas occupied by Leung Fai

119.  I summarize here my findings of Leung Fai’s exclusive occupation since before 10 September 1972.  I have found that Leung Fai’s family had lived in S1, S2 and S3.  I also find that the family would have assumed exclusive occupation of a small area outside these structures in going about their daily activities.  I therefore hold on a balance of probability that the exclusive occupation covered S1, S2, S3, Pond B and the neighbouring areas. 

120.  The occupation limit at the north is at the northernmost blue demarcation line drawn on p. 451M.  It includes the area between S2 and Pond B.  The occupation limit at the west is bounded by the edge of S3 and fence no. 4 as drawn in blue on p. 415M. 

121.  I also hold that Leung Fai had exclusive possession of the two L-shape structures, the duck house to their west, the area between these three structures on the one hand and the structures S1, S2 and S3 on the other, the area enclosed by fences 1, 2 and 3, the footpath from the point adjacent to the corner or turning point of fences 2 and 3 up to the north and then turning to the west to enclose the duck house, the rectangular area at the west of the footpath including the end of the footpath outside the duck house and extending up to a line drawn from the corner of fences 2 and 3 in an east-west direction to fence no. 4. 

122.  The limit of occupation at the east and the south (save already demarcated) is at the edge of Pond B.

Animus possidendi

123.  Having decided the question of factual possession of parts of the Lot by Leung Fai for no less than 20 years prior to the start of this action, I now deal with his intention of occupation.

124.  Leung Fai had used the structures that I have mentioned for accommodation of his family as well as for his fish breeding business.  He also occupied the neighbouring areas and Pond B for the purposes of his family and business.  Though he had for several years in the 1980s stopped fish breeding as a business and changed to selling sweet soups for living, he was still keeping the exclusive possession of Pond B, the structures and the neighbouring areas.  The aerial photos show no change to the area and Pond B until his reclamation for a carpark.

125.  He was obviously occupying these areas in his own name and on his own behalf and excluded the world at large.  He indeed intended to stay there for as long as he could and for his own benefit (see Pye v Graham [2003] 1 AC 419 at 436A-B).  He was exercising the ordinary rights of ownership over the parts he occupied and in the assumed character of an owner (see Cheung Yat Fook v Tang Tak Hong [2004] 2 HKLRD 86 at 89B-E). I therefore hold that Leung Fai had occupied the parts that I have decided in his favour with the necessary animus possidendi.  I further hold that the plaintiff’s title to such parts of the Lot has been extinguished under section 17 of the Limitation Ordinance, Cap. 347.

Direction to the experts

126.  I now direct the experts to make use of the plan at p. 451M to draw up an agreed boundary enclosing the parts of the Lot that I have decided in favour of the defendant on the counterclaim.  The agreed plan shall be filed within 14 days and it shall be annexed to the order and judgment to be sealed.  If the experts cannot come to an agreed boundary within 14 days, the parties shall fix a 9:30 a.m. hearing within the 14 days thereafter for me to fix the boundary.

Delivery up of other areas

127.  Since the defendant has not succeed in counterclaiming the whole of the yellow area in D’s plan, the defendant shall deliver up to the plaintiff all parts of the Lot save those that are within the boundary that I have indicated above.

Other relief

128.  The plaintiff also claims an injunction to restrain the defendant from entering Pond B.  Since the defendant has succeeded in the counterclaim in respect of this pond, no injunction will be granted.

129.  The plaintiff also seeks an account of income and benefit received by the defendant and/or mesne profits arising out of or derived from the use of the Lot.  However, there is no submission on the basis for the account which may be restitutionary.  There is also no evidence of the rental value or any valuation evidence of any part of the Lot that has been wrongfully occupied by the defendant.  I therefore refuse this claim.

130.  The plaintiff also seeks damages from the defendant. I have already referred to the lack of evidence of the rental value or any valuation evidence.  I therefore only grant nominal damages to the plaintiff in the sum of $100.

131.  The plaintiff also seeks to vacate the registration of the Amended Defence and Counterclaim and the Re-Re-Amended Defence and Counterclaim with plan from the Land Registry.  Since the defendant has succeeded substantially in the counterclaim, I will not grant this relief save that I do order that the plan annexed to the Re-Re-Amended Defence and Counterclaim be replaced by the plan to be drawn up with the agreed boundary or the boundary that I shall decide.

COSTS ORDER NISI

132.  Since the plaintiff has succeeded in a small part of the claim and the defendant has succeeded substantially in the counterclaim, I therefore make a costs order nisi that the plaintiff do pay the defendant 75% of the costs of the action including the counterclaim with certificate for counsel and the defendant’s own costs be taxed in accordance with the Legal Aid Regulations.