RAI JAGINDRA AND OTHERS v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF CHOW SUN, DECEASED

DCCJ 1369/2022

[2023] HKDC 1220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1369 OF 2022

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REASONS FOR JUDGMENT

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A.  Introduction

1.  In this case, Ps claim for adverse possession against Flat B on 6/F & Roof, Tak Yan House Stage Eight, No 31 Tsuen Wan Market Street, Tsuen Wan, New Territories, Hong Kong (the Property).

B.  Background Facts

2.  P’s case on their Statement of Claim are as follows.

3.  The paper owner of the Property was Mr Chow Sun.

4.  The Property had two portions – the lower floor unit (6/F) and the upper floor unit (Roof).

5.  Chow lived on the Roof. In 2004, Chow leased out 6/F to P1’s sister, Rai Nirmala; she lived there with her husband and P1, P2 and P3.

6.  On 6 May 2005, Chow passed away.

7.  Shortly thereafter in May / June 2005, Rai Nirmala and her husband moved out; Ps changed locks to both 6/F and the Roof and started occupying them. Since then, access to both were only with Ps’ consent. Ps also settled the management fees, rates, Government rent, utility bills and cleaning fees of the Property.

8.  Ps’ case therefore is that since May / June 2005 they are joint adverse possessors.

9.  Ps were unable to locate representatives for Chow. Probate searches did not generate results. No instrument had been registered in the Land Registry. A Law Society will search also did not receive any response.

10.  Ps also took the step to write to the Department of Justice, and apparently on 27 July 2022 response was given that the Government is not minded to claim bona vacantia over the Property.

C.  Procedural History

11.  The Writ herein was taken out on 27 April 2022.

12.  On 13 April 2023, Master B Mak made an order by consent appointing the Official Solicitor to represent Chow’s estate for the limited purpose of accepting service of the Writ (as amended with Statement of Claim endorsed).

13.  On 18 April 2023, the Official Solicitor was served.

14.  No acknowledgement of service had been filed.

15.  On 29 May 2023, Master Timon Shum ordered that this Action shall proceed in the absence of any person representing Chow’s estate and any judgment made in this action shall bind Chow’s estate.

16.  On 23 June 2023, Ps took out the present Summons for default judgment.

D.  Analysis

17.  Mr Osmond Lam (with him, Mr Dexter Leung) provided this court with detailed submissions on the law and the facts, for which this court is grateful.

18.  First, as to the present application being one of default judgment:-

(a)  The general rule is that the court cannot receive any evidence and must consider whether to give judgment based on the pleadings: see Chueng Sai Lon v Cheung Sai Ha [2020] HKCFI 2551 per Coleman J at §§29-30.

(b)  While the court generally would not grant declarations, it may do so in an appropriate case, and such has been done in the context of adverse possession cases: Lam Kin Lai v Li Ha Ching [2020] HKCFI 751 at §17 per DHCJ To.

19.  Second, the law in relation to adverse possession is relatively trite. What has to be proven are (1) factual possession; and (2) intention to possess (animus possidendi): see Tsang Foo Keung v Chu Kim Mi Jimmy [2017] HKC 527 at §22 per Harris J.

20.  On the pleaded facts, it appears to me that these elements are made out. Ps had been in factual possession since May / June 2005 when Rai Nirmala and her husband moved out, and locks were changed. The fact that they had excluded others and only granted access to the Property to persons with their consent also manifests their animus possidendi.

E.  Conclusion

21.  On the basis of the above, I make the following orders:-

(a)  The plaintiffs have been in possession of Flat B on 6/F & Roof, Tak Yan House Stage Eight, No 31 Tsuen Wan Market Street, Tsuen Wan, New Territories, Hong Kong (the Property) for a continuous period exceeding 12 years;

(b)  All rights, interest and title of the defendant in the Property have been extinguished and the defendant is barred from recovering the same by virtue of section 17 of the Limitation Ordinance (Cap 347);

(c)  The plaintiffs have acquired an indefeasible possessory title to the Property as joint tenants;

(d)  There be no order as to costs of this Action.

22.  I thank Counsel for their assistance.